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Leigh v. Lynch





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Edwards County, the Hon. Bruce Saxe, Judge, presiding.


This action arose following the sale of a parcel of land in Edwards County. The plaintiff, Benny Leigh, a tenant farmer under a year-to-year oral lease, seeded 32 acres of clover on the land prior to its sale. The defendant, Charles Lynch, the new owner of the property, destroyed the clover some five months after plaintiff's lease expired, but approximately two months before the crop would mature. The plaintiff maintained that under the doctrine of emblements he was entitled to re-enter the premises and harvest the clover. He initiated this action to recover income allegedly lost as a result of defendant's action. The circuit court of Edwards County entered judgment for the defendant. The appellate court reversed (133 Ill. App.3d 659), and we granted defendant leave to appeal.

The record discloses that, for 14 years under an oral year-to-year lease, the plaintiff, Benny Leigh, farmed property in Edwards County owned by Ralph and Betty Troup. In January 1982, plaintiff seeded clover on 32 acres of the Troup property in a cover crop of wheat. This clover could have produced a crop of stubble hay in August or September of 1982 after the wheat had been harvested. It would have matured to produce a crop of seed and hay in July 1983.

On September 1, 1982, plaintiff received written notice that the Troups were selling the property and that his tenancy would be terminated as of January 1, 1983. On October 21, 1982, the Troups completed the sale of their property to the defendant, Charles Lynch. In February 1983, the plaintiff sent a letter to Ralph Troup stating that the clover crop was his and that he intended to harvest it. In May or June of 1983, the defendant destroyed the 32 acres of clover. The plaintiff then filed a one-count complaint in the circuit court of Edwards County, seeking damages for his loss of income.

During the bench trial of this cause, the plaintiff testified that he did not harvest the stubble hay in 1982, because he had no need for it, and because the hay and seed he intended to harvest in July 1983 would have brought a better price. The court found that the plaintiff was entitled to the net profit he would have realized had the clover not been destroyed. Judgment was entered for the plaintiff in the amount of $3,000, based upon the market prices for the respective crops and the projected yield of the clover.

The defendant promptly filed a motion to vacate the judgment. After examining the pleadings and hearing the arguments of counsel, the trial court set aside its initial judgment and entered judgment for the defendant. In its order, the court found that the defendant, not the plaintiff, had been entitled to possession of the property for the time periods involved. The court also found the planting of a two-year crop to be irrelevant to the issue of termination of the plaintiff's farm tenancy. The plaintiff appealed this decision.

The appellate court reversed the trial court's final decision and entered judgment for the plaintiff in the amount of $3,000. (133 Ill. App.3d 659.) The court concluded that the doctrine of emblements could be applied to a perennial crop such as clover. (133 Ill. App.3d 659, 663.) The court then found that since this clover had been planted by the plaintiff for his own profit, he should have been allowed to harvest it at maturity. (133 Ill. App.3d 659, 664.) We granted the defendant leave to appeal pursuant to Rule 315 (94 Ill.2d R. 315(a)).

Section 9-206 of the Code of Civil Procedure provides that "[i]n order to terminate tenancies from year to year of farm lands * * * notice to quit shall be given in writing not less than 4 months prior to the end of the year of letting." (Ill. Rev. Stat. 1983, ch. 110, par. 9-206.) There is no question that the plaintiff received proper notice of the termination of his tenancy.

