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grain-elevator was built upon the right of way of a railroad, under a license given by the company, with the understanding that it was not to be a permanent structure, and it was operated by shafting from a steam-mill. Held, personal property: Walton v. Wray, 54 Iowa, 531. A owned a frame building sixteen by twenty feet, and one story high, used for county offices. A moved this building to the new county seat, upon B's land, upon an understanding that B should obtain a patent for the land and should convey it to the county, the building to become also the property of the county. B obtained his patent, but refused to convey the land. Held, that the building remained personalty and could be removed: Rush Co. Commissioners v. Stubbs, 25 Kan. 322.

§ 1345. Ice.-Ice belongs to the owner of the land under the water on which it is formed. And he has the sole right to take ice formed upon the stream opposite his land. Neither is it a defense to a person taking such ice for the purpose of selling it that it is an obstruction to navigation. The riparian owner may dam the stream in order to make a pond for ice, and he may drain such pond and hold back the water until he shall have cleaned out the pond in order that the ice may be pure; those below cannot complain of such use. But a riparian owner has no ownership of the ice on a navigable stream. It belongs to the first person appropriating it."

1 State v. Pottmeyer, 33 Ind. 402; 5 Am. Rep. 224; Mill River Co. v. Smith, 34 Conn. 462; Paine v. Woods, 108 Mass. 173; Higgins v. Kusterer, 41 Mich. 318; 32 Am. Rep. 160; Myer v. Whitaker, 3 Abb. N. C. 172. In State v. Pottmeyer, 33 Ind. 402, 5 Am. Rep. 224, it was held that ice formed in a stream was a valuable article within those words in a criminal statute.

2 Washington Ice Co. v. Shortall, 101 Ill. 46; 38 Am. Rep. 255.

3 De Baun v. Bean, 29 Hun, 236. Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, the court saying: "Where there is no ownership of the subjacent soil, a riparian proprietor has no title to the ice. The title to the soil being in the state, and the stream being a

public highway, obviously the ownership of the ice would vest in the general public, or in the state as the representative of that public. The riparian proprietor would have no more title to the ice than he would to the fish. It is simply this, that his land joins the land of the state. The fact that it so joins gives him no title to that land, or to anything formed or grown upon it, any more than it does to anything formed or grown or found upon the land of any individual neighbor. Undoubtedly, in view of the importance that ice is rapidly assuming as a merchantable commodity, it would be wise for the state to legislate in reference to the ice product of the navigable streams; but until such legisla tion is had, it would seem that the one

But ice-fields on navigable rivers, after being staked, fenced, and scraped, and in some instances connecting fields extending across the river, are so far the property of the appropriator that an action will lie against one who disturbs his right.' The legislature has authority to provide rules regulating the possession and cultivation of such ice.2 As between the owner of the fee and the owner of an easement, the ice on a pond belongs to the former. The owner of land overflowed by a dam may remove and take ice formed over his land, if he does not perceptibly injure the mill-owner. The owner of a mill-dam on an unnavigable stream, who maliciously and unnecessarily draws off the water on a pond above, destroying an ice-field, is liable to the riparian owner of the land under the pond. All persons have a right to travel over the ice upon a river. If travelers have made a path on it, no one has a right to cut a hole there for the purpose of watering cattle, or any other, and one who does so will be liable for an injury caused thereby. Appropriators of ice on navigable rivers must guard their fields from danger to persons who may be likely to innocently intrude upon them.7

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A sale of ice not yet cut is a sale of personalty. The

who first appropriates and secures the ice which is formed is entitled to it, and on the same principle that he who catches a fish in one of those rivers owns it": Hickey v. Hazard, 3 Mo. App. 480. Gage v. Steinkrauss, 131 Mass. 222; Rowell v. Doyle, 131 Mass. 474. Contra, Washington Ice Co., v. Shortall, 101 Ill. 46; 40 Am. Rep. 176. 1 Woodman v. Pitman, 79 Me. 456; 1 Am. St. Rep. 343.

2 Woodman v. Pitman, 79 Me. 456; 1 Am. St. Rep. 342.

$ Brookville etc. Hydraulic Co. v. Butler, 91 Ind. 134; 46 Am. Rep. 580. Doge v. Berry, 26 Hun, 246. Stevens v. Kelley, 78 Me. 445; 57 Am. Rep. 813.

