French v. Freeman , 43 Vt. 93 ( 1870 )

The opinion of the court was delivered by

Wheeler, J.

Manure is not necessarily real estate; it may be real or personal according to the circumstances under which it is placed. When lying upon the soil, where it was first dropped, without severance, it is a part of the soil, like a clod of earth, loose stones, or fallen and decaying vegetation, and is real estate. When severed from the soil, gailered up, and secured for use elsewhere, it is merely a personal chattel. This action is -trover for so many loads of manure : to entitle the plaintiff to recover, it was incumbent on him to show that he had a general or special property in the manure, with the right to its possession, at the time of its conversion by the defendant. To show property in the manure it was not necessary for him to show that he had had property in some real estate of which the manure had been a part while he owned it, but he might make title to the manure in the same way that he might to ahorse, a jewel, or any personal chattel. It was no more necessary for the plaintiff in this action to show title all the way back to real estate, to which the manure was once appurtenant, or of which it once formed a part, than it would have been in an action to recover for the conversion of so many bushels of fruit, or loads of wood, to show title to the land on which the fruit grew, or from which the wood was cut. In the progress of the trial, title to land on which the manure had once been was shown .by the plaintiffs, but the validity of that title was not concerned in the trial. The question was not whether the plaintiffs had title to that land, but whether the manure at the time it was taken by the defendant was a part of the land to which the plaintiffs’ title was unquestioned. Under these circumstances, the title to land was not concerned so but that the justice before whom the action was commenced had jurisdiction of it and the county court appellate jurisdiction. The motion to dismiss was therefore properly overruled. The manure in question had never gone back to the soil of the farm and become a part of the land itself. It was the accumulation of several years, and at the time the defendant purchased it of Webb, it was where it had accumulated, at the barn, in the barn-yard, and about the buildings. At that time, whether it was an appurtenant to the farm, and would have passed by a deed of the farm from Webb, who owned both farm and manure, to a purchaser, or was merely personal property, Webb could sell it; and when severed and delivered, if it was of the realty, or when delivered if it was merely personalty, upon his sale, the property in it would pass to the purchaser. Webb did, then, while he owned both farm and manure, sell the manure to the defendant at the price of sixty dollars, and in pursuance of an agreement with the defendant removed it from the barn-yard and about the buildings where it then was and placed it in a large heap upon the farm near by, ready to be removed by the defendant the ensuing winter, and when that was done the defendant paid him fifty dollars'of the price of it. This was a sufficient delivery if it was personalty, and a sufficient severance and delivery if it was realty, on the part of Webb, and sufficient acceptance on the part of tho defendant, to vest the ownership of the manure in the defendant. Tansley v. Turner, 2 Bing. N. C., 151, 29 E. C. L., 479; Yale v. Seely, et al., 15 Vt., 221. The land where the manure lay became, to quote from the language of Ch. J. Tindal in Tansley v. Turner, the warehouse of the defendant. The sale and conveyance of the farm from Webb to the plaintiffs carried with the farm all things that were legally appurtenant to it at that time, but did not carry with it anything of the nature of an appui’tenance merely, that Webb did not then own and could not lawfully grant,'and which, therefore, was not legally an appurtenant to the farm. Nicholas v. Chamberlain, Cro. Jac., 121; Swasey v. Brooks, 34 Vt., 451. Webb did not then own this manure, and could not lawfully grant it, therefore it was not then, if it had ever been, lawfully an appurtenant to the farm, and it did not pass from Webb to the plaintiffs by force of the conveyance of the farm from him to them.

Upon these facts, the manure was not the property of the plaintiffs, therefore the defendant did not convert their mairare to his use when he converted this.

Judgment reversed, and cause remanded.