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