
    SUSANNA PINKHAM vs. JAMES GEAR et a.
    
    'Manure lying upon the earth, but not incorporated with the soil, is personal property ;aruHmver lies, when it is wrongfully converted Possession of a chattel is sufficient prima facie evidence of title, to enable a plain» tiff to maintain trover.
    Trover for six loads of manure. The cause was tried here, upon the general issue, at September term, 1825 ; when it appeared in evidence, that the manure, mentioned in the declaration, was taken by the defendants in May, 1821, in and about a barn in Lee, and carried away. The barn had been in the possession of Richard Pinkham, the plaintiff’s late husband, from 1817 to 1819, when he died. After the death of her husband, the plaintiff continued in possession of the ham until August, 1821. During all this time the barn belonged to Valentine Smith, but stood on land owned by one Moses Lumas. The barn was occupied by the plaintiff, after the death of her husband, without any permission from Smith; and it did not appear, that Lumas made any claim to the manure. The plaintiff occupied, from 1819 to 1821, part of a farm, to which the barn had formerly belonged ; and the hay used by her in the barn, during that time, grew upon that farm ; and the same farm came into the possession of Gear previously to May, 1821. The manure taken by the defendants was used upon the same farm by them. There was evidence in the case, which had a tendency to prove, that part of the manure, taken by the defendants, was made before the death of the plaintiff’s husband.
    The court instructed the jury, that manure lying upon the cround, hut r.ot mixed or incorporated with the soil, was personal property, for which an action of trover might be supported ; and that in trover, as well as in trespass, possession of a chattel was evidence of property ; arid that if they were satisfied, from the evidence of the plaintiff's possession, and the other evidence in the case, that the manure taken by the defendants belonged to the plaintiff, she was entitled to a verdict, although part of the manure might have been made while her husband was living.
    
      The jury having returned a verdict for the plaintiff, the defendant moved the court to grant a new trial, on the ground dial the jury had been misdirected.
    
      J. Bartlett, for the plaintiff.
    
      R. Ela, for the defendants.
   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.  