Richmond Cedar Works v. J.L. Roper Lumber Co.

• Decision Date: 26 March 1913
• Citation: 77 S.E. 770,161 N.C. 603
• Parties: RICHMOND CEDAR WORKS v. J. L. ROPER LUMBER CO.
• Court: North Carolina Supreme Court

77 S.E. 770

161 N.C. 603

RICHMOND CEDAR WORKS v. J. L. ROPER LUMBER CO.

Supreme Court of North Carolina

March 26, 1913

Appeal from Superior Court, Wake County; G. S. Ferguson, Judge.

Action by the Richmond Cedar Works against the J. L. Roper Lumber Company. Defendant's motion that the case be removed to another court was denied, and it appeals. Error.

An action in assumpsit for money had and received against a trespasser who has wrongfully cut and sold timber from plaintiff's premises, and received the money therefor, is a transitory action.

This action was brought in the superior court of Wake county by the plaintiff, a nonresident corporation, against the defendant, also a nonresident corporation; and it is alleged in the complaint substantially:

(1) That the defendant, on December 14, 1885, conveyed to Albemarle & Pamlico Colonization Company, with covenant of warranty, a certain tract of land in the county of Tyrrell in the state of North Carolina, and which is particularly described in the complaint.

(2) That plaintiff has acquired all the right, title, and interest of the said Colonization Company by mesne conveyances.

(3) That defendant, "by its agents, employés, and servants entered upon said tract of land and cut and removed therefrom a large quantity of valuable timber trees standing and growing thereon, and converted the same to its own use; the value of the timber so cut and removed being more than $90,000." (4) That said cutting and removal was done in such a manner and with so little regard to the value of the young timber trees standing and growing on the land, and to its effect upon the land itself, that the land and the freehold therein were greatly damaged, as a result thereof, to the amount of $10,000.

(5) That the deed of the defendant has been lost, and the registry thereof in Tyrrell county shows that no seal of the grantor was affixed to his name subscribed thereto, whereas a seal was actually affixed to his name on the original deed.

Plaintiff also alleges a breach of the covenant of warranty by cutting and removing the trees and damaging the land; but there is no allegation of an eviction from the premises by any one under title paramount. Defendant requested in due time that the case be removed for trial to the county of Tyrrell, alleging that to be its proper venue, and also asked for a removal upon the ground of the convenience of witnesses and readier access to the records of that county. The motion was denied. Defendant excepted and appealed.

Small McLean & Bryan, of Washington, N. C., and R. N. Simms, of Raleigh, for appellant.

Winston & Biggs, of Raleigh, for appellee.

WALKER J. (after stating the facts as above).

That an appeal lies from an order denying a motion for the removal of a case to the proper county for trial has been thoroughly settled by repeated decisions of this court. Manufacturing Co. v. Brower, 105 N.C. 440, 11 S.E. 313; Connor v. Dillard, 129 N.C. 50, 39 S.E. 641; Brown v. Cogdell, 136 N.C. 32, 48 S.E. 515; Perry v. Railroad, 153 N.C. 117, 68 S.E. 1060. It is provided by Revisal, § 419, that actions for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property, must be tried in the county where the subject of the action, or some part thereof, is situated, "subject to the power of the court to change the place of trial in the cases provided by law."

It is difficult to determine the exact nature of plaintiff's intended cause of action by the allegations of its complaint. The best we can make of it is that the whole gravamen of its action is that the defendant unlawfully entered upon the land for the purpose of cutting down and removing the trees thereon, which were afterwards done. The allegations of the pleading are so blended as to render it impossible to separate any one or more of them from the others, and therefrom to frame a cause of action for a simple conversion of the timber which had been severed from the soil.

