Pickering v. Moore

• Decision Date: 16 March 1894
• Citation: 67 N.H. 533,32 A. 828
• Parties: PICKERING v. MOORE.
• Court: New Hampshire Supreme Court

32 A. 828

67 N.H. 533

PICKERING

v. MOORE.

Supreme Court of New Hampshire. Merrimack.

March 16, 1894.

Action by Lucian Pickering against Lydia A. Moore. Judgment for plaintiff.

Facts found by the court: March 31, 1883, the defendant leased his farm for the term of three years to the plaintiff, who covenanted to carry on the place in a husband-like manner, and to consume and convert into manure, to be used or left upon the premises, all hay and fodder raised thereon. The plaintiff occupied the farm, and performed all his covenants contained in the lease, without any new or further contract, until May 30, 1892. During the last year of his occupancy he fed out upon the farm a large quantity of fodder not produced on the place. He put 25 cords of the manure made from this fodder, and manure of the same quality and value made from fodder raised on the place, together in a heap, where they were so intermixed that they could not be distinguished. The defendant prevented him from taking away the 25 cords.

Leach & Stevens, for plaintiff.

Albin & Martin, for defendant.

CARPENTER, J. The plaintiff held the farm after the expiration of three years as tenant from year to year, upon the terms expressed in the lease. Russell v. Fabyan, 34 N. H. 218, 223; Conway v. Starkweather, 1 Denio, 113. Manure made upon a farm by the consumption of its products in the ordinary course of husbandry is a part of the realty. It cannot be sold or carried away by a tenant without the landlord's consent. Sawyer v. Twiss, 26 N. H. 345, 349; Perry v. Carr, 44 N. H. 118, 120; Hill v. De Rochemont, 48 N. H. 87, 88. The doctrine "was established for the benefit of agriculture. It found its origin in the fact that it is essential to the successful cultivation of a farm that the manure produced from the droppings of cattle and swine fed upon the products of the farm, and composed with earth and vegetable matter taken from the land, should be used to supply the drain made upon the soil in the production of crops, which otherwise would become impoverished and barren, and in the fact that the manure so produced is generally regarded by farmers in this country as a part of the realty, and has been so treated by landlords and tenants from time immemorial." Haslem v. Lockwood, 37 Conn. 500, 505. Whether a tenant "where there is no positive agreement dispensing with the engagement to cultivate his farm in a husband-like manner, is bound to spend the hay and other like produce upon it as the means of preserving and continuing its capacity" (Perry v. Carr and Hill v. De Rochemont, supra),—in other words, whether the express or implied obligation to cultivate the farm in a husband-like manner binds him. as matter of law, to convert into manure all the fodder grown on the premises,—is a different, and possibly an open, question (Wing v. Gray, 36 Vt. 261, 266, 267; Lewis v. Lyman, 22 Pick. 437, 444, 445; Middlebrook v. Corwin, 15 Wend. 169, and cases cited; Brown v. Crump, 1 Marsh. C. P. 567; Legh v. Hewitt, 4 East, 154, 159; Moulton v. Robinson, 27 N. H. 550, 561; Cooley, Torts, 334, 343, 344). However that may be, no rule of good husbandry requires a tenant to buy hay or other fodder for consumption on the farm. If, in addition to the stock maintainable from its products, he keeps cattle for hire, and feeds them upon fodder procured by purchase, or raised by him on other lands, the landlord has no more legal or equitable interest in the manure so produced than he has in the fodder before it is consumed. It is not made in the ordinary course of husbandry. It is produced "in a manner substantially like making it in a livery stable." Hill v. De Rochemont, 48 N. H. 87, 90; Corey v. Bishop, 48 N. H. 146, 148. It is immaterial whether the additional stock is kept for hire, or is the tenant's property. Needham v. Allison, 24 N. H. 355.

The plaintiff did not lose his property in the manure by intermixing it with the defendant's manure, of the same quality and value, without his consent it is not claimed that the plaintiff mixed the manure with any fraudulent or wrongful intent. "The intentional and innocent intermixture of property of substantially the same quality and value does not change the ownership. And no one has a right to take the whole, but, in so doing, commits a trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him." Ryder v. Hathaway, 21 Pick. 298, 306; Gilman v. Hill, 36 N. H. 311, 323; Robinson v. Holt, 39 N. H. 557, 563; Moore v. Bowman, 47 N. H. 494, 501, 502; Railroad Co. v. Foster, 51 N. H. 490, 493. "Even if the commingling were malicious or fraudulent, a rule of law which would take from the wrongdoer the whole, when to restore to the other his proportion would do him full justice, would be a rule not in harmony with the general rules of civil remedy, not only because it would award to one party a redress beyond his loss, but because it would compel the other party to pay, not damages, but a penalty." Cooley, Torts, 53, 54.

Whether the parties were tenants in common of the manure is a question that need not be determined. Gardner v. Dutch, 9 Mass. 427, 430, 431; Ryder v. Hathaway, 21 Pick. 298, 305; Chapman v. Shepard, 39 Conn. 413, 425; Kimberly v. Patchin, 19 N. Y. 330, 341. Assuming that they were, the action may be maintained. A tenant in common has the same right to the use and enjoyment of the common property that he has to his sole property, except in so far as it is limited by the equal right of his cotenants. Where two have each an equal title to an indivisible chattel, "as of a horse, an oxe, or a cowe," neither, without actual and exclusive possession of the chattel, can enjoy his moiety. Simultaneous enjoyment by each of his equal right is impossible. Hence neither can lawfully take it from the possession of the other. The one excluded from possession has no legal remedy, except to take it "when he can see his time." Co. Litt. § 323; Southworth v. Smith, 27 Conn. 355, 359. A tenant in...