From: Doug.Hemken@launchpad.unc.edu (Doug Hemken)
Subject: Manure & the law
Keywords: Landlords & tenants, property rights, fertilizer, manure
Organization: University of North Carolina Extended Bulletin Board Service
Date: Tue, 26 Jan 1993 19:23:16 GMT


Imagine a lawsuit in your suburban/rural community over who owns a pile of
manure:  it would probably be a struggle over who is responsible for the
"air pollution" on the edge of town or the water pollution in a nearby
creek.  Suppose it was a lawsuit between two farmers living in a priority
watershed, and the outcome of the suit would determine who paid for
cleaning up the manure so it didn't run off into the surface water.  One
farmer is a tenant, raising livestock solely on land she rents from the
other farmer (including pasture, crops, & housing).  Do you suppose that
the judge would rule that the manure was produced by the tenant's
livestock or by the landlord's land (e.g. soil becomes crops becomes
manure)?  In an age in which nutrient recycling is at best considered a
minor feature of our agriculture, wouldn't it be surprising to find a
judge ruling that manure is a product of the land and should be considered
the landowner's property (and that the landlord should clean up the manure
pile sliding into the creek)?  The question of who owns the manure in a
manure pile apparently has a long history.

Whose shit is this?
	I was recently rummaging through some old reports of judicial
proceedings, looking for a case involving fertilizer adulterated with sand
in North Carolina in the mid 1800s.  [Although the State Geologist
testified that the fertilizer was 50% sand, the judge ruled that the
farmer had to pay for it.]  I wasn't able to locate any mention of the case
I was looking for [if you know anything about it, please let me know -- my
legal history skills are poor!], but I did run across a series of
interesting landlord v. tenant disputes over tenant rights to manure,
spanning the period 1829 to 1876.
	In the middle years of the 1800s, high court judges fairly
consistently ruled that manure was the property of the farm owner, not the
tenant.  In Maine in 1829 and New York in 1836, judges ruled that a tenant
could not take the manure pile with him at the end of his tenancy.  In
Indiana in 1876 a judge further ruled that a tenant had a right to use the
manure on the rented farm, but could not remove it to other fields he
rented or owned.  In New Hampshire in 1862 a judge ruled that removal of
manure by a tenant constituted *permanent* damage to the land (emphasis
mine).  A judge in Maryland in 1866 ruled that the manure in question was
required to repair the land.  
	The consistent theme was that manure was a valuable product of the
land, and should be returned to the land -- in an age when the commercial
fertilizer industry was very new and prices of commercial fertilizers were
quite high.  (Leading chemists of the day, such as Justus von Liebig,
argued that most farmers were engaged in destroying the agricultural
wealth of nations because they didn't return any/enough nutrients to the
soil.) Consistent with this principle was the ruling in New Hampshire in
1852 that manure produced in non-agricultural buildings (e.g. city livery
stables) was the property of the tenant.
	A ruling in Maine in 1831 might at first seem at odds with the
'manure is of the land' principle.  There, a judge upheld the right of a
landlord to seize and sell a "tenant's" manure pile, in order to recover
money the tenant owed the landlord.  If the manure belonged to the land
and therefore to the landlord, it is not clear that the landlord is
"recovering" any of his losses.  This case does suggest that the landlord
has rights to 'damage' his land in ways that he tenant does not.  Perhaps
some of the confusion is because this was an especially early case, and
property rights in home-grown manure were not yet well thought out.
	What remains consistent throughout is that landlords have ultimate
rights to manure produced by & upon their land.  Tenant's manure rights
are limited to the right to spread manure produced by their livestock back
upon the rented land.  At least, such was the situation in the USA in the
1800s, in cases where the land was the source of the nutrients in the manure.

	Can anyone tell me about contemporary property rights in manure? 
Historical property rights in other countries?


-=> Doug Hemken
doug.hemken@ebb.oit.unc.edu
hemken@sscb.ssc.wisc.edu
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