The doctrine with respect to local and transitory actions, where there has been a cutting of trees from land, is well stated in 40 Cyc. 75, with a copious citation of authorities to support the following text: "Although an action to recover damages for felling a tree upon plaintiff's land, or digging sand in it, or cutting down a telegraph pole fixed in its soil, is local, and may remain local even when the act of cutting down or digging is accompanied with an act of removal of the property from the land, defendant's wrongful act will often result in giving plaintiff the option of suing in a transitory cause. When that which is upon the land and part of the realty has been severed from the soil and removed, it ceases to be part of the realty and becomes personal property. When the trespasser has sold the severed property and received money for it, plaintiff's cause, as a cause of assumpsit for money had and received, is admittedly transitory at common law. It is not the less transitory when asserted with direct reference to the thing severed, as a cause in detinue, or as a cause in trespass de bonis asportatis, or as a cause in trover and conversion. Nor is its transitory character affected by the fact that it is brought against the original trespasser, or that plaintiff's pleading alleges his ownership of the land, if the gravamen of the action is the conversion." When timber is cut from land, the title to it is unchanged. It belongs to the owner of the soil as before the act of severance, and he is entitled to all remedies which the law affords for the recovery of any other personal property or chattels wrongfully taken or detained from its owner. Halleck v. Mixer, 16 Cal. 574; Emerson v. Turner, 95 Ark. 597, 130 S.W. 538, distinguishing Jacks v. Moore, 33 Ark. 31; Bulkley v. Dalbeare, 7 Conn. 232; McGonigle v. Atchison, 33 Kan. 726, 7 P. 550; Riley v. Boston Water Power Co., 11 Cush. (Mass.) 11; Nelson v. Burt, 15 Mass. 204; Mooers v. Wait, 3 Wend. (N. Y.) 104, 20 Am. Dec. 667; Greeley v. Stilson, 27 Mich. 153. Those cases not only state the general rule, but clearly show the distinction between actions for injuries to the land or freehold, and those for the simple and unmixed conversion of trees, growing corn, or cornstalks cut, or sand or earth dug therefrom and afterwards converted, not as a part of the act of cutting or digging, but as a separate and distinct act in itself.

Discussing the question in Greeley v. Stilson, supra, and after stating that actions for trespass on land and injuries thereto are local, and that the testimony in an action for the trespass and one for the conversion of the timber or logs cut and carried away may be practically the same, the court says: "A difference has been recognized, however, arising out of the fact that, until the timber has become personalty, by being severed from the soil, it is not subject to conversion, and that whenever it may be moved in an unmanufactured form, whether in the same or in another county, a conversion may be charged as taking place where it is sold, or otherwise disposed of or appropriated, as well as on the first removal. Locating it as no longer freehold when it has become personalty, the law distinguishes actions for its conversion from those for the act whereby it became changed from realty, and puts all suits on a similar footing and makes them transitory. The distinction is technical; but it seems to be well established."

But a further distinction has also been recognized by two courts of high authority, one having a code system like ours. In Am. Union Telegraph Co. v. Middleton, 80 N.Y. 408 defendant was sued for cutting down and converting telegraph poles, and it was said by the court: "The telegraph poles, with the wires and attachments thereto, which, it is alleged, were cut down by the defendant, were affixed to the soil of a highway, and constituted a part of the freehold. As they could not be cut down without an entry on the realty, and this constitutes a material part of the damages, the only action which can properly be brought is an action of trespass quare clausum fregit. This is clearly manifest; and as such action is local in its character, by the statute as well as by the common law, it will not lie in this state, where the land is located in another state. Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 484. In the case last cited it was held that although the courts will entertain actions which are in their nature transitory, notwithstanding they arise abroad, actions for trespass quare clausum fregit, ejectment, etc., where the land lies in a foreign country, cannot be tried here. It is claimed that the damage to the real estate is not the cause of action; and, as the tortious acts were committed upon the highway where the defendant had a right to be, there could be no trespass on the close. The answer to this position is that the plaintiff had affixed their poles to the realty, and the cutting away of the same was a trespass for which damages could only be recovered by an action quare clausum fregit. It is also insisted that the gravamen of the complaint was for carrying away and converting the poles which were severed, and were personal property after the cutting, even if they were a part of the realty previously. It is quite obvious that the cutting of the poles and the removal of them was one continuous and uninterrupted transaction, inseparably connected together, which constituted a single cause of action which cannot be divided into two actions--one for the cutting and another for the conversion. The one was a part of the other, and the conversion so coupled with the cutting that they were the same, and both of them are thus made local....