Works v. J. L. Roper Lumber Co

• Decision Date: 26 March 1913
• Court: North Carolina Supreme Court
• Parties: RICHMOND CEDAR WORKS. v. J. L. ROPER LUMBER CO.

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.

1. Appeal and Error (§ 106^*)—Appealable Orders—Removal of Cause.

An order denying a motion for the removal of a case to the proper county for trial is appealable.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 724-734; Dec. Dig. § 106.*]

2. Appeal and Error (§ 1178*)—Remand of Cause—Amendment of Pleading.

Where by the most liberal construction of an ambiguous complaint, wherein recovery is sought for trespass and the cutting, removal, and sale of timber, the Supreme Court, on appeal from an order denying defendant's motion for a removal to the county wherein the land is situated, is able to find an allegation upon which an action for the conversion of the trees could be based, it will set aside the order as erroneous and remand the case so that the parties may amend or replead.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.*]

3. Venue (§ 7*)—Local and Transitory Actions.

Assumpsit for money had and received against a trespasser who had wrongfully cut and sold timber from plaintiffs premises, and received the money therefor, is a transitory action, though the ground of recovery is stated with direct reference to the timber, and the action is brought against the original trespasser, and the complaint alleges plaintiff's ownership of the land; it being sufficient that the gravamen of the action be the conversion of the timber.

[Ed. Note.—For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. §7.*]

4. Pleading (§ 18*)—Sufficiency.

While technical accuracy in pleading is not essential, and the allegations will be liberally construed in aid of the pleader, without reference to the form of the prayer, or even if there is no prayer or the pleader misconceives his remedy, it is still essential that a complaint be clear and concise so as to involve the real issue.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 39; Dec. Dig. § 18.*]

5. Corporations (§ 666*)—Foreign Corporations—Venue.

Under the express provisions of Revisal 1905, § 423, the venue of an action by one foreign corporation against another foreign corporation to recover for trespass and the wrongful cutting, removal, and sale of timber from plaintiff's land is in the county where the cause of action arose, and not in another county where the defendant does not usually do business or have property, and where the plaintiff does not reside.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 2601, 2602; Dec. Dig. § 666.*]

6. Pleading (§ 369*) — Election Between Causes of Action—Venue.

Under Revisal 1905, § 469, making it improper to join causes of action requiring different places of trial, a plaintiff suing a foreign corporation and setting up causes of action in tort for trespass or for conversion of timber, or in assumpsit for money received from timber sold, could be required to elect between the causes; the plaintiff having no right by uniting two causes of action having different venues to deprive defendant of the right to have a local cause of action tried in the proper county.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. § 369.*]

7. Covenants (§ 114*)—Breach of Warranty—Petition.

A complaint which failed to show that there had been an ouster or eviction under superior title was insufficient to state a cause of action for breach of a covenant of warranty.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. §§ 189-202, 263; Dec. Dig. § 114.*]

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

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

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, employes, 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). [1] 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. Dil-lard, 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 Pac. 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...