The opinion of the court was delivered by
Kellogg, J.The principle may be regarded as well settled in this state, that the manure of animals, spread about the barn yard, or laying in piles at the stable windows, is so attached to the land, that it passes, by a deed of the real estate, to the grantee. It was so held by this court in the case of Stone v. Proctor, 2 D. Ch. 108; and this would seem to be decisive of the present case, unless the situation of the manure, at the time of the conveyance of the freehold to the plaintiff, was such as to materially vary it from the case of Stone v. Proctor. Now we cannot perceive any substantial differ*381ence, as it respects the rights of the owner of the freehold to the manure, whether the same is in the yard, or at the stable windows, or in the stable, where the same has been suffered to accumulate. The same would, in either case, pass by a deed of the freehold, as appurtenant to it. '
But it is urged, that the manure in question was made from hay which belonged to the defendant, and that therefore he had the right to remove it. This, we apprehend, does not, under the circumstances of the case, give the defendant the right he claims of removing the manure. It appears, that the defendant occupied the farm the year preceding the removal of the manure, as a tenant; and,.as we understand from the bill of exceptions, the manure was made from the crops raised upon the farm; which the rules of good husbandry required should be used and expended upon and about the farm. Under such circumstances, in the absence of any agreement authorizing it, he would not have a right to remove the manure from the farm.
The court below seem to have attached importance to the fact of the defendant’s intention, by keeping the manure in the stables, to remove it, and to have so instructed the jury. This, we think; unqualified and unexplained, was clearly erroneous. Even upon the supposition, that, as between the defendant and the grantor of the plaintiff, the defendant had the right to remove the manure, yet in the absence of any notice, either actual, or constructive, to the plain,-tiff, of this right, the defendants intention to remove it could not affect the plaintiff’s right to the manure, unless that intention was ,manifested by some act, sufficient to put the plaintiff upon inquiry, it the time of his purchase.
"Upon the whole, we are of opinion that the instructions to the jury were wrong ; and consequently the judgment of the county court must be reversed.