Opinion
June Term, 1842.
1. A tenant who is about to remove has a right, where there is no covenant nor custom to the contrary, to all the manure made by him on the farm. It is his personal property and he may take it with him. But the manure ceases to be his if he leaves it when he quits the farm.
2. Taking up with the manure the slight portion of the earth which is necessarily mixed with it in ranking it into heaps will not make the tenant a tort feasor.
APPEAL from Dick, J., at Fall Term, 1841, of MARTIN.
B. F. Moore for plaintiff.
J. H. Bryan and J. Allen for defendant.
This was an action on the case brought to recover damages done to a lot in the town of Williamston. The declaration contained a count in case for removing from the said lot heaps racked up for manure and a quantity of rails, and a count in trover for the articles alleged to have been removed. The plaintiff first offered in evidence a deed from Asa Biggs to him, dated 18 February, 1841, conveying the lot in question, and also a deed in trust from Thomas R. Coffield to the said Asa Biggs, dated 26 February, 1840, by which the said Biggs was authorized to sell and convey the said lot. It was admitted that the defendant had rented the lot from Thomas R. Coffield for the year 1840, and (327) that the defendant continued to hold and possess the same until about 25 February, 1841, when he surrendered the possession and the plaintiff took it. The plaintiff then proved a sale of the lot by the trustee, As a Biggs, on 18 February, 1841, at which sale the defendant was present, and set up no claim thereto. The plaintiff further proved that after the said day of sale the defendant, which in possession of the lot, removed a quantity of rails which had been used for fencing the lot, and a quantity of manure which had been raked up into heaps before 18 February, the day of sale; and that after 18 February, and before the removal of the said articles, the plaintiff's had forbidden him to do so. It was stated by Long, one of the plaintiff's witnesses, that the heaps of manure had a portion of soil raked up in them. The plaintiff here closed his case.
The defendant, by his counsel, moved to nonsuit the plaintiff on this evidence, which motion was overruled by the court. The defendant then proved by Thomas R. Coffield, from whom he had rented the lot, an agreement for the lease of the said lot for 1840, and that whatever was annexed thereto for the accommodation or use of the defendant, by him, he should have liberty to remove; and he further proved that the said lot was without fence of any sort at the time it was leased, and that the defendant placed the rails thereon. The defendant then introduced a witness who stated that the manure was in large heaps, part of it in the garden and part near the site of an old kitchen in the yard. This witness, who lived with the defendant, further stated that the pile of manure in the yard was made from the decayed litter of the woodpile and the sweepings of the yard, and had no appearance of containing a part of the soil, and that the heap in the garden was near a hog-pen placed there by the defendant.
His Honor charged the jury that the defendant had a right to remove the rails, and that the plaintiff could not recover for them; and if the defendant took nothing more from the lot than what he had carried there, or if the heaps which he carried away was manure which had been made by his own industry or out of materials which he (328) had furnished, then the plaintiff could not recover for that either. But if the defendant had carried away a part of the soil, then the plaintiff would be entitled to recover, for the defendant had no right to carry away any part of the soil. His Honor was requested by the defendant's counsel to charge that if the manure was raked up into heaps before the day of sale, it was personal property, and did not pass by the deed from Biggs, the trustee, to Smithwick, the plaintiff. This instruction the court refused to give, but charged the jury that if Ellison took away nothing more than he carried there, he had a right to do so, but had no right to carry away any part of the soil. The defendant's counsel also prayed the court to charge the jury that if the soil were injured in the raking up of the manure before the day of sale from Biggs to the plaintiff, the plaintiff could not maintain his action. This instruction the court refused to give. The defendant's counsel also prayed the court to instruct the jury that if the plaintiff had a right of action, it was trespass quare clausum fregit and not case, which instruction the court also refused to give.
A verdict was found for the plaintiff, and after a motion for a new trial, which was refused, and judgment rendered according to the verdict, the defendant appealed.
This is an action of trover which the plaintiff has brought to recover damages of the defendant for severing from his free hold a parcel of fence rails, earth and soil and manure, and removing and converting the same to the defendant's use. The plaintiff purchased the land on 18 February, 1841. The defendant had been tenant of the former owners, and before the date of the plaintiff's purchase he had raked in piles the manure which he had made on the land, and in raking up the manure a portion of the soil was raked up with it. After the purchase of the land by the plaintiff, the defendant remained on the (329) same, and removed the rails and the said piles of manure, and then gave up the premises to the plaintiff. On 25 February, 1841, the defendant proved an agreement made by his lessor with him, that he might carry away everything which he might bring on the premises. The lot of land had no fence on it when the defendant leased it; he caused the rails to be brought there and the fence to be made; and he removed the said rails before he left the premises. The judge charged the jury that the defendant had a right to remove the fence rails, by force of the contract with his lessor, the former owner of the land; that the defendant had a right to remove the piles of manure which had been made by his own industry and out of materials which he had furnished. But if the defendant had carried away any part of the soil, then the plaintiff would be entitled to recover. There was a verdict and judgment for the plaintiff, and the defendant appealed.
The outgoing tenant, where there is no covenant or custom to the contrary, has a right to all the manure made by him on the farm. It is his personal estate. Roberts v. Baker, 1 Compton and Meeson, 309; Beatty v. Gibbons, 10 East, 116; Watson on Sheriffs, 181. We are aware that the rule is otherwise settled in some of the States, as in New Hampshire, Massachusetts, and New York. But we apprehend it is so settled upon the ground of the usage and general understanding of the country. No usage or general understanding on the subject his ever been brought under our notice as prevailing in this State, and, therefore, we feel it incumbent upon us to determine the question on common-law principles. The manure, however, ceases to be his if he leave it when he quits the farm. Whatever things the tenant has a right to remove ought to be removed within the term; for, if the tenant leave the premises without removing them, they then becomes the property of the reversioner. But where the tenant holds over, even so as to become a trespasser, he will not be considered as having abandoned the things he had a right to remove. Comyn on Landlord and Tenant, 191, 192; Gibbons on Fixtures, 63, 64. The judge instructed the jury that if the defendant (330) had carried away a part of the soil, then the plaintiff would be entitled to recover. It was held in Higgon v. Mortimers, 25 Eng. C. L., 553, that if a tenant, during his tenancy, remove a dung heap, and at the time of so doing dig into and remove virgin soil that lies beneath the dung heap, the landlord might maintain either trespass de bonis asportatis or trover for the removal of the virgin soil. In that case the tenant had taken and carried away a spade's depth of the virgin soil that lay beneath his bed of manure. In the case now before us it appears that in raking up the manure into heaps (and which was done before the plaintiff purchased the land) a portion of the soil was racked up with the manure. A small portion of the soil must of necessity be gathered with the manure in all attempts to heap it, and then it becomes mixed in and composes a part of the manure or compost, which belongs to the tenant. It certainly was not virgin soil which the defendant carried away. We, therefore, think that the judge erred in charging the jury that the plaintiff was entitled to recover. Leigh N. P., 1466; Comyn's Dig., Biens, H. The opinion expressed by the judge on the other questions, as to the right of the defendant to remove the rails which he had put on the demised premises, is not brought before us by this appeal, and, therefore, as to that question we express no opinion.
PER CURIAM. New trial.
Cited: Sanders v. Ellington, 77 N.C. 257.
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