In Kittredge v. Woods, 3 New Hamp. R. 503, decided in 1829, Ch. Just. Richardson, in a very elaborate opinion, held that all manure, whether it be in heaps about barns or made in other places on the land, goes with the land to the vendee. As this is a leading case, which has been followed and relied upon by the courts in nearly all the cases in New England and New York, it may be proper to examine the principles on which it is based.
After discussing the law of fixtures between parties in their various relations, the Chief Justice refers to authorities to show that things which, although not affixed to the freehold, go to the heir as appurtenances to the inheritance, namely, doves able to fly, which with the dove-cote go to the heir, while young doves in the dove-house not able to fly belong to the executor. He refers, also, to the keys of the doors and to chests containing the title deeds, which go to the heir, and then adds: "We are inclined to think that the principle of these decisions will give to the heir the manure which may be carried out and left upon the field in heap for dressing, or which may be left lying in heaps about the barns upon the land."
But I am at a loss to perceive how the rules for the disposition of such articles can change or modify the equally well-settled rules as to manure. Doves are animalsferae naturae, except when in the care or custody of an owner, as when confined in a dove-cote or pigeon-house, or when in the nest not able to fly. Bouvier's L. Dict. 448, title Dove. When not in such care they are not, in contemplation of law, the property of any individual, and are not the subject of larceny. 2 East Pl. Crown, 607, § 41. But young doves, not able to fly or leave the cote, may be the subject of ownership, and as personal property, go to the executors, while those able to fly are not strictly property, personal or real, and go where they please, and alight where they list. If there be any ownership in such birds, it is in the nature of heirlooms, and as such, like hares in a warren, or fish in a pond, go to the heir with the inheritance.
So title deeds are not personal property, and the stealing of them is no larceny, but only a trespass, because they concern the land, or, in technical language, savor of realty, and are considered a part of it by the law; and so they descend to the heir, together with the land which they concern. 4 Bl. Com. 234. They are necessary to secure the enjoyment of the land, and are annexed to, and are called heirlooms, and descend with the inheritance to the heir. 2 Bl. Com. 28; 14 Viner's Abr. 291. And the boxes or chests in which they are contained, and which are necessary to their preservation, go with the deeds, as do the tapes and strings that tie them. On the same principle, the keys of the doors of the house are a part of the inheritance, and go with it. These articles are all regarded as belonging to the freehold, although in fact severed from it. Having been appropriated to the land, like boards which have fallen from the fence or building, or like a mill-stone which has been lifted from its bed for the purpose of being picked, they continue to be a part of it. Hence, I have ventured to characterize the reasoning and deductions of the case as fallacious.
Daniels v. Pond, 21 Pick. 367, decided in 1838, has also been considered as a leading case in relation to manure. In the opinion of the court, expressed by Chief Justice Shaw, it was declared that manure made on a farm occupied by a tenant at will or for years in the ordinary course of husbandry, consisting of collections from the stable and barn-yard, or of compost formed by an admixture of these with the soil or other substances, is by usage, practice, and general understanding, so attached to and connected with the realty that, in the absence of any express stipulation on the subject, the outgoing tenant has no right to remove it, or to sell it to be removed. This opinion is expressly based on usage, practice, and general understanding, and is consequently of no value in a case where there is no proof of any such usage or practice.
In Middlebrook v. Corwin, 15 Wend. R. 170, determined in 1836, Nelson, J., cites the English authorities above referred to as fixing the rule on this subject, and adds, perhaps this rule is to be taken with some qualifications.
The practice and usage of the neighboring country, and even in relation to a particular farm, should enter into the decision of the question; because the parties are presumed to enter into the engagement with reference to it, where there is no express stipulation. And he concludes a tenant has no right to remove the manure. While this case recognizes the rule of the common law, it seeks to modify it by the consideration of local usage; but it can have no weight against that rule in this case, where there is no evidence of any such usage.
The cases thus referred to and considered are leading cases, and have had their influence on those which followed them, and it is sufficient for the present purpose to say, that although they are entitled to great respect and to much weight where they are applicable, yet that the reasoning and the principle of none of them are such as to induce us to make innovation upon the rule of the ecclesiastical and common law long recognized and maintained by us.
The conclusion is that manure lying in and around the yard, not spread upon the land, is personal property, and does not by virtue of the deed of conveyance pass with the freehold; that there is no error in the charge of the court below, and that the judgment must be affirmed with costs
/>. As between landlord and tenant.
r5 Wend. (N. Y.), 169. - 1836.
By the Courts Nelson, J. - It is laid down in several books, that manure in heaps, before it is spread upon the land, is a personal chattel. 11 Viner, 175, tit. Executors; Toll. L. of Ex. 150; Matthew's