French v. Camp, 18 Me. 433; 36 Am. Dec. 728.

7 Woodman v. Pitman, 79 Me. 456; 1 Am. St. Rep. 343.

8 Higgins v. Kusterer, 41 Mich. 318; 32 Am. Rep. 160, the court saying: "The sale to Higgins was not a sale of such ice as might from time to time be formed on the pond, but of ice which was there already, and which, if not cut, would disappear with the coming of mild weather, and have no further existence. It was not, like crops or fruit, connected with the soil by roots or trees through which they gained nourishment before maturity. It was only the product of running water, a portion of which became fixed by freezing, and if not removed in that condition, would lose its identity by melting. In its frozen condition it drew nothing from the land, and got

measure of damages for taking ice from a stream, the plaintiff having the exclusive right to such ice, is its value as soon as it existed as a chattel, that is, when scraped, plowed, sawed, cut, and severed, and ready for removal.'

ILLUSTRATIONS. -The owner of a beer-room and an ice-room connected by slides gave a chattel mortgage on it to defendant, and a bill of sale of the ice in the ice-room to plaintiffs. Defendant stored beer in the beer-room, and gave plaintiffs notice to remove the ice, which they did not do, nor did they ever demand it from defendant. Defendant opened the slides between the two rooms, and allowed a current of air to pass over the ice and into the beer-room, cooling the beer, and causing a more rapid melting of the ice than would otherwise have occurred. Held, that defendant is liable for the ice so destroyed: Aschermann v. Philip Best Brewing Co., 45 Wis. 262. A had constructed a boom in a river within which ice was forming, which he intended to cut and sell when deep enough. It had frozen to the depth of six inches, when B's boat, which was running in the river, came so near the boom that her swell broke up the ice, and the weather thereafter continuing mild, A was unable to fill his ice-houses. There was room in the river for the boat to have passed without injury. Held, that B was liable for the damages: People's Ice Co. v. The Excelsior, 44 Mich. 229. See Hickey v. Hazard, 3 Mo. App. 480. A, who had built a dam on a

no more support from it than a log floating on the water would have had. Its only value consisted in its disposable quality as capable of removal from the water while solid, and of storage where it might be kept in its solid state, which could not be preserved without such removal. If left where it was formed, it would disappear entirely. While we think there can be no doubt that the original title to ice must be in the possessor of the water where it is formed, and while it would pass with that possession, yet it seems absurd to hold that a product which can have no use or value except as it is taken away from the water, and which may at any time be removed from the freehold by the moving of the water, or lose existence entirely by melting, should be classed as realty instead of personalty, when the owner of the freehold chooses to sell it by itself. When once severed, no skill can join it again to the

realty. It has no more organic connection with the estate than anything else has that can float upon the water. Any breakage may sweep it down the stream, and thus cut off the property of the freeholder. It has less permanence than any crop that is raised upon the land, and its detention in any particular spot is liable to be broken by many accidents. It must be gathered while fixed in place, or not at all, and can only be kept in existence by cold weather. In the present case the peculiar situation of the pond rendered it likely that the ice could not float away until nearly destroyed, but it could not be preserved from the other risks and incidents of its precarious existence. Any storm or shock might in a moment convert it into floating masses, which no ingenuity of black-letter metaphysics could annex to the freehold."

1 Washington Ice Co. v. Shortall, 101 Ill. 46; 38 Am. Rep. 255.

stream on his own land, obtained from the owner of the land above him the right to overflow his land without any limitation as to the use of the waters held back by the dam. Held, that A was entitled to the ice formed in the water overflowing the lands of the owner above him, and could recover the value of the ice which had been taken therefrom by a third person by permission. of such owner: Myer v. Whitaker, 18 Alb. L. J. 128. The owner of a pond executed a lease under seal, whereby he demised and let "the sole and exclusive right to cut and carry away" from his said pond "all such ice as can be so cut in form and shape to use either for private use or as merchandise"; and it contained a provision "that the lessor may cut all ice needed for his own use from and off said pond." Held, that the lessee acquired a valuable right to use or sell all such ice, except what the lessor needed for his private use; that he had a right of action against both the lessor who interfered with him and a stranger who cut ice from the pond: Richards v. Gauffret, 145 Mass. 486.

