#### Jesse Elting, Resp’t, *v.*Calvin Palen, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Landlord and tenant—Manure belongs to the land on which it IS MADE.

The defendant was tenant of a farm and Ms lease expired April 1, 1887. A partition sale of the premises took place in October, 1886, the premises being sold in parcels to several persons, among them one Varick. The sale was subject to the tenant’s possession until April 1,1887. The plaintiff bought a tract on which were the dwelling house and barn. In the latter at the time were two loads of manure; by February 17, 1887, there were-one hundred and thirty. At the request of Varick, the defendant then began carrying away the manure and depositing it on her land. *Held,*that the manure belonged to the land and hence to the plaintiff as owner of the fee of that portion of the farm.

2. Same.

Although the tract of the plaintiff was a small part of the whole farm the defendant had no title to the manure, and a partition of the property having been made there was no injustice in holding that the manure belonged to that separate portion of it upon wMch the manure had been accumulated.

Appeal from judgment in favor of plaintiff, granting a perpetual injunction restraining the defendant from interfering with certain manure.

*A. T. Clearwater,*for app’lt; *Bernard & Fiero (J. Newton Fiero,*of counsel), for resp’t.

Learned, P. J.

The defendant as tenant a farm some 800 acres, and his lease expired April 1, 1887. A partition sale of the premises was had October 14, 1886, at which the plaintiff bought forty-five acres which contained the barn and dwelling house. Other persons bought other parcels; among them Mrs. Varick bought about forty-seven acres. The terms of sale as to all the land stated that it was sold *“*subject to the rights of Galvin Palen as tenant, and the possession of said premises will be reserved until April 1, 1887, and also the winter grain sown thereon will be reserved and the right of the tenant of coming upon said premises after April 1, 1887, and gathering the same.” On the farm, not on the part bought by the plaintiff, was also another barn used for storing hay. At the *94time of the purchase by plaintiff there were two or , three loads of manure in the yard of the barn bought by him. On the 17th of February following the time of the commencement of this action there were 130. Just prior to the commencement of this action the defendant began carting away this manure from the plaintiff’s barnyard, and depositing it on that part of the farm purchased by Mrs. Varick. This he did at her request. He had carted away about thirteen loads. Thereupon the plaintiff commenced this action, and obtained an injunction *pendente*lite, forbidding the defendant from carting away any more manure. On the trial this injunction was made final. And from the judgment the defendant appeals.

It does not distinctly appear whose tenant the defendant had been; probably the tenant of the deceased owner. Nor does it distinctly appear whether the heirs reserved to themselves the rent to become due from defendant up to April 1. This may be possible, although contrary to the general rule. Washburn Real Property, 337; *Van Rensselaer*v. Gallup, 5 Den., 454, 461. The terms of sale reserve only the possession. It would seem then that the title passed to the several purchasers at the time they received their deeds; but that, owing to the defendant’s existing lease, they could not take actual possession. The terms of the sale seem to have been intended simply to protect the rights of defendant as tenant, and to prevent any claim by the several purchasers that the contract of sale was broken by their inability to turn the defendant out of possession. The several purchasers, therefore, becoming owners of their several parcels, must have acquired severally the rights towards the defendant which a land owner would have in respect to a tenant in such circumstances. And these several purchasers were not cotenants or joint tenants. They held their respective purchases in severalty.

If the defendant’s lease had continued for another year, then it is very probable that, in the ordinary course of good husbandry, he could have spread this manure upon any proper part of the farm. Because the annual spreading of the manure is the ordinary mode. He would have been entitled to have, by this mode of use, the benefit of the accumulated manure. But his lease was to expire April 1. His carting this manure to a part of the farm bought, not by the plaintiff, but by some other person, was the same as if he had carted it to some land which had never been part of the farm. The previous owners of the farm had, by the partition sale, divided it; and each purchaser held his purchase separately.

In *Middlebrook v.*Corwin, 15 Wend., 169, the landlord sued the tenant for manure taken away from the farm shortly before the expiration of the term, and it was held that he could recover. The court said the manure belonged to the farm, and the tenant had no more right to remove it than he had to remove a fixture. Such is the rule in 2 Kent’s Comm., 347.

In *Goodrich*v. Jones, 2 Hill, 142, the court held that manure made a part of the freehold, though laid up in heaps in the barnyard. This was said to be the doctrine between landlord and tenant, and to be stronger as between vendor and vendee.

*95The same is held in *Daniels*v. Pond, 21 Pick., 367, and *Kittredge*v. Woods, 3 New Hamp., 503, which last case is approved in *Goodrich*v. *Jones, supra.*See also *Lassell*v. *Reed,*6 Greenl., 222.

It is worth noting also that this is a rule not of our law only. By the Roman law manure went to the purchaser of the farm, whether the manure was in a heap or in a stable. *Fundo vendito vel legato sterculinvm et stramenla emptoris et legatoris sunt. * * * Nee interest in stabulojaceat an acervus sit.*Dig. XIX., 117, 2. See also Dig. XLIII, 24, 7, 6.

It is urged by the defendant that this manure was not in existence when the plaintiff purchased, but was made subsequently. Then, as we have above seen, the defendant was after the purchase in the position of tenant to the plaintiff. And the rule is equally applicable in that relation.

In regard to the case cited by defendant of *Ruckman*v. *Outwater,*28 N. J., 581, holding that manure in a barnyard does not pass to the grantee, we can only say that it is contrary to the decisions of our state above cited, and however well considered we cannot follow it.

The defendant urges the rights of co-tenants or joint tenants as to personal property. But we think that those rights are not here involved. Of course there is a certain difficulty in treating such an article as manure in a farm barnyard as real estate, but the difficulty is no greater than in the case of hop-poles. *Bishop*v. Bishop, 11 N. Y., 123. And the rights of all parties seem to be best settled when the manure is said to belong to the farm and not to the tenant

Nor do we think that any difficulty arises from the fact that the tenant’s lease extended over the whole 300 acres. He had no right to the manure as owner, though he might, as above stated, have restored it to the land. And when the owners of the land divided it by their sale, we see no injustice in saying that the manure belonged to that separate portion of the farm on which it was accumulated. For, as above pointed out, it could not, in good husbandry, during what remained of the defendant’s term, have been applied for his benefit over the farm generally.

Judgment affirmed, with costs.

Landon, J., concurs; Mayham, J., not acting.