Haslem v. Lockwood

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 aré 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 inatter 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; Fay 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. But it is said that if the manure was personal property, it was in the possession of the owner of the fee, and the scraping it into heaps by the plaintiff did not change the posses sion, but it continued as before, and that therefore the plain [506] tiff cannot recover, for lie neither had the possession nor the right to the immediate possession. The manure originally belonged to the travelers whose animals dropped it, but it being worthless to them was immediately' abandoned; and whether it then became the property of the borough of Stamford which owned the fee of the land on which the manure lay, it is unnecessary to determine; for, if it did, the case finds that the removal of the filth would be an improvement to the borough, and no objection was made by any one to the use that the plaintiff attempted to make of it. Considering the character of such accumulations upon highways in cities and villages, and the light in which they are everywhere regarded in closely settled communities, we cannot believe that the borough in this instance would have had any objection to the act of the plaintiff in removing a nuisance that affected the public health and the appearance of the streets. At all events, we think the facts of the case show a sufficient right in the plaintiff to the immediate possession of the property as against a mere wrong doer. The defendant appears before the court in no enviable light. He does not pretend that he had a right to the manure, even when scattered upon the highway, superior to that-of the plaintiff; but after the plaintiff had changed its original condition and greatly enhanced its value by his labor, he seized and appropriated to his own use the fruits of the plaintiff’s outlay, and now seeks immunity from responsibility on the ground that the plaintiff was a wrong doer as well as himself. The conduct of the defendant is in keeping with his claim, and neither commends itself to the favorable consideration of the court. The plaintiff had the peaceable and quiet possession of the property; and we deem this sufficient until the borough of Stamford shall make complaint. It is further claimed that if the plaintiff had a right to the property by virtue of occupancy, he lost the right when he ceased to retain the actual possession of the manure after scraping it into heaps? We do not question the general doctrine, that where the right by occupancy exists, it exists no longer than the party507 retains the actual possession of the property, or till he appropriates it to his own use by removing it to some other place. If he leaves the property at the place where It was discovered, and does nothing whatsoever to enhance its value or change its nature, his right by occupancy is unquestionably gone. But the question is, if a party finds property comparatively worthless, as the plaintiff found the property in question, owing to its scattered condition upon the highway, and greatly increases its value by his labor and expense, does he lose his right if he leaves it a reasonable time to procure the means to take it away, when such means are necessary for its removal ? Suppose a teamster with a load of grain, while traveling the highway, discovers a rent in one of his bags, and finds that his grain is scattered upon the road for the distance of a mile. He considers the labor of collecting his corn of more value than the property itself, and he therefore abandons it, and pursues his way. A afterwards finds the grain in this condition and gathers it kernel by kernel into heaps by the side of the road, and leaves it a reasonable time to procure the means necessary for its removal. While he is gone for his bag, B discovers the grain thus conveniently collected in heaps and appropriates it to his own use. Has A any remedy ? If he has not, the law in this instance is open to just reproach. We think under such circumstances A would have a reasonable time to remove the property, and during such reasonable time his right to it would be protected. If this is so, then the principle applies to the case under consideration. A reasonable time for the removal of this manure had not elapsed when the defendant seized and converted it to his own use. The statute regulating the rights of parties in the gathering of sea-weed, gives the party who heaps it upon a public beach twenty-four hours in which to remove it, and that length of time for the removal of the property we think would not be unreasonable in most cases like the present one. We therefore advise the Court of Common Pleas to grant a new trial. In this opinion the other judges concurred.