§ 1346. Minerals. Soil dug from the land and placed on other land becomes a chattel.2 Minerals are real property while in the earth, but as soon as they are dug out they become chattels personal. A stone split out and freed from its original connection in a ledge, but not

1 This decision is in conflict with that of Emott, J., in Marshall v. Peters, 12 How. Pr. 218, where it was held that the party purchasing ice from the owner of a pond could not obtain an injunction against a trespasser who undertook to remove it. In that case it was said: "The water in a running stream can never become, in any such sense as was claimed on the argument, the property of a riparian proprietor, even if he owns both banks and the stream passes wholly through his lands. All the property that a man can acquire in Howing water is a right to its use. He may have a certain right of property in it, but the water itself is not his property. He has a right to its natural flow, and to use it for his cattle, or his household, or upon his millwheels. But he cannot stop its current, nor divert its flow, nor increase or diminish it in any appreciable quantity. He must allow the waters to pass out of his hands as they enter

them, and his only right is a right to use them as they flow.

2 Northam v. Bowden, 11 Ex. 70; Lacustrine Co. v. Lake Guano Co., 82 N. Y. 476.

3 Lykens etc. Co. v. Dock, 62 Pa. St. 232; Forsyth v. Wells, 41 Pa. St. 291; 80 Am. Dec. 617. The New York statute providing that oil-wells and fixtures on lands leased for oil purposes, and oil interests and rights held under lease, contract, or license, shall be deemed personal property, has no application to an estate carved out of the fee, whereby the land is granted, but the oil, gas, and minerals are reserved, with the exclusive right to dig, mine, operate, etc.; the interest thus reserved is a chattel real: Richburg Bank v. Dow, 41 Hun, 13. The right to mine, to enter land, dig for and remove ore, is an incorporeal hereditament: Arnold v. Stevens, 24* Pick. 106; 35 Am. Dec. 305; Riddle v. Brown, 20 Ala. 412; 56 Am. Dec. 202.

removed away from the place, does not necessarily pass by a deed of the land from which it has been severed. If severed for the purpose of being used upon the land, it will so pass; but if severed in order to be removed and used elsewhere, it will not.1

ILLUSTRATIONS.-The lessee leased coal mines with the "right to mine, carry away, and dispose of the" coal mined. The lessee having mined coal which remained in the mine just as it fell made an assignment for the benefit of his creditors. Held, that the coal was personal property, and passed to the assignee: Lykens Valley Coal Co. v. Dock, 62 Pa. St. 232. The plaintiffs had a mining lease and raised ore, which being unwashed was mixed with the earth and left on the banks of the premises. Held, that replevin would lie for its possession unwashed notwithstanding the adhesion of the earth: Green v. Ashland Iron Co., 62 Pa. St. 97.

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§ 1347. Manure. - Manure is personal property, where it is lying upon the earth, but not incorporated with the soil. A distinction is made in the case of manure on a farm. If made on a farm, it is regarded as part of the realty; as, if it is taken from the barn-yard of the homestead, and is standing in a pile on the land, although not broken up nor rotten, nor in a fit state for incorporation with the soil. In such cases trover lies for it, if severed from the freehold and carried to other premises. But the character of personalty is attributed to manure made in a livery-stable, or in any manner not connected with agriculture, or not in a course of husbandry; and the same has been asserted of manure from a hotel-stable, though afterwards spread upon the land in the usual course of husbandry. The right of an outgoing mortgagor after condition broken to the manure produced upon a farm

1 Noble v. Sylvester, 42 Vt. 146.

2 Pinkham v. Greer, 3 N. H. 484; Haslem v. Lockwood, 37 Conn. 500; 9 Am. Rep. 330; Fletcher v. Herring, 112 Mass. 384.

3 Middlebrook v. Corwin, 15 Wend. 169; Daniels v. Pond, 21 Pick. 367; 32 Am. Dec. 269.

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Fay v. Muzzey, 13 Gray, 53; 74 Am. Dec. 619.

5 Stone v. Proctor, 2 Chip. (Vt.) 108. 6 Daniels v. Pond, 21 Pick. 372; 32 Am. Dec. 269; Snow v. Perkins, 60 N. H. 493; 49 Am. Rep. 333.

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Fay v. Muzzey, 13 Gray, 53; 74 Am. Dec. 619.

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