Bagley v. Columbus Southern Ry. Co.

• Decision Date: 18 June 1896
• Citation: 25 S.E. 638,98 Ga. 626
• Parties: BAGLEY v. COLUMBUS SOUTHERN RY. CO.
• Court: Georgia Supreme Court

25 S.E. 638

98 Ga. 626

BAGLEY v. COLUMBUS SOUTHERN RY. CO.

Supreme Court of Georgia

June 18, 1896

Syllabus by the Court.

1. A justice's court has no jurisdiction of an action for damages to realty.

2. Fences permanently affixed to land constitute a part of the realty; and, as a general rule, unmatured crops growing upon land belonging to the owner of the crops are to be regarded as part and parcel of the land.

3. It follows that a justice's court has no jurisdiction of an action for damages alleged to have been occasioned by the negligence of a railway company in setting fire to and burning fences inclosing the plaintiff's land, and causing damage to his pasture and to a crop of unmatured cotton growing in his field.

Error from superior court, Chattachoochee county; W. B. Butt Judge.

Action by John D. Bagley against the Columbus Southern Railway Company to recover damages for injuries caused by a fire set by a locomotive. From a judgement for defendant, plaintiff brings error. Affirmed.

Leonidas McLester, for plaintiff in error.

Miller Wynn & Miller, for defendant in error.

SIMMONS C.J.

1. Under the constitution of 1877, the jurisdiction of a justice's court over actions arising ex delicto is confined to "cases of injuries or damages to personal property." Code, §5153; James v. Smith, 62 Ga 345, 347; Mayor, etc., v. Lyon, 69 Ga. 577, 580; White Star Line S. S. Co. v. County of Gordon, 81 Ga. 47, 7 S.E. 231. It follows that a justice's court has no jurisdiction of a case in which the plaintiff seeks to recover damages for an injury to realty caused by the wrongful act of the defendant.

2. In the present case, which was commenced in a justice's court, the plaintiff alleged that the defendant railway company "did carelessly set fire to and destroy and burn a certain cow pasture, and about 300 yards of fencing, and about one-half acre of cotton growing in the field, the property of complainant, and all of the value of $25." Whether the magistrate had jurisdiction to entertain the suit must depend, therefore, upon whether the property alleged to have been thus destroyed is legally to be considered and characterized as personalty or as realty.

The burning of the plaintiff's "cow pasture" can scarcely be regarded as anything less than an injury to realty. Indeed, to characterize such an injury merely as damage to personalty would appear to be a euphemism unwarranted under the strict rules of law. If the plaintiff really intended to aver that the grass or other natural herbage growing upon his pasture lands was destroyed by fire, still such damage is to be legally considered as an injury to realty. "Growing crops, if fructus naturales, are part of the soil before severance." 4 Am. & Eng. Enc. Law, 894. "It is generally held that growing trees, fruit, and grass are parcel of the land." Tyler, Fixt. 735. As we shall hereinafter more fully discuss the nature of growing crops and their legal status, we may dismiss for the present further consideration of the plaintiff's claim of injury to his pasture, and pass to a discussion of the character of the damage he sustained by reason of the burning of his fences.

"A fence is generally considered to be a part of the realty." 7 Am. & Eng. Enc. Law, 905, 906, citing cases. And, to the same effect, see Tyler, Fixt. 116, 132, 133. Certainly, where the owner of land builds or maintains thereon a substantial fence, as a permanent structure, constituting an improvement of the premises, such fence becomes as much an integral part of the realty as would a house or brick wall erected thereon. Our Code settles this question, for it is declared in section 2219 that "anything intended to remain permanently in its place, though not actually attached to the land, such as a rail fence, is a part of the realty." So, the burning of the plaintiff's fences is likewise to be regarded as damage to realty.

