Exceptions sustained.

2. Lands Not Agricultural or Not to be Used for Agri cultural Purposes.

Fay V. Muzzey

13 Gray (Mass.), 53. - 1859. [Reported herein at p. 339.]

Needham V. Allison

24 New Hampshire, 355. - 1852.

Bell, J., delivered the opinion of the court. - It is settled here that manure, as between the buyer and seller, passes with the land, whether it is drawn out upon the land for the purpose of use there, or is lying in heaps, or otherwise, about the barns or yards. Kitt-redge v. Woods, 3 N. H. Rep. 503. The same is regarded as the law elsewhere in this country. Stone v. Proctor, 2 D. Chip. 115 ; Wether-bee v. Ellison, 19 Vt. (4 Wash.) 379; Lassell v. Reed, 6 Greenl. 222; Middleborough v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142; Daniels v. Pond, 21 Pick. 371.

That principle, however, does not reach this case, since there is here no question except in relation to the manure made upon the premises subsequently to the sale, and while the defendant may be regarded as a tenant of the purchaser.

In England, in the case of manure made by a tenant of merely agricultural property, in the ordinary course of husbandry, Chancellor Kent seems to be of the opinion that the custom is for the outgoing tenant to sell or take away the manure. 2 Com. 347, n., a. He cites Roberts v. Barker, 1 C. & M. 809, and the cases of Higgon v. Mortimer, 6 C. & P. 616; Hutton v. Warren, 1 M. & W. 466; 2 Gale, 71; Beatty v. Gibbons, 16 East, 116, support that view, while the cases.of Brown v. Crump, 1 Marsh. 567; Putney v. Sheldon, 5 Ves. 147, 260, n., and Onslow v. ------, 16 Ves. 173, seem to countenance a different rule, where there is no special contractor custom of the country.

In this country, in some of the States, it has been held that the manure made by the tenant during his term, is his property, which he has the right to remove or sell, and which may be attached and holden as his property for the payment of his debts. Staples v. Emery, 7 Greenl. 201; Southwick v. Ellison, 2 Iredell, 326.

In others, it is held that in the absence of special agreement, or a special custom, the rules of good husbandry require that the manure made upon a farm, in the ordinary course, should be expended upon it; that such manure is an incident of the freehold, and belongs to the landlord, subject to the right of the tenant to use it in the cultivation of the land; and that the tenant has no right to remove or dispose of it, or to apply it to any other use, either during or after the expiration of his tenancy. Wetherbee v. Ellison, 19 Vt. (4 Wash.) 397; Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142; Lassell v. Reed, 6 Greenl. 222; Daniel v. Pond, 21 Pick. 371; to which add Kent's Opinion, 2 Com. 347, n., a.

But it is urged upon us, that whatever may be the rule as to agricultural property, it is here immaterial because the tenancy was not for agricultural purposes, in the ordinary course of husbandry. By his deed, the defendant reserved the possession of the property from its date in September, till the first of April following. He owned the hay and stock from which this manure was made. He was under no obligation to keep either upon the place, except for his own convenience, and he was bound by no duties to the purchaser resulting from contract, either express or implied, except that of giving up the possession on the first of April.

It was substantially, so far as this question is concerned, a reservation of the buildings merely, since the season of farming operations was chiefly passed, and the rights of the parties were rather like those of the lessor and lessee of livery stables, or the like, than those of farming tenants. There would seem to be no doubt that as to this kind of buildings there would be no pretense that the lessor would have any claim to the manure, except such as might result from express contract. Daniels v. Pond, 21 Pick. 367; Lassell v. Reed, 6 Greenl. 222.

This view strikes us as just and reasonable, and most consistent with the reasonable understanding and expectations of the parties. No one can doubt that this must have been the idea of the defendant, or he would have made his reservation clear in this respect. And it is not easy to imagine that the plaintiff should leave it a subject for a doubt, if he supposed he was to have this manure, and it was so understood. Upon this ground we are of opinion there must be

Judgment for the defendant.

Haslem V. Lockwood

37 Connecticut, 500. - 1871.

Park, J. - We think the manure scattered upon the ground, under the circumstances of this case, was personal property. The cases referred to by the defendant to show that it was real estate are not in point. The principle of those cases is, that manure made in the usual course of husbandry upon a farm is so attached to and connected with the realty that, in the absence of any express stipulation to the contrary, it becomes appurtenant to it. The principle was established for the benefit of agriculture. It found its origin in the fact that it is essential to the successful cultivation of a farm that the manure, produced from the droppings of cattle and swine fed upon the products of the farm, and composted with earth and vegetable matter taken from the land, should be used to supply the drain made upon the soil in the production of crops, which otherwise would become impoverished and barren; and in the fact that manure so produced is generally regarded by farmers in this country as a part of the realty and has been so treated by landlords and tenants from time immemorial. Daniels v. Pond, 21 Pick. 367; Lewis v. Lyman, 22 Pick. 437; Kittredge v. Woods, 3 N. Hamp. 503; Lassell v. Reed, 6 Greenl. 222; Parsons v. Camp, 11 Conn. 525; Pay v. Muzzy, 13 Gray, 53; Goodrich v. Jones, 2 Hill, 142; 1 Washb. on Real Prop. 5, 6.

But this principle does not apply to the droppings of animals driven by travelers upon the highway. The highway is not used, and cannot be used, for the purpose of agriculture. The manure is of no benefit whatsoever to it, but. on the contrary, is a detriment; and in cities and large villages it becomes a nuisance, and is removed by public officers at public expense. The finding in this case is, " that the removal of the manure and scrapings was calculated to improve the appearance and health of the borough." It is, therefore, evident that the cases relied upon by the defendant have no application to the case.