Illinois has long recognized the right of a tenant who holds farmland for an indeterminate period to remove from the land, after the termination of his tenancy, the emblements which he planted prior to such termination. (Keays v. Blinn (1908), 234 Ill. 121, 123; Roberts v. McAllister (1922), 226 Ill. App. 356, 359; Jones v. Ritter (1917), 206 Ill. App. 487, 491.) The right is the privilege (Brown, Personal Property sec. 17.2, at 590 (1975)) of ingress and egress for necessary purposes, not a right of possession, and it must be exercised within a reasonable time after the tenancy has ended (21A Am.Jur.2d Crops sec. 25 (1981)). Since he possesses no estate or interest in the land itself, the tenant's privilege is analogous to a license, not an easement. (See Mueller v. Keller (1960), 18 Ill.2d 334, 340.) Any subsequent landowner takes possession of the property subject to this limited privilege. (See Roberts v. McAllister (1922), 226 Ill. App. 356; see also Falk v. Amsberry (1977), 279 Or. 417, 569 P.2d 558; 21A Am.Jur.2d Crops sec. 25 (1981).) The purpose behind this doctrine is the encouragement of agriculture and the protection of the tenant's interest. If the right of emblements did not exist, the tenant would be deterred from putting the premises in crops or at least in certain kinds of crops. (Roberts v. McAllister (1922), 226 Ill. App. 356, 359.) The term "emblements" is at times referred to as a doctrine or a right. It is also used as a classification of crops to which a tenant is entitled after the termination of the tenancy, referred to as "away-going crops." (See 21A Am.Jur.2d Crops sec. 2, at 599 (1981).) It has also been held that the term "emblements" is synonymous with fructus industriales. See 25 C.J.S. Crops sec. 4, at 7 (1966).

In this action, we must determine to what extent, if any, this doctrine should be applied to clover, a perennial crop. The plaintiff urges that this right should be extended to allow a tenant farmer to harvest the first mature crop from any perennial planted prior to the termination of his tenancy. We cannot agree.

Traditionally, the doctrine of emblements applied only to fructus industriales, or any species "which ordinarily repays the labour by which it is produced, within the year in which that labour is bestowed, * * * things yielding present annual profit * * *." (Graves v. Weld (1833), 5 Barn. & Adol. 105, 118-19, 110 Eng. Rep. 731, 736; see also Hendrixson v. Cardwell (1876), 68 Tenn. 389.) Thus the doctrine was limited to crops such as corn, wheat, vegetables and the like. (Reiff v. Reiff (1870), 64 Pa. 134, 137; Annot., 47 A.L.R.3d 784, 796 (1973); 21A Am.Jur.2d Crops secs. 2, 25 (1981).) A plant with perennial roots, such as clover, was classed as fructus naturales (21A Am.Jur.2d Crops sec. 2 (1981); 25 C.J.S. Crops sec. 3 (1966)), which fell outside the operation of the doctrine (Reiff v. Reiff (1870), 64 Pa. 134, 137). This definition is now generally held to be too restrictive in light of modern agricultural practices.

Over time, the concept of fructus industriales and of emblements expanded to include growing crops which owe their perfection and abundance to the tenant farmer's initiative, labor, and expense during the agricultural year. (Gentry v. Alexander (1949), 311 Ky. 344, 345-46, 224 S.W.2d 143, 144; see also 21A Am.Jur.2d Crops sec. 25 (1981); Annot., 47 A.L.R.3d 784, 796 (1973); 25 C.J.S. Crops sec. 3 (1966).) Under the rule as set forth in the Restatement of Property there are embraced both crops which the tenant has actually sown and those such as orchard fruits in which the tenant's labor is essential to production of the crop though the trees would remain part of the realty. (Restatement (Second) of Property sec. 12.3, Reporter's Notes, at 478-79 (1977).) Under this construction, perennial plants may be classified as emblements if they require "extensive cultivation each crop year in order to bring forth the crop." (Annot., 47 A.L.R.3d 784, 788 (1973).) Thus, crops such as hops, sugar cane (Restatement of Property sec. 121, comment f (1936)), and some artificial grasses (2 Tiffany, Real Property sec. 600, at 543 (3d ed. 1939)), may be included within the modern statement of the doctrine.

The appellate court classified the clover crop in question as fructus industriales based upon the plaintiff's intent or purpose for planting the crop. (133 Ill. App.3d 659, 663-64.) We do not agree that intent should be the criterion for determining whether the doctrine of emblements should be applied in a particular case. The difficulties in determining a tenant farmer's intent or purpose for planting a particular perennial crop are readily apparent. For example, the determination may have to be made many months after planting; a contemporaneous expression of intent by the tenant may be lacking, or the species involved might be equally suited as a cash crop or a permanent enhancement to the land. In our case, for example, it is argued that the tenant, when he seeded the clover, ...

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