Pinkham v. Gear

3 N.H. 484

• Court: Superior Court of New Hampshire
• Decided: September 15, 1826
• Status: Published

Opinion

Richardson, C. J.

There was no testimony in this case, that showed that either of the defendants had the least color of right in the manure which they took. It is absurd to suppose, that Gear had a right to the manure, because the hay, on which the cattle were kept, came from land, of which he had the possession in 1821, It does not appear, under what circumstances the plaintiff occupied the land, nor under what right the defendant Gear entered into the land. In the absence of all proof, it is to be presumed, that she lawfully occupied the land, and that lie entered by right. Bat the circumstance, that she occupied the land and the barn at the same time, affords no reasonable ground of presumption whatever, that he had any right to the manure in question.

We entertain no doubt, that manure lying upon the earth, but not incorporated with the soil, is personal property, and that trover lies, when it is wrongfully converted, 2 East 154.

The only remaining question in this case is, whether possession of a chattel is, as against a stranger to ihe title of it, evidence of property . in an action of trover ? On this question the authorities are clear. It is well settled, that the finder of a chattel may maintain trover for it against any person but the owner. 1 Chitt Pl. 168.—2 Saund. 47 a, note (1)—2 Taunt. 301, Sutton vs. Buck.—1 Strange 505, Armory vs. Delamirie.—11 John. 529, Schermerhorn vs. Van Volkenburg.

And we are of opinion, that possession is, in all cases, sufficient prima facie evidence of property to maintain trover.

Judgment on the verdict.