Callahan v. Stanley

McKee, J.: This was an action to recover damages for unlawfully preventing the plaintiff from pasturing his sheep upon certain stubble, to wit: the growth of wheat, oats, and barley remaining after harvest time upon the cultivated and uncultivated portions of a certain tract of land which the assignor of the plaintiff had leased to the defendant.

It appears that on the 28th of October, 1876, one Aurrecochea leased to the defendant for the farming season to end [478]October 1st, 1877, about eight hundred and forty acres of land in the County of Alameda. By the terms of the lease, the defendant covenanted as follows: “That he will till and cultivate said premises in a good, farmer-like manner. That he will, in due and proper seasons, sow said premises to wheat, oats, or barley, or proportions of each, and will harvest the same at his own cost, charges, and expense, as soon as the same is suitable for harvesting. That he will immediately upon harvesting the same, thresh, clean, and sack, in good, new, merchantable sacks, all the grain of every description raised on said premises, and as threshed and sacked shall be divided in the field and piled separately. One-fourth of which shall be delivered to Aurrecochea'as and for the yearly rental. And all the hay thereon raised on land not plowed by the party of the second part shall belong to the party of the first part; and all hay cut on said. land that may be plowed and cultivated by the party of the second part shall be divided in the field equally between the parties hereto, to be cut and stacked by the party of the second part. All the stubble on said land to belong exclusively to the party of the first part ”—the landlord.

Defendant sowed the entire premises in grain, as provided by the lease, but cut only about two hundred acres, leaving the remainder uncut, because, in consequence of the extreme dryness of the season, the crop was of scanty growth, and although there was some little grain in it, yet there was not enough to make it worth harvesting. So, instead of cutting it, he turned in upon it his sheep, and pastured them there during the months of August and September, 1877; and in the month of August, when the plaintiff to whom Aurrecochea had assigned the stubble drove about 2,000 sheep upon the land for pasturage, he drove them away and prevented the plaintiff from using it for that purpose, upon the ground that the uncut grain was not stubble, to which the landlord, or the plaintiff as his assignee, was entitled under the lease. And that was the question at issue.