Wilson v. Hoffmann

• Decision Date: 28 July 1892
• Citation: 93 Mich. 72,52 N.W. 1037
• Court: Michigan Supreme Court
• Parties: WILSON v. HOFFMANN.

52 N.W. 1037

93 Mich. 72

WILSON v. HOFFMANN.

Supreme Court of Michigan

July 28, 1892

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Trover by Oscar A. Wilson against John M. Hoffmann for cutting and removing standing timber from plaintiff's premises. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Frank Whipple, for appellant.

Avery Bros. & Walsh, for appellee.

MCGRATH, J.

Plaintiff recovered in ejectment against defendant, and, after affirmance by this court, (see 70 Mich. 552, 38 N.W. 558,) filed, in April, 1889, a suggestion of damages in the circuit court. The bill of particulars of his claim in that proceeding contained the following items:

For rent of premises 6 years, at $50 per year ......................... $300 00

For 296 logs, 33,650 feet of pine logs cut and moved by defendant from

the land described in plaintiff's declaration, at $16 per M........... 538 70

For 77 cords of bolts, at $10 .......................................... 770 00

On the 8th of October, 1889, the trial resulted in a verdict for plaintiff for $72. Before filing the suggestion for rents and profits as above, plaintiff commenced this action of trover by summons, filing his declaration July 20, 1889, seeking "to recover the value of 500 pine trees, 100 oak trees 100 hemlock trees, 500 pine logs, 100 oak logs, 100 hemlock logs, 100,000 feet of pine logs, and 100 cords of pine bolts all of the value of five thousand dollars." Defendant pleaded the general issue, with notice of the pendency of the other suit involving the same matters. After the trial of the proceeding for assessment of damages, upon leave granted defendant filed an amended plea, setting up the judgment in the other suit as a bar to this action. The learned circuit judge directed a verdict for defendant.

Defendant's contention is (1) that trover will not lie for the cutting and removing of standing timber from premises while in possession of a defendant in ejectment under claim of right, and (2) that the judgment in the action for mesne profits is a bar to the maintenance of the present suit.

It seems to me that the case of Busch v. Nester, 62 Mich. 381, 28 N.W. 911, and 70 Mich. 525, 38 N.W. 458 disposes of the first contention. The only difference between the cases is that in that case the party in possession of the land, and who had cut the logs under a bona fide claim of title adverse to the owner, brought replevin against the true owner, who had obtained possession of the logs by questionable methods, before the question of title to the land had been determined; while in the present case the true owner brings trover against the party who cut the logs, under a bona fide claim of title adverse to the owner, after the title to the land had been determined in favor of the plaintiff. I am unable to discover why any different rule should be adopted, because in this suit Busch is the defendant. If in the present case the logs had been upon the land when the ejectment suit was determined, that determination would have established the title in plaintiff. Suppose, however, that before the determination of the ejectment suit the logs had been skidded upon adjoining land, would the ownership or right to possession depend upon which party first reached the skids? As is said in the Busch Case, as between the wrongdoer and the true owner of the land, the title to what is severed from the...