Smithwick v. Ellison

• Decision Date: 30 June 1842
• Citation: 2 Ired. 326,24 N.C. 326,38 Am.Dec. 697
• Court: North Carolina Supreme Court
• Parties: SIMON M. SMITHWICK v. WILLIAM J. ELLISON.

2 Ired. 326

24 N.C. 326

38 Am.Dec. 697

SIMON M. SMITHWICK

v.WILLIAM J. ELLISON.

Supreme Court of North Carolina.

June Term, 1842.

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 tort-feasor.

An appeal from the Superior Court of Martin county, at the 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 the said lot. It was admitted that the defendant had rented the lot from Thomas R. Coffield for the year 1840, and that the defendant continued to hold and possess the same, until about 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. 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. Coffield, 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 carried 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...