Taylor v. Newcomb

• Decision Date: 24 April 1900
• Court: Michigan Supreme Court
• Parties: TAYLOR v. NEWCOMB et al.

82 N.W. 519

123 Mich. 637

TAYLOR v. NEWCOMB et al.

Supreme Court of Michigan

April 24, 1900

Appeal from circuit court, Montcalm county, in chancery; Frank D. M Davis, Judge.

Suit by Henrietta W. Taylor against Solomon B. Newcomb and others to enjoin the removal of manure from leased premises. From a decree in favor of defendants, plaintiff appeals. Affirmed.

William O. Webster, for appellant.

Frank A. Miller, for appellees.

MONTGOMERY C.J.

On the 13th of November, 1894, the defendant Newcomb conveyed to complainant a farm consisting of 80 acres in the township of Pierson, Montcalm county. On the same day a lease in the following words was given back to Newcomb: 'It is hereby contracted and agreed by and between Fred F. Taylor, of the first part, and Solomon B. Newcomb, of the second part, that in consideration of one dollar and other valuable consideration, the receipt whereof is hereby confessed and acknowledged, that the said first party leases to the second party the use of the buildings, well, windmill, yard, and barnyard on the north 1/2 of northeast 1/4, section 28, town 11 north, range 10 west, of Michigan, from the date hereof to the first day of April, A. D. 1895, and all the pasture on said land until the winter of 1894-5 sets in.' On the date of this transaction defendant Newcomb had stored in the barn a quantity of hay, cornstalks, and straw. During the winter following he made a quantity of manure by feeding such fodder to his stock, the manure remaining and being housed in the barn and on the premises. In June, 1895, defendant Newcomb sold this manure to defendant Banfield, and the present bill is filed to enjoin its removal from the premises. From a decree dismissing the bill, complainant appeals.

The great weight of authority in this country sustains the rule that, as between landlord and tenant, manure made on the farm by the cattle of the lessee, which is made from the products of the farm, and as a result of the consumption of its produce thereon, becomes a part of the realty. Tyler, Fixt 356; 1 Washb. Real Prop. 13; Kittredge v. Woods, 3 N H. 593; Lassell v. Reed, 6 Greenl. 222; Middlebrook v. Corwin, 15 Wend. 169; Daniels v. Pond, 21 Pick. 371. The rule as stated in Tyler on Fixtures is as follows: 'The rule of law may therefore, be safely declared that manure made upon a farm or gathered in therefrom, and produced mainly from the pasturing of sheep, cattle, and horses on its succulent vegetables and grasses, or other products of the farm, in the absence of any stipulation or custom to the contrary, belongs to the farm, and cannot be legally removed therefrom by the tenant. But if the manure were not produced directly or indirectly from the land, and were in no sense the product of agricultural demised premises,--such as accumulates in livery stables and the like,--it is no part of the realty, and may be removed by the tenant at the close of his term.' Defendant's counsel does not controvert this...