Bulkley v. Dolbeare

| Conn. | Jul 15, 1828

Hosmer, Ch. J.

I put out of consideration the objection, that trover is sustainable in the proposed case, as not bearing on the point of controversy. It is no legal consequence, because one species of action may be maintained, that therefore a different action cannot be supported. It frequently happens, that trespass, trover and assumpsit for money had and received may, either of them, be maintained, on the same facts, at the election of the party bringing the suit.

The case involved in the judge’s charge, on which the jury were informed an action of trespass might be -maintained, was merely this. A. has title to a farm, which he has leased for years to B., or on which B. has entered with force and arms, claiming title ; and C., while A. is out of the actual possession, without licence, cuts down trees, and some time after the severance of them from the soil, conveys them away. There is no doubt that an action of trespass is sustainable by A.

The actual possession of the trees, in the supposed case, was not in the person occupying the land ; and the enquiry is, who had the constructive possession of the property ? The action of trespass is founded on possession ; but the possession need not be actual; it is sufficient if it is constructive.

After the trees were severed, in whom was the general property ?

The case depends, entirely, on the answer to this question.

It clearly was not in a disseisor, who entered by trespass. It is equally certain, that it was not in a tenant for years ; for as incident to his estate, although he has right to enjoy the benefit of the trees while standing, and to reasonable estovers; yet when they are felled by another, he has no property in them. The general property of the trees, after severance, was, unquestionably, in the owner of the land ; in other words, in the plaintiffs. Gordon v. Harper, 7 Term Rep. 9. 11.

It is established law, that the person who has the general property in a personal chattel, may maintain trespass for the taking of it, by a stranger, although he never had the possession in fact; for a general property in a personal chattel, draws to it a possession in law. Bro. Abr. tit Trespass, pl. 303. 341. Latch 214. 2 Bulst. 268. Bac. Abr. Trespass. C. 2. 3 Stark. Ev. 1439.

The principle is very clearly stated, in the case of Putnam v. Wyley, 8 Johns. Rep. 435., and with this comment upon it, by way of illustration ; that “ a plaintiff must have such a right as to be entitled to reduce the goods to actual possession, when he pleases.” Of consequence, if they, for a limited time, are in the possession of another, so that the plaintiff has only a reversionary interest, he cannot maintain trespass. Smith &. al. v. Milles, 1 Term Rep. 475. Ward v. Macauley, 4 Term Rep. 489. Gordon v. Harper, 7 Term Rep. 9.

The case may be summed up in one proposition, and that is, that the plaintiff having the general property in the trees in question, which were not in the actual possession of any one, at the time of the trespass committed, the law invested him with a constructive possession, and with the right of maintaining trespass for the taking and carrying away of the property.

The cases cited by the defendant have no material bearing on the question before the court. They were enquiries under leases, and depended on the construction of contracts, entered into by the owner of the property in question. Vid. Lewis Bowles' case, 11 Co. 82 b.

The other Judges were of the same opinion.

New trial not to be granted.