| Ill. | Dec 15, 1851
This was an action of replevin brought by Davis against Charles and Thomas Easley, for the recovery of a quantity of boards. The boards were found by the sheriff in the possession of the defendants, and delivered to the plaintiff. The defendants pleaded two pleas: First. Non cepit. Second. That the boards were the property of the defendants, and not the property of the plaintiff.
It appeared in evidence, on the trial, that, in February, 1849, two cherry-trees were standing and growing in the open and uninclosed woods, on a tract of land in Schuyler county, known and designated as one hundred acres off the east side of section twenty-one, in township two north, of range one west of the fourth principal meridian ; that several days afterwards the trees were felled and cut up into saw-stocks, by some person unknown; that "the defendants hauled the stocks to a saw-mill, and had them sawed into boards; that they removed the boards to their residence, from whence they were taken by the sheriff. The plaintiff then proved, by a witness, that there was a cabin and from one to four acres in cultivation on the tract of land in 1836 ; that the witness entered upon the tract in the spring of 1837, as the tenant of the plaintiff, and remained in possession one year, during which time he cleared and fenced eight acres of the land ; that, in 1838, the plaintiff built a cooper’s shop on the tract, which he has used ever since ; that, during the same year, the plaintiff set out an orchard on the tract of from three to five acres, which is about two hundred yards from his house, situate on an adjoining tract belonging to him ; that at the time of the cutting down of the trees, and the hauling away of the logs, there were eighteen or twenty acres of the tract inclosed and under cultivation, besides the orchard; that the plaintiff, on all occasions, claimed to be the owner of the whole tract, and the improvements thereon had been in his possession, or that of his tenants, ever since 1837; and he had cut his firewood on the tract during all of that time. The plaintiff read in evidence a deed from Louderback and wife to himself, for the one hundred acres of land, bearing date the 19th of April, 1836, and acknowy ledged and recorded during the same month. The deed recited a consideration of $750, and contained covenants of seizin and general warranty. He also read in evidence several receipts of the collector, showing that he had paid all taxes on the land from the year 1840 to 1848, both inclusive. This was all of the evidence in the case. At the instance of the defendants, the court afterwards excluded the deed and tax receipts from the consideration of the jury. A verdict was returned in favor of the defendants; and they had judgment for costs, and the return of the property replevied.
If the plaintiff was the owner of the trees, there can be no doubt of his right to maintain replevin for the boards. The property in the trees was not changed by manufacturing them into lumber. The title still continued in the former owner. The property was still capable of being identified. The owner of property, wrongfully taken, may pursue it, so long as it can be identified. Whatever alteration in form it may assume, the owner may reclaim it, in its new shape, if he can establish the identity of the original materials; as where cloth is made into a garment, trees into rails or boards, or iron into bars. The wrongful.-taker cannot by any act of his own acquire title against the owner, unless he destroys the identity of the thing, or annexes it to, and makes it a part of some other thing, which is the principal ; as the conversion of grain into malt, coin into a cup, or timber into a house. 2 Blackstone’s Comm. 404; 2 Kent’s Comm. 363; Snyder v. Vaux, 2 Rawle, 423" date_filed="1830-03-27" court="Pa." case_name="Snyder v. Vaux">2 Rawle, 423; Betts v. Lee, 5 Johnson, 348; Brown v. Sax, 7 Cowen, 95.
