Williams v. Gardner

• Decision Date: 05 May 1930
• Docket Number: 28558
• Citation: 128 So. 111,157 Miss. 252
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. GARDNER

128 So. 111

157 Miss. 252

WILLIAMS v. GARDNER

No. 28558

Supreme Court of Mississippi

May 5, 1930

Division B

1. APPEAL AND ERROR.

In determining propriety of refusal to direct verdict, every material fact favorable to appellee shown by evidence must be taken as established.

2. LANDLORD AND TENANT.

Generally manure made by tenant's stock on leased lands in ordinary course of husbandry, without agreement or custom to contrary becomes property of lessor.

3. LANDLORD AND TENANT.

Manure made by tenant's stock is not regarded as product of land, but as accretion to land to landlord.

4. LANDLORD AND TENANT. Owner of land was entitled to manure accumulated from droppings from stock owned and fed by lessee.

Owner was entitled to manure, regardless of fact that manure was accumulated from droppings from lessee's stock which was fed from feedstuff furnished by lessee and grown elsewhere than on leased premises, which manure was kept separate from that which was dropped by lessor's stock used in cultivating lands.

HON. W J. PACK, Judge.

APPEAL from circuit court of Jones county, Second district HON. W. J. PACK, Judge.

Action by R. F. Williams against Sam Gardner. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

H. L. Finch, of Laurel, for appellant.

General customs of the country and the general customs of merchants are judicially noticed by the courts.

17 C. J., p. 519, sec. 84; 17 C. J., pp. 485-486, sec. 49; Dowling v. Smiley, 116 So. 394.

The general rule is that manure made by a tenant upon leased farm lands in the ordinary course of husbandry is, in the absence of special agreement to the contrary, the property of the lessor and belongs to the farm as an incident necessary to its improvement and cultivation, and the tenant has no right to remove from the premises or apply it to any other use, and this rule has been applied, although the manure was made by tenant's cattle from the tenant's own fodder.

38 C. J., page 100, sec. 738.

Collins & Collins, of Laurel, for appellee.

Before the court will take judicial notice of a custom it must be so general as to attract notice throughout its jurisdiction.

Dowling v. Smyley, 116 So. 294.

If manure is not made in the ordinary course of husbandry it does not inure to the landlord.

Pickering v. Moore, 68 A. S. R. 695; Needham v. Allison, 24 N.H. 355.

The outgoing tenant, where there is no covenant or custom to the contrary, has a right to all the manure made by him on the farm.

Smithwick v. Ellison, 38 Am. Dec. 697; Roberts v. Barker, 1 Compt. & M. 309; Beaty v. Gibbons, 10 East 116; Watson on Sher. 181; Leigh's N. P. 1466; Com. Dig., Biens H.

OPINION

Anderson, J.

Appellant brought this action in the court of a justice of the peace of Jones county, to recover of appellee the value of certain stable and barnyard manure which appellant charged was wrongfully removed from his lands by appellee. There was a judgment in favor of appellant, from which judgment appellee appealed to the county court of the Second judicial district of that county, where there was a trial and judgment in favor of appellee; and from that judgment appellant appealed to the circuit court, where the judgment of the county court was affirmed. From the judgment of the circuit court appellant prosecutes this appeal.

During the year 1928, appellee, Sam Gardner, was a tenant of Dr. Barkley, on the latter's farm land. As provided in the lease contract, Dr. Barkley furnished the land, work stock, feed for the stock, tools and farm implements to work with, and a portion of the fertilizer to produce the crop; and the agricultural products grown on the leased premises were divided share and share alike between the lessor and the lessee.

On the 2nd of November, 1928, Dr. Barkley sold and conveyed the leased lands, including all the stock thereon, consisting of mules, cattle, and hogs, the farm implements, and his share of the agricultural products for the year, to appellant, who thereupon took possession of the property, and became the landlord of the appellee, Gardner, and this relation continued until the expiration of the lease on December 31, 1928.

At the time appellant purchased the property there was on the barnyard and in the stables a lot of manure. Before the expiration of the lease, and after...