What Is It about Economists and Horse Manure?

Yesterday, many of my blogosphere colleagues posted about an economics professor at Harvard who was arrested for stealing a truckload of horse manure. See the Emirates Economist here, who raises some interesting questions about the case; also see here, here, and don't miss Phil Miller's exposition here; also Tyler posted about horse manure here a week ago.

I'm surprised that no one has link to the classic case in property law that we studied when I got my two-week law degree from one of Henry Manne's summer programmes.

On the trial it was proved that the plaintiff employed two men to gather into heaps, on the evening of April 6th, 1869, some manure that lay scattered along the side of a public highway, for several rods, in the borough of Stamford, intending to remove the same to his own land the next evening. The men began to scrape the manure into heaps at six o'clock in the evening, and after gathering eighteen heaps, or about six cart-loads, left the same at eight o'clock in the evening in the street. The heaps consisted chiefly of manure made by horses hitched to the railing of the public park in, and belonging to, the borough of Stamford, and was all gathered between the center of the highway and the park; the rest of the heaps consisting of dirt, straw and the ordinary scrapings of highways. The defendant on the next morning, seeing the heaps, endeavored without success to ascertain who had made them, and inquired of the warden of the borough if he had given permission to any one to remove them, and ascertained from him that he had not. He thereupon, before noon on that day, removed the heaps, and also the rest of the manure scattered along the side of the highway adjacent to the park, to his own land.

The plaintiff and defendant both claimed to have received authority
from the warden to remove the manure before the 6th of April, but in fact neither had any legal authority from the warden, or from any officer of the borough or of the town. The borough of Stamford was the sole adjoining proprietor of the land on which the manure lay scattered before it was gathered by the plaintiff. No notice was left on the heaps or near by, by the plaintiff or his workmen, to indicate who had gathered them, nor had the plaintiff or his workmen any actual possession of the heaps after eight o'clock in the evening on the 6th of April.

It is a great case for asking

1. What are the risks?
2. Who is the least-cost bearer of the risks?