drew up the opinion of the" Court. Two questions arise in the present case, the first, as to the form, the second, as to the plaintiff’s right of action.
1. The tenant in this case, was tenant at will; and it seems a well settled rule, that if a tenant at will commits waste, it is a determination of the will and an act of trespass, and that quare clausum fregit will lie by the reversioner. Phillips v. Covert, 7 Johns. R. 1 ; Suffern v. Townsend, 9 Johns. R. 35.
It was further contended, that the plaintiff had not such a possession of the manure, as would enable him to maintain trespass de bonis asportatis.
The plaintiff, by the purchase, had become owner of the farm with all its incidents, subject only to the tenancy at will of Nason. If the manure became the plaintiff’s at all, it was as part of and incident to the realty. Nason had a qualified pos session of it for a special purpose only, that is, to be used upon the farm. The moment he sold it, the act was an abandonment of that special purpose, he parted with his only right to the possession or custody of it, it vested in the plaintiff as owner of the freehold, and the right of possession followed the right of property. Farrant v. Thompson, 5 Barn. & Ald. 826 ; Walcott v. Pomeroy, 2 Pick. 121 ; Ayer v. Bartlett, 9 Pick. 156. As the tenant’s sale conveyed no title to the defendant, the action of trespass well lies against him, if the property was the plaintiff’s.
2. The Court are of opinion, that manure made on a farm, occupied by a tenant at will or for years, in the ordinary course of husbandry, consisting of the collections from the stable and barn-yard, or of composts formed by an admixture of these with soil or other substances, is, by usage, practice and the general understanding, so attached to, and connected with the *372realty, that, in the absence of any express stipulation on the subject, an outgoing tenant has no right to remove the manure thus collected, or sell it to be removed, and that such removal is a tort, for which the landlord may have redress ; and such sale will vest no property in the vendee. Lassell v. Reed, 6 Greenl. 222 ; Kittredge v. Woods, 3 New Hampsh. R. 503 The authority of the first of these cases is supposed to be impaired by a subsequent one, decided by the same court, Staples v. Emery, 7 Greenl. 201. But the court do not profess to call in question the correctness of their former decision, but, on the contrary, affirm it and distinguish the latter case from it.
The rule here adopted will not be considered as applying to manure made in a livery stable, or in any manner not connected with agriculture or in a course of husbandry.
In the present case, the defendant had notice, both from Blake and from the plaintiff, of the claim and title of the plaintiff to the manure, before the sale ; he therefore stands in the same situation with Nason, neither better nor worse.
Judgment for the plaintiff