The first question presented, is, as to the admission of parol testimony to prove the agreement under which the defendants claimed a right to enter. They claim a license to enter upon the land, to take their own property, or that of one of them ; and although a title to real estate cannot be created by parol, yet a parol license will always prevent the party giving it from sustaining an action of trespass ; not that it gives a title, but because it shows there has been no trespass. But although this has not been denied, it is said, all the contract of the parties was merged in the deed ; and Camp having reserved no right or interest in the land, can now have none; and therefore, this evidence was not admissible. The deed purported to convey, and did in fact convey, all Camp's interest in the land ; and if the plaintiffs claimed any interest therein, however small, the deed would be conclusive evidence that there existed no such interest. But the defendants claim no right in opposition to this deed, or against the right of the plaintiffs under it; but admitting that right, they claim under it and by virtue of it. They claim, that they entered under the rightful owner, and not under any parol reservation of a part of the original right. It is not, then, easy to see, how this differs from the ordinary case of a parol license. The claim of the defendants, in this case, is merely this ; that these acts were done by the consent of the person, who claims he has been injured thereby ; and that he who consented cannot be considered as injured : Volenti von fit injuria.
It is said, that this agreement was made at the time the deed was given; and that all parol contracts connected with that transaction, are merged in the deed, The rule on that sub*529ject, is not more indexible than that parol evidence is not to controul or vary a deed or writing. But this is a case of that, kind which neither affects, nor is affected by, the deed.
Again ; it was claimed, that the court erred in not instructing the jury, that this license was no justification, on account of the time which had elapsed since it was given. No time being fixed by the parties, a reasonable time must be given. What constitutes a reasonable time, is partly a question of law, and partly a question of fact. The mere circumstance that more than twenty days had elapsed since all the other objects of the license were accomplished, would not conclusively prove, that a reasonable time had elapsed. It is not stated, whether any, and if any, what circumstances, were given in evidence to show, that this was not a reasonable time. Now, the party who claims, that the court omitted to instruct the jury on a point, of law, which can arise only upon all the facts in the case, must show to this court, that all these facts are presented here, that were before the court below. Here, nothing is stated, but the plaintiffs’ proof and their claim, without any allusion to the manner in which that claim was met. If no proof was offered to meet this, that fact should have been stated; and then this court would have been able to judge whether they were acting upon the same facts as the court below; and whether there was an omission in the charge, of which these parties can complain. The parties have been before the jury upon this question of a reasonable time ; and although it may have been proper for the court to have expressed to the jury an opinion upon this subject, yet that must be shown affirmatively to the court, before they will reverse the judgment. Upon these points, therefore, this court concur with the superior court.
Another question is, whether this manure was personal property, and, as such, remained the property of Camp; or whether it passed under his deed, as a part of the realty, or an appurtenance. That manure spread upon the land will pass with the land, has not been denied. And on the other hand, that heaps of manure, under certain circumstances, would not pass, by a conveyance of the land, did not seem to be claimed. The question intended here to be tried, was, whether this manure, situated as it was, at the time of this conveyance, was fairly comprehended in it and passed by it. What the exact situation of this manure was, does not appear. Each party *530was desirous to have the facts found in such a manner respecting it as to place the case on the most favourable ground to support their respective claims. The defendant claimed, that it lay in heaps in the farm-yard. The plaintiffs denied this; and further claimed, that it had been collected, for the purpose of manuring and enriching the very land conveyed, and not to be sold or removed from the land; and still further claimed, that by the general usage of the state, manure in the yard, before it is spread upon the land, whether in heaps or not, is conveyed with the land as an appurtenance. The question then, whether this manure was in heaps in the yard or not, was a matter upon which the parties were at issue. It was a fact affirmed on one side, and denied on the other. A usage also was set up, by the plaintiffs. They claimed, that even if these questions of fact were against them, they had a right to this property ; but the court, overlooking the matters of fact in dispute between the parties, told the jury, that this manure was personal property, and did not pass by the deed. The court has thus taken for granted the facts in dispute, and charged the jury as if they were all agreed ; or else it supposed, that the law was with the defendants, even if all the facts were as claimed by the plaintiffs. This, however, has not been claimed by the counsel for the defendants. It cannot be contended, that manure, spread upon the land, or scattered about a barn-yard, could be taken away, by the vendor of the land. And if the only claim of the defendants depended upon the fact that the manure was in heaps in the yard, that fact should have been submitted to the jury ; and this not having been done, the charge was erroneous. Whether if that fact had been found for the defendants, they would have right to take away the manure, is a question of some interest to the community ; and as the court is not full, and the judges present all concur in opinion that there must be a reversal upon the last point, we shall not examine that question, and adjudge, that there is error in the judgment of the superior court.
The other Judges concurred in this opinion, except Church, J., who was absent, and gave no opinion.Judgment reversed.