Bond v. Griffin

• Decision Date: 03 May 1897
• Citation: 22 So. 187,74 Miss. 599
• Court: Mississippi Supreme Court
• Parties: PRESTON BOND ET AL. v. W. E. GRIFFIN

22 So. 187

74 Miss. 599

PRESTON BOND ET AL. v. W. E. GRIFFIN

Supreme Court of Mississippi

May 3, 1897

March 1897

FROM the circuit court of Harrison county HON. S. H. TERRAL Judge.

Appeal by defendant below and the sureties on his replevin bond cross appeal by plaintiff below. The facts are stated in the opinion of the court.

Judgment reversed.

Mc Willie & Thompson, for the appellants and cross appellees.

The logs actually cut and removed from the school land in question were so inextricably mingled with the other logs of the defendant as to render identification of them impossible. Under the established rule, replevin cannot be maintained in such a case unless the confusion was caused by the wilful and wrongful act of the defendant. In the absence of proof of such wrongful act, complete identification is required. 20 Am. & Eng. Enc. L., 1063, notes 3 and 4.

The court will also observe that in this action the lower court by its instructions, recognized the attitude of the defendant as one who had cut and removed the timber upon a bona fide claim of right, and limited the damages recoverable against him to the value of the trees as they stood in the forest. It would be idle to argue the propriety of this ruling, in view of the recent clear and emphatic utterances of this court in the case of the Illinois, etc., R. R. Co. v. LeBlanc, post, p. 626, where the authorities on the subject are fully reviewed.

The judgment in this case is incorrect, even if we concede the plaintiff's right to a recovery. The defendant had given bond, but the judgment is not expressed in the alternative, as required by § 3726, annotated code 1892, and does not give to the defendant and the sureties on his bond, the alternative right to restore the property or pay the assessed value thereof. This is a flagrant violation of the terms of the statute, as well as a shrewd method of obviating the effect of the instructions of the court for the ascertainment of plaintiff's damages.

Proceeding under this erroneously entered judgment, the plaintiff promptly notified the defendant and his sureties that he elected to require the restoration of the logs, or, in other words, would take the property as enhanced by the labor and means of the defendant, who had cut the logs, believing in good faith that he owned them and the land on which they stood. The logs were worth $ 900 cut and put into the water courses. As they stood in the forest, they were worth the sum found by the jury, $ 121.75. That the judgment is erroneous in not following the statute providing for a recovery in the alternative of the logs or their assessed value, there can be no doubt. Code 1892, § 3726; Pearce v. Twitchell, 40 Miss. 344; Bates v. Snyder, 59 Miss. 497; Heard v. James, 49 Miss. 236; Illinois, etc., R. R. Co. v. LeBlanc, post, p. 626. Suppose the case of replevin for a mere canvas worth five cents, upon which, after it had been taken in the honest belief of ownership, defendant had painted a masterpiece, the picture being worth thousands of dollars. Could the owner of the canvas recover the picture in replevin, or would the defendant have the right to retain it, paying full value for the trifling canvas?

The other questions in the case are so well argued by Mr. Evans, our associate, that we can add nothing to his brief upon them.

W. G. Evans, Jr., on the same side.

"If timber is even severed by a trespasser from leased premises, the lessor shall have it, and not the tenant for life or years." 1 Washburn on Real Prop. (4th ed.), 154, sec. 49; Taylor's Landlord and Tenant, 59, sec. 51 (8th ed.). "Trees, however, when severed from the freehold, become the absolute and sole property of the reversioner, and trespass will lie in his favor against anyone who removes them, even though it be the tenant himself." 1 Washburn, 154, sec. 49; Ib., 157, sec. 55; Ib., 466, sec. 20; Ib., 129-30, sec. 5; Ib., 155, sec. 51. "The tenant cannot maintain a suit or recover timber cut from the leased premises." 1 Taylor's Landlord and Tenant, 415, secs. 354, 771 (8th ed.); 2 Ib., 189-90, sec. 173. "If trees be severed by a trespasser, the lessor shall have them." 1 Taylor's Landlord and Tenant, 409-10, sec. 350 (8th ed.). The title to the lands from which the logs in controversy were cut (section 16) was at that time, always has been, and is now in the State of Mississippi. Jones v. Madison County, 72 Miss. 777. In a lease of a sixteenth section there is no authority given, expressed or implied, authorizing a tenant to cut timber, more than the implied right to do repairs, erect buildings on the land and remove such timber as may be required in order to improve and cultivate the land, and a tenant of a sixteenth section stands, therefore, in the identical attitude of any other tenant, it matters not if his term is for ninety-nine years; and we can find no authority anywhere which authorizes a tenant to recover timber that has been cut and removed off the demised premises. The judgment cannot stand, as it is in direct conflict with the instructions of the court. When a judgment in replevin is for a limited interest, it should be so stated. Code 1892, § 3726; also see annotations in code.

