This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
On the principle of public policy before! referred to, and likewise by reason of the tenant's obligation to use the land in accordance with the dictates of good husbandry, a tenant for pears or at will cannot, in the absence of an agreement or custom to the contrary, remove from the land manure which results from the feeding to his stock of crops raised on the land.6 But, as in the case of a conveyance of the land, since the reason of the rule does not apply in the case of manure which does not result from crops raised on the premises, the rule does not itself apply in such case, so as to prevent removal by the tenant.7 The question of the tenant's right to remove the manure is independent of whether it is
6. Fay v. Muzzey, 13 Gray 'Mass.) 53; Needham v. Allison, 24 N. H. 355; Proctor v. Gilson, 49 N. H. 62; Snow v. Perkins, 60 N. H. 493, 49 Am. Rep. 333. In Collier v. Jenks, 19 R. I. 137, 61 Am. St. Rep. 741, 32 Atl. 208; it was decided, upon the same theory, that a conveyance of a small portion of a farm did not pass manure made from the whole farm, which happened to be piled on such portion.
6. Parsons v. Camp, 11 Conn. 530; Brigham v. Overstreet, 128 Ga. 447, 10 L. R. A. (N. S.) 452, 5. S. E. 484; Gallagher v. Shipley. 24 Md. 418, 87 Am. Dec. 611; Daniels v. Pond, 21 Pick. (Mass.) 371, 32 Am. Dec. 269; Sawyer v. Twiss, 26 N. H. 345; Perry v. Carr, 44 N. H. 118; Middlebrook v. Corwin, 15 Wend. (N. Y.) 169; Lewis v. Jones, 17 Pa. St. 262, 55
Am. Dec. 550; Wetherbee v. El lison, 19 Vt. 379. A contrary decision has been rendered in North Carolina. Smithwick v. Ellison. 24 N. C. 326, 38 Am. Dec. 697. And in Maine it has been decided that the restriction upon the removal of manure by the tenant applies only to such as is made by him during the last year of the tenancy, he himself being the sufferer by the removal of that previously made. Staples v. Em ery, 7 Me. 201.
7. Gallagher v. Shipley, 24 Md. 418, 87 Am. Dec. 611; Daniels v. Pond. 21 Pick. (Mass.) 367, 32 Am. Dec. 269; Needham v. Allison, 24 N. H. 355; Corey v. Bishop, 48 N. H. 146; Snow v. Perkins, 60 N. H. 493, 49 Am. Rep. 333; Pickering v. Moore, 67 N. H. 533, 31 L. R. A. 698, 68 Am. St. Rep. 695, 32 Atl. 828; Carrell v. Newton, 17 in heaps or scattered over the premises.8 It may, however, be controlled by custom or agreement.9
It has occasionally been asserted that the tenant's preclusion to remove manure exists only in the case of a lease for agricultural purposes.10 A lease of a milk farm has, however, been regarded as a lease for such purposes.11