Haslem V. Lockwood - Argument of The Defendant-respondent

Argument of The Defendant-respondent

Olmstead (Counsel for the defendant-respondent), contra.

(1) The manure mixed with the dirt and ordinary scrapings of the highway, being spread out over the surface of the highway, was a part of the real estate, and belonged to the owner of the fee, subject to the public easement.

(2) The scraping up of the manure and dirt into piles, if the same was a part of the real estate, did not change its nature to that of personal property, unless there was a severance of it from the realty by removal, (which there was not), whether the plaintiff had the consent of the owner of the fee or not, which consent it is conceded the plaintiff did not have. (3) Unless the scraping up of the heaps made their substance personal property, the plaintiff could not maintain his action either for trespass or trespass on the case.

(4) In trespass de bonis asportatis, or trover, the plaintiff must have had the actual possession, or a right to the immediate possession, in order to recover.

(5) If the manure was always personal estate, it being spread upon the surface of the earth, it was in possession of the owner of the fee, who was not the plaintiff. The scraping of it into heaps, unless it was removed, would not change the possession from the owner of the fee to the plaintiff. The plaintiff therefore never had the possession.

(6) If the heaps were personal property the plaintiff never had any right in the property, but only mere possession, if anything, which he abandoned by leaving the same upon the public highway from 8 o’clock in the evening until 12 o’clock the next day, without leaving any notice on or about the property, or any one to exercise control over the same in his behalf.