Calhoon & Green, for appellees and cross appellants.

The material part of the judgment is, that plaintiff have and recover the logs, describing them, and, if the same are not to be had, the alternate value thereof, to wit: $ 121.75. The point is made that this judgment is wrong, because it gave to the plaintiff, the real owner, the right to have the logs themselves restored to him. Counsel seem to think that the statute is solely for the benefit of the defendant, the wrongdoer, and that it gives him the option of returning the property or paying its value. This will not do at all; the fact is, that, even under the statutes which left out the words "if to be had, " the courts have always held that the plaintiff might have the property if it could be found, otherwise he got his damages. Up to the enactment of the code of 1892, the statutes on the subject of the judgment in replevin, have provided that the judgment should be for the recovery of the property and the damages assessed, in case the sheriff held the property, and, in case the property remained in the possession of the defendant, that the judgment should be that he restore the property or pay its value. Code 1880, §§ 2622, 2623.

Pursuant to this judgment, the statutes awarding execution in action of replevin, have always been to command the sheriff to take the property in controversy, if the same may be had, and deliver the same to the successful party, and, if not to be had, that he make the value therefor, together with the damages and cost of the goods, etc., of the party and his sureties, against whom the judgment is rendered. Code 1880, § 2624.

All that the code of 1892, § 3726, does, is to incorporate in the section on judgments, the words "if the same may be had, " which appear in all the statutes on executions in replevin. Code 1892, §§ 3726 and 3729. This was done simply to harmonize the sections on judgments with the sections on executions in replevin. Harvey v. Edington, 25 Miss. 22; Anderson v. Tyson, 6 Smed. & M., 244; Heard v. James, 49 Miss. 236; Peterson v. Polk, 67 Miss. 163; Smokey v. Peters, 66 Miss. 471; Phillips v. Gastrell, 61 Miss. 416, 417.

Replevin must not be confused with either trover or trespass in the consideration of this case. Trespass is for wrongdoing, and is to recover damages for the wrong, and not to recover goods or their value. Trover is of the same nature, and both proceed on the idea that the goods are not recoverable, while replevin is an action to recover a specific thing which has been taken from the owner. In an action of trover, only the value of the property lost is recoverable; in an innocent trespass, only actual damages. In an action of replevin the property has always been recoverable, but damages over and above the recovery of the property, in an action of replevin, cannot be had where the original taking was not wilful.

The further distinction is to be observed, as in the LeBlanc case, that where the party is in the actual adverse possession of property under a bona fide claim of right, and he removes part of it and sells it, he is liable in trespass for only the actual value of the property before its amotion. The reason is plain, because the bringing of the action of trespass might be delayed until repeated amotions had involved large expense and damages. But, suppose in the LeBlanc case, post, p. 626, that as soon as the gravel had commenced to be removed, LeBlanc had entered his action of replevin against the railroad company for the specific gravel, which could have been seized and identified by the sheriff. In such case, would any lawyer pretend that LeBlanc could not have recovered his specific gravel? We apprehend not. To so hold would, of course, invite the seizure of property by wrongdoers, and would force the owners to part with their property whether they wanted to or not. If a party can identify the original materials, he can pursue and recover them in an action of replevin, whatever alterations those materials may have undergone. Street v. Nelson, 80 Ala. 230; Wright v. Guier, 9 Ways, 177; Riley v. Boston, 11 Cush., 11; Snyder v. Vaux, 2 Rawle (Pa.), 421; Wingate v. Smith, 20 Me., 287; Schluenburg v. Harriman, 21 Wal., 44; Bent v. Hoxie, 90 Wis., 625.

The attempt of counsel to assimilate this case to that of a man who had tortiously come into possession of a piece of canvas and had painted on it a picture worth a vast sum of money, is hardly worthy of consideration. Such an instance is too extreme for the courts to consider in establishing rules for the conduct of mankind...