Judgment accordingly,

(a.) The New Jersey Doctrine.

Ruckman V. Outwater

28 NEW JERSEY LAW, 581. - 1860

HAInes, J. - To an action of assumpsit, the plaintiff in error [Ruckman], who was the defendant below, pleaded payment with a notice of set-off. in which he charged the plaintiff below with a quantity of manure sold and delivered. To sustain this charge, he gave in evidence a deed of conveyance, from the plaintiff to him, of a farm, in the county of Bergen, containing no exception or reservation of manure or of fixtures. And he further proved that the plaintiff, by his consent, remained in the possession of the premises after the execution of the deed, and that, while he continued in such possession, the plaintiff took and carted away the manure, which was lying in and spread over the barn-yard, and not in heaps, at the time of the sale and conveyance of the farm.

The court was requested to charge the jury that the manure so lying in the barn-yard, and not in heaps at the time of the sale and conveyance of the farm, if not reserved by the vendor, passed by the deed with and as a part of the farm. The court refused so to charge, but instructed the jury, in effect, that the title to the manure did not pass by the deed, and that the defendant, as pur-chaser of the farm, could not claim as of right the manure that had accumulated in the barn-yard. On this the error is assigned, and the judgement sought to be reversed

The question thus presented is, whether, by the deed of conveyance of a tract of land without any clause of reservation, the title to the manure lying in and around the barn-yard, where it had accumulated, passed to the grantee.

By an ordinary deed of conveyance of land nothing passes to the grantee but the real estate and its appurtenances, and whatsoever is so attached or affixed to it, that it cannot be removed without injury to the freehold. Hence the question arises, whether manure so lying in a barn-yard is a part of the real estate, or an appurtenant to it, or so attached to the freehold that it passes with it by virtue of the deed of conveyance.

The question is not to be determined by the rules of law regulating fixtures, for the property in question is in no respect a fixture, an article of a personal nature affixed to the freehold, and which cannot be removed without injury to it, nor is it claimed as such. It is claimed as a part of the freehold itself, an appurtenant to it, and which, for the sake of agriculture and good husbandry, should not be removed.

But, as between the grantor and grantee, I can discover no reason, nor can I find any satisfactory authority for such claim. Manure in the yard is as much personal property as the animals and the litter from which it is produced, as much so as the grain in the barn or the stacks of hay in the meadow. And it is not material whether it lies up in heaps or scattered around the yard; whether as thrown from the doors or windows of the stable; or where it accumulated from the droppings of the cattle. But when it is spread upon the land, and appropriated to it for fertilizing purposes, then, and not until then, does it become a part of the freehold. Posts and rails, designed for the farm, are personal property so long as they remain in piles or otherwise unappropriated; but as soon as they are converted into fence they become a part of the freehold affixed to it, so as to lose the character of personalty. As well may the timber, stones, and other materials brought together for the construction of a building be regarded as a part of the farm before the building is erected, as the manure before it is applied. Between the vendor and the vendee the rule, as to what is personal and what real estate, is the same as between the heir at law and the executor. As between the latter, it obtains with the most rigor in favor of the inheritance and against the right to consider as personal property anything which has been affixed or is appurtenant to the freehold. Yet, as between them, manure has ever been regarded as personal property and sold by the executor without a question of the right to do so. In 1 Williams on Executors, 511, we find it declared " that dung in a heap is a chattel, and goes to the executor; but if it lies scattered on the ground, so that it cannot well be gathered up without gathering a part of the soil with it, then it is parcel of the freehold." Toller, in his Law of Executors, page 150, says: "Manure in a heap, before it is spread on the land, is a personal chattel." In Carver v. Pierce, Styles, 66, cited in 11 Vin. Abb. 175, Executor 2, Roll, J., as early as Mich. Term of 23 Charles, held that dung in a heap is a chattel, but if spread upon the land it is not.

Such is the rule of the common law, and also of the ecclesiastical law, and as we have no statute on the subject, it is also the law of New Jersey, and I can find no satisfactory reason in any commentary or in the adjudication of other states for changing the rule.

In 2 Kent's Com. 346, it is laid down that manure lying upon the land, and fixtures erected by the vendor for the purpose of trade and manufactures, such as potash kettles, pass to the vendee of the land. But the author is there treating of fixtures, and refers for authority to cases which, so far as they relate to manure, cannot be sustained on the principles of the common law, as between vendor and vendee, or landlord and tenant, in the absence of some covenant or local custom to control them. Miller v. Plumb, 6 Cowen, 665, relates strictly to the question of fixtures, the right to potash kettles, troughs, and leaches. In Kirwan v. Latour, 1 Har. & Johns. 289, the right to a still-house apparatus and utensils for carrying on a distillery was a question. Powell v. Monson, 3 Mason, 459, relates to the mill-wheel and gearing of a factory, and Farrar v. Stackpole, 6 Greenl. R. 154, to the fixtures of a saw-mill. Unless the discriminating commentator can be supposed to have adopted the fallacy of the reasoning in Kittredge v. Woods, 3 New Hamp. R. 503, it is fair to presume that, in speaking of manure lying upon the ground, he had reference to such as had been spread upon the land, and appropriated to it.