Gallagher v. Shipley

Cochran, J.,

delivered the opinion of this Court.

The professed object of the appellee in filing this bill was to stay irreparable injury and waste, which he alleges was being committed by removing manure from land of which he was the lessor ; but we have been satisfied, by an examination of the record, that his real purpose was to secure the manure as an accretion or appurtenance to the soil of the leased premises. It is immaterial, however, on which theory the bill goes, for both present the question as to the right of property in the manure ; and as the case must ultimately turn upon the decision of that question, we think it should be dealt with at once, without regard to any of the subordinate points considered in course of the argument.

It is settled by the general current of American as well as English authorities, that a tenant, under a farming lease or contract, has no right to remove from the premises so occupied, without an express stipulation to that effect, any manure made in whole or in part from the produce of the land. 5 Ves., 147, 260, 261. 16 Ves., 173. 13 Gray, 55 . 6 Greenlf., 222. 2 Hill, 142 . 15 Wend., 169 . 19 Ver., 379. 10 Fost, 558. In such a case, the manure is not regarded as a product of the land to which the tenant is exclusively entitled, but as ordure or compost resulting from the consumption or decay of those products, required by the land to repair the waste to which it has been subjected in producing the crops consumed ; and it is for that reason that the law holds the manure in such a case to be an accretion to the land which the tenant cannot *428 remove. This rule, it is insisted, applies to the present case, and in examining this proposition it will be necessary to refer with some care to the facts shown by the admissible evidence contained in the record.

The lease, exhibited by the appellee with his bill, is general in its provisions and terms ; it says nothing of the mode in which the lessees were to use or occupy the demised premises ; and they were clothed, in our opinion, with full power and right to occupy and use the land described in the lease for any lawful purpose not injurious to the reversion. It is true that the lease contains stipulations as to the condition in which the property is to be surrendered at the expiration of the term, but these provisions have no relation to the intermediate occupation, and of course raises no presumption as to the use to which the land was to be applied. The averment in the bill, of an understanding between the appellee and lessees that the land was to be used for depasturing cattle, does not affect the appellants here, nor can such an averment limit in any degree, so far as they are concerned, the legal effect and operation of the terms of the lease. Whatever the case was as between the immediate parties to the lease, it is clear that no mere verbal understanding between them could affect the rights of persons holding under the lessees without notice of it, but the appellee does not allege, nor does he contend, that .these appellants entered upon the demised premises with notice of any such understanding. We think, by the true construction of the lease, that the appellants were not bound to use the demised premises for the purposes of husbandry alone, but that they were at liberty to occupy the same for any lawful purpose whatever.

The appellee alleges that the appellants had for some months before filing the bill, and at that time were occupying and using the land in question as a corral or pen for *429 herding large numbers of cattle brought thither to be slaughtered for the use of the armies of the United States. This fact is admitted by the answer, and it abundantly appears from the proof, that the cattle there herded were fed with provender supplied altogether from sources foreign to the land ; and that for the beneficial or economical use of it in that way, it was necessary from time to time to remove the manure deposited on the surface. It would seem impossible on this state of case to apply the rule insisted on by the appellee. The land furnished nothing for the support of the cattle, nor was it exhausted by cultivation or by the use to which it was applied ; on the contrary the evidence shows conclusively, that it was constantly improving by accretions to the soil that could not be removed with the manure. The appellants were not occupying the land under a farming lease, and in using it for the purpose disclosed by the evidence, neither were injuring, nor could injure the interest or' estate of the lessor. The rule governing the case of a tenant under a farming lease is founded upon facts and considerations wholly different from those shown by the proof here ; and we think, as it cannot be applied to this case for that reason, that there is no substantial ground for disputing the appellant’s right of property in the manner claimed by them. The appellee, however, further insists that the manure became so commingled with the soil of the land, that it was impossible to remove it therefrom without removing the soil. This presumption seems in its nature to be speculative rather than positive, for even admitting, as probably was the fact, that much of the manure was trampled in and commingled with the soil, it by no means follows that such as was not trampled in could not be removed from the surface without removing the soil. The evidence shows beyond question, that only such manure as remained on the surface, and capable of re *430 moval without injury to the land, was removed. How the removal of such manure could injure or affect the estate of the lessor is a matter somewhat difficult to discover. We admit that, while the appellants had the right of property in such manure as was not commingled with the soil, and the consequent right of removal, they were hound to exercise their right of removal with such diligent care and skill'as would prevent injury to the land. We conclude, however, from a careful review of the testimony, that reasonable skill and care were exercised by the appellants in removing the manure claimed by them. The proof shows that the implement used for that purpose was constructed with especial reference to that end, and that it was nearly if not quite impossible, in using it, to inflict any injury whatever, in the way of removing the soil.

(Decided January 25th, 1866.)

We are of opinion, looking to the facts and circumstances admitted and established by the evidence, that the Court below erred in refusing to dissolve the injunction, and will therefore sign a decree reversing the order appealed from, with costs to the appellants, dissolving the injunction and remanding the cause.

Order reversed, injunction dissolved, and cause remanded.