32 A. 828 | N.H. | 1893
The plaintiff held the farm after the expiration of three years, as tenant from year to year, upon the terms *534
expressed in the lease. Russell v. Fabyan,
Whether a tenant, "where there is no positive agreement dispensing with the engagement to cultivate his farm in a husbandlike manner, is bound to spend the hay and other like produce upon it as the means of preserving and continuing its capacity" (Perry v. Carr and Hill v. DeRochemont, supra), in other words, whether the express or implied obligation to cultivate the farm in "a husbandlike manner" binds him as matter of law to convert into manure all the fodder grown on the premises, is a different and possibly an open question. Wing v. Gray,
The plaintiff did not lose his property in the manure by intermixing it with the defendant's manure of the same quality and value without his consent. It is not claimed that the plaintiff mixed the manure with any fraudulent or wrongful intent. "The intentional and innocent intermixture of property of substantially *535
the same quality and value does not change the ownership. And no one has a right to take the whole, but in so doing commits trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him." Ryder v. Hathaway, 21 Pick. 298, 306; Gilman v. Hill,
Whether the parties were tenants in common of the manure is a question that need not be determined. Gardner v. Dutch,
A tenant in common of personal as well as real property has a right to partition if partition is possible, and if not, to a regulation of its use equivalent to partition or to a sale. Co. Lit. 164 b, 165 a; Stoughton v. Leigh, 1 Taunt. 402, 411, 412; Morrill v. Morrill,
Judgment for the plaintiff.
WALLACE, J., did not sit: the others concurred. *537