#### SIMON M. SMITHWICK vs. WILLIAM *J.*ELLISON.

*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.

Taking up with the manure the slight portion of the, earth, which is necessarily mixed with it in raking it into heaps, will not make the tenant a *iort-feasoi\*

An appeal from ihe Super!ox Court of Marlin county, at tbe Fall Term, 1841, his Honor Judge Dick presiding.

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 raked 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 the 18th February, 1841, conveying the lot in question, and also a deed in trust from Thomas R. Coffield to the said Asa Biggs, dated the 26th day of February, 1840, by which the said Biggs was authorized to sell and convey *327the said lot. It was admitted that the defendant had rented the lot from Thomas R. Ooffield for the year 1840, and that" the defendant continued to hold and possess the same, until abont the 25th of February, 1841, when he surrendered the possession and the plaintiff took it. The plaintiff then proved a sale of the lot by the Trustee, Asa Biggs, on the 18th of 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, while 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 the 18th of February, the day of sale; and that after the 18th of February, and before the removal of the said articles, the plaintiff 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. I 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. Cof-field, from whom he had rented the lot, an agreement for the lease of the said lot for the year 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 wood-pile 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 *328carried away was manure, which had been made by his own industry, or out of materials which he 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 clavsum 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.

*B. F. Moore for the*plaintiff.

*J. IL Bryan*and *J. Allen*for the defendant.

Daniel, J.

This is an action of Trover, which the plaintiff has brought to recover damages of the defendant, for severing from his freehold 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 the 18th of February, 1841. The defendant had been tenant ot the former owners, and before the date of the plaintiff’s purchase, he had raked in piles the manure which he bad made on the land, and in raking up the manure a portion of the *soil*was raked up with it. After the purchase of *329the land by the plaintiff, the defendant remained on the *the same,*and removed the rails and the said piles of manure, and then gave up the premises to the plaintiff. On the 25th *of*February, 1841, the defendant proved an agreement made by his lessor with him, that he might carry away every thing 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 *Barker,*1 Compton & Meesony 808*, Beatty v Gibbons,*16 East 116, Watson oh sheriffs; 18*1.*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 has 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, howeveff 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 tire premises without removing then), they then become 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. Oomyn on Landlord and Tenant, 191, 192. Gibbons on Fixtures, 63, 64. The judge instructed the jury, that if the *330defendant had carried away a part of *the soil,*then the plaÍH-tiif would be entitled to recover. It was held in *Higgon v Mortimers,*25th Eng. C. L. Rep. *£$3,*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 s-oil was raked 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 ju^ge erred in-charging the jury that the plaintiff was entitled to recover. Leigh’s N. P. 1466. Comyn’s Dig. *Biens,*H. The opinion expressed by the ^Wj-udge on the other question, as to the right of the defendant to remove the rails which he had puteen the demised premises, is not brought betore us by this appeal, and, therefore, as to that question we express no opinion.

Per CxiRiam, New trial awarded.