Did the court err in excluding the evidence introduced by the plaintiff? A party in the actual possession of land, may maintain trespass against a stranger, for any disturbance of his possession. The law presumes that he is rightfully in possession, until the contrary appears. And in actions of ejectment, and for injuries to the inheritance, the possession of a tract of land by a party, claiming to be the owner in fee, is primd facie evidence of his ownership and seizin of the inheritance, and throws upon his adversary the burden of rebutting the presumption thus raised. Rickard v. Williams, 7 Wheat., 59" date_filed="1822-02-28" court="SCOTUS" case_name="Ricard v. Williams">7 Wheaton, 59; Steele’s Heirs v. Logan, 3 A. K. Marshall, 394; Jackson v. Porter, Paine’s Rep. 457; Day v. Alverson, 9 Wend., 223" date_filed="1832-05-15" court="N.Y. Sup. Ct." case_name="Day v. Alverson">9 Wendell, 223; Mason v. Park, 3 Scammon, 532. In Sawyer v. Newland, 9 Vermont, 383, it was decided that an entry by a party upon land, under a conveyance, and cutting and selling timber from time to time, and exercising acts of ownership over the land, although no part of it was inclosed, was a sufficient possession to maintain an action of trespass against a stranger. The court said: “ To constitute possession, no doubt, there must be an exercise of acts of ownership on the land itself. It is not necessary that the land should be inclosed by a fence, as is sometimes understood.” Again: “ Cutting wood and timber from year to year, disclaiming any ownership, or perhaps without any claim of title, might be considered as nothing more than trespass; whereas, the same acts on a lot of land marked out, or the boundaries of which were designated by a survey or deed recorded, or by known or acknowledged metes and bounds, and under a claim of title, would be treated as unequivocal acts of possession.” In Penn v. Preston, 2 Rawle, I^it was held that the possession of a farm drew to it Jflie the woodland belonging thereto, though not md0secl; and ts?a|the party in possession of the farm could matóainvtr^pass^linst a wrongdoer, for destroying timber in ti^woodmha. It was said by the court: “ In this case, beyondra <|U|ígi jjno dsession was such as to comprehend the timbeiydhough not jngfrosed. I hold, that there is no usage of the country, noTTeSl^CS' the common law, nor any reason requiring a man to inclose his timber land; and, that for any possible purpose that can be named, the woods belonging to a farm are as well protected by the law without a fence as with one.” In Macldn v. Geortner, 14 Wend., 239" date_filed="1835-10-15" court="N.Y. Sup. Ct." case_name="Machin v. Geortner">14 Wendell, 239, proof that the premises were used by the plaintiff as a wood-lot, for the purposes of" fuel and fencing, was held to be sufficient evidence of actual possession, to sustain an action of trespass for cutting timber thereon. The court remarked: “ The plaintiff had all the possession which can be had of a wood-lot, reserved and used exclusively for fuel, fencing, &e. A constant and uninterrupted use for those purposes, is undoubtedly sufficient to constitute actual possession, and to enable the plaintiff" to maintain trespass for any encroachment upon it.” A party who enters into land under a conveyance, though from a person having no title, is presumed to enter according to the description in the deed ; and his occupation of a part, claiming the whole, is construed as a possession of the entire tract; and such occupation will enure as an adverse possession of the whole, and, if continued for the length of time prescribed by the statute of limitations, will bar the entry of him who has the legal title. The possession is considered as coextensive with the claim of title ; and the entry as a disseisin of the true owner to the same extent. Lessee of Clarke v. Courtner, 5 Peters, 318; Noyes v. Dyer, 25 Maine, 468; Crowell v. Bebee, 10 Vermont, 33; Bailey v. Carleton, 12 New Hampshire, 9; Hinton v. Fox, 3 Litt., 380" date_filed="1823-06-07" court="Ky. Ct. App." case_name="Hinton v. Fox">3 Littell, 380; Ellicott v. Pearl, 10 Peters, 412; Bank v. Smeyers, 2 Strobh. 24. The acts and declarations of a person, while in the occupation of a tract of land, may be given in evidence to explain the character and extent of his claim and possession. Jackson v. McCall, 10 Johnson, 377; Moore v. Moore, 21 Maine, 350; Shumway v. Holbrook, 1 Pickering, 114; Rickard v. Williams, 7 Wheaton, 59.
In this case, the evidence was primd facie sufficient to authorize the plaintiff to maintain the action. He entered on the land under a conveyance in fee, more than twelve years before the injury complained of was committed. During all of that time, he had the uninterrupted and conclusive possession of a portion of the tract, and claimed.title to and exercised acts of dominion over the whole. He continue'd to extend his improvements, and constantly cut firewood on the part uninclosed. There was no conflicting claim to any part of the tract. He paid the taxes assessed on the entire tract, and exercised all the acts of ownership over it, that are ordinarily exercised by proprietors of timber land. The woodland adjoined his improvements, and formed a part of his plantation. His occupation and acts were all consistent with the title under which he entered. He had all the possession of the part on which the trees were cut, that can well be had of woodland, set apart and used for purposes of fuel and timber. It has been shown, that an inclosure was not necessary to give him the actual possession. And, in the absence of a fence, what other possession can be had of timber land, than the constant and uninterrupted use of it, under a claim of title, as in this case. Under these circumstances, there can be no reasonable doubt of the right of the plaintiff to maintain his action against a stranger. It is a fair presumption, from the evidence, that the defendants were mere trespassers on the land. Failing to show any interest in themselves, or any license from