Our main difficulty in disposing of the question of jurisdiction raised in this case has been to properly determine the legal character of the third item of damage claimed by the plaintiff, arising out of the destruction of unmatured cotton growing in his field. Many of the modern text-books and numerous adjudicated cases have been adverted to during the course of our investigation, but with a result tending rather to confusion than practical aid, so far as concerns a correct determination of the question whether, at common law, growing crops were characterized as personal or as real property. For instance, Mr. Freeman says: "Crops, whether growing or standing in the field ready to be harvested, are, when produced by annual cultivation, no part of the realty." 1 Freem. Ex'ns, § 113. And, in support of his text, he cites cases to show that unmatured crops are "liable to voluntary transfer as chattels," "may be seized and sold under execution," and pass "to the executor or administrator of the occupier [of the land], if he die before he has actually cut, reaped, or gathered the same." On the other hand, it is broadly stated in the American & English Encyclopedia of Law (volume 4, p. 887) that "growing crops, before maturity, and unsevered from the soil, are part and parcel of the land on which they grow, and pass with a conveyance of the land." Cases almost innumerable are cited as showing that this rule obtains in nearly every state in the Union. This text is then immediately followed by the statement (page 891) that "crops ripe for harvest are personal property. They pass to the executor, and not to the heir. They are liable to be seized on execution, and the officer may enter, cut down seize, and sell the same as other personal estate." On the succeeding page it is said: "Although growing crops are part of the realty, unless severed from the soil, yet, for the purpose of levy and sale on execution, they are suffered to be treated as personalty." Again, we find it stated in 6 Lawson, Rights, Rem. & Prac. § 2681, that "crops, until they are gathered, are things immovable, or real estate, because they are attached to the ground"; but, when "crops are gathered, they become movable or chattels personal, because they are no longer attached to the soil. *** Corn, ripe, but standing cut in the field, passes by deed of the freehold. Unharvested crops go to the devisee of the land, and not to the executor; but, as against the heirs at law, they go to the executor." This statement is met by the assertion to be found in 3 Ballard, Real Prop. § 128, that "annual crops sown by the owner of the soil or by his tenant, and which are the produce of industry and care while growing and immatured, are personal property"; whereas in the first volume of the same work (section 111) it is said that, "as a general rule, growing crops, which have been planted by the owner of the soil, constitute a part of the realty; but this rule is held not to apply to crops which have matured and are ready to be harvested." Mr. Kerr says: "Growing crops planted by the owner of the soil are a part of the realty, and, as a general rule, will pass with it on conveyance. *** And this seems to be the case even though the crops are at the time standing in the field unharvested, although ripe, and the season for gathering them is long past. *** It is the general rule that a crop growing on land at the time of a sale under execution passes to the purchaser; and the same is true on a sale under a mortgage foreclosure. *** And growing crops are a part of the realty as between the successful plaintiff in an action of ejectment and the evicted defendant, where the crops were planted after the commencement of the action in ejectment. But the rule is otherwise where the grain was sown and harvested by one on lands to which he claimed title, and of which he was in actual possession. Crops planted by a tenant who holds under the owner of the soil are, as between the landlord and his tenant, personal property; and the tenant has the right to remove them. They become part of the realty, however, should the tenant voluntarily abandon or forfeit possession of the premises." 1 Kerr, Real Prop. §§ 50, 51. In the second volume of the same work (section 958), the author says: "Where there are annual crops upon the lands assigned to a widow as her dower, which were growing at the time of her husband's death, they will belong to her, and not to the heirs or executors of the husband; but if there has been a severance by the husband, as where he has assigned the crops to pay his debts, the wife will not be entitled to have dower assigned therein." So far as the offense of larceny is concerned, Mr. Bishop says that standing grain was at common law considered as realty, and it required statutory enactment to constitute an unauthorized taking of crops larceny in the several states where such act is made a crime. 1 Bish. New Cr. Law, § 577. In Preston v. Ryan, 45 Mich. 174, 7 N.W. 820, Justice Cooley said: "While it is quite true that the growing crops are a part of the realty, yet, for the purposes of levy and sale on execution, they are suffered to be treated as personalty." And there are numerous cases in which it has been held that where the owner of crops has undertaken to sell the same at private sale, before they matured, or while ripe, though ungathered, such crops, if grain or other agricultural produce raised annually, are to be treated as personalty for the purposes of such sale. The question as to whether such crops were personalty or realty arose in considering the effect of the statute of frauds upon sales of this character. These decisions were confined, however, to sales of such crops only as were termed "emblements" at common law. Clark, Cont. 106. Says Mr. Kerr, in dealing with this subject: "A distinction is to be observed between ...