Renick v. Boyd

• Decision Date: 20 February 1882
• Citation: Renick v. Boyd, 99 Pa. 555 (Pa. 1882)
• Parties: Renick v. Boyd.
• Court: Pennsylvania Supreme Court

99 Pa. 555

Renick v. Boyd.

Supreme Court of Pennsylvania.

February 20, 1882

February 7, 1882

1.An action of replevin will not lie for growing crops severed by the person in possession under claim of title to the land on which the crops were grown.

2.The provisions of the act of May 15, 1871, Pamph.L. 268 enabling the owner of realty to sustain an action of replevin to recover timber, lumber, coal or other property severed from the realty, notwithstanding the fact that the title to the land may be in dispute, do not apply to the case of growing crops.

3.The words " other property," employed in the said Act were intended to include only articles of the same generic character as those already enumerated,--such as slate marble, iron ore, zinc ore, and all other forms of minerals and ores, building-stone and fixtures, and machinery of every description which have been permanently affixed to the realty.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Chester County: Of January Term 1882, Nos. 228, 229.

Two actions of replevin, by James Renick against John Boyd, to recover hay, oats and corn after they were harvested.Pleas, non-cepit, and property.

On the trial, before CLAYTON, P. J., the following facts appeared: At a public sale of land of the estate of one Correy, on December 28th 1879, the plaintiff purchased a tract of 118 acres, the purchase money of which was paid and deed delivered on March 31st 1880.The defendant was at that time in possession of said tract under a claim of title, and occupied the dwelling-house thereon.The plaintiff, by his employés, took possession of the land, and farmed the same during April and May 1880, planting corn, oats and grass seed.

The defendant, who continued to occupy the dwelling-house, in June 1880, took possession of the land so farmed by the plaintiff, and harvested the oats and hay growing thereon.The first action of replevin was brought July 21 1880, for the hay and oats then in the barn.The defendant subsequently cut the corn, and the second replevin was brought October 29th 1880, for the corn in the shock.

In the meantime, on August 18th 1880, the plaintiff brought ejectment to recover possession of the land.On January 4th 1881, he recovered a verdict in his favor, on which judgment was entered, and on February 9th 1881, plaintiff recovered possession under a writ of habere facias possessionem.

These actions of replevin were tried together May 17th 1881.

The Court charged the jury as follows:

" [Under the evidence it clearly appears, that at the time the grass, oats and corn were cut and harvested, the defendant was in actual adverse possession of the land in dispute, by virtue of a claim of title; and, according to law, an action of replevin will not lie, under such circumstances, for the growing crops and products of land.]

The remedy must be sought in another form of action--an action upon the case for damages for the mesne profits of the land, after the determination of the question of title in an action of ejectment.The writ of ejectment was issued and has been tried, but there has been no action for the mesne profits.

In other words, I instruct you that the products of land in the actual possession of another, may be lawfully cut and harvested by the person in possession.

[The defendant, being in possession under a claim of right when the grass, oats and corn in dispute were cut and harvested, the plaintiff's remedy is in an action for damages.He cannot recover the thing itself, and your verdict should, therefore, be for the defendant in both cases.]"

The jury accordingly found a verdict for the defendant in each case, and judgments were entered thereon.The plaintiff thereupon took these writs of error, assigning for error the portions of the above charge included in brackets.

Wm. M. Hayes(A. P. Reid with him), for plaintiff in error.--We were entitled to recover under the Act of May 15th 1871, P. L. 268, Purd. Dig. 1266, pl. 6, which provides: " In all actions of replevin now pending or hereafter brought, to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed, may be in dispute: Provided, said plaintiff shows title in himself at the time of the severance."

That Act was intended to cover just such a case as this, where the defendant is insolvent, and may remove the property, when a verdict for mesne profits in ejectment will prove illusory.We complied with the proviso in the Act, having shown title in ourselves in the ejectment.

Chas. H. Pennypacker(John J. Gheen with him), for the defendant in error.-- The Act of 1871 applies specifically to timber, lumber and coal.The phrase " or other property" must be construed, or other similar property; it cannot cover crops severed by one in possession under claim of title.The Act was not intended to establish a new method of trying title to real estate in an action of replevin for crops.Morris on Replevin 108; Mathias v. Sellers, 5 Norris 492; Lake Shore R. R. Co. v. Ellsey, 4 Norris 285; Reinheimer v. Hemingway, 11 Casey 432.

Mr Justice GREENdelivered the opinion of the court, February 20th 1882.

These were two actions of replevin, brought to recover certain hay oats and corn, after the same had been harvested, upon land of which the defendant was in the actual and adverse possession, both before, and at, the time the crops were gathered.The plaintiff had brought an action of ejectment against...