PRESCRIPTIVE RIGHT. 183 



Dr. Wakefield. Does the principle stated in regard to 

 manure apply to manure in the barnyard at the time of the 

 sale, as well as to manure outside ? 



Judge Bennett. It does apply to all the manure on a 

 farm : that is what I was speaking of. But if a livery-stable 

 keeper should sell his stable, with piles of manure around it 

 or in the cellar, that manure is said by our law not to pass 

 by deed. The deed of a farm conveys the manure, because 

 the purchaser wants the manure on the farm, and expects to 

 buy it with the farm, and therefore the law ordinarily gives 

 it to him, unless it is reserved. 



Dr. Wakefield. It makes no difference whether it has 

 ever been moved or not ? 



Judge Bennett. No, sir, if still on the land sold. 



Question. If the public pass over land for twenty years, 

 do they acquire a right to pass over it? 



Judge Bennett. No, sir; not if they pass with the own- 

 er's permission. They would not acquire a right in a hundred 

 years if they went with the permission of the owner. They 

 must go against the owner's wish, under a claim of right to 

 do so. In that way they would get a right to do so in 

 twenty years. 



Question. If I allow a person to go to my well and 

 take water, year after year, and continue to do so for a quar- 

 ter of a century, does he acquire any right from me by that ? 



Judfje Bennett. I don't think he would if he went 

 three-quarters of a century: otherwise, you might not be 

 neighborly and let him come, if you suj)posed he was getting 

 a right. 



Question. Suppose a tree stands on my neighbor's land 

 within a foot of the fence, and I see fit to drain my land, 

 and in doing so cut off the roots, and kill that tree ? 



Judge Bennett. You have a perfect right to do so. 



Mr. Perey. If I should buy a piece of land of you, and 

 take a deed, and fail to record it for five j'ears, and you take 

 a notion to sell that land again, and j'ou sell it to another 

 man, wlio pays you for it, and puts his deed on record first, 

 who holds the land ? 



Judge Bennett. He does, unless he knew you had that 

 deed before. If he did, then he cannot hold it, because that 

 would be a fraud on you. That is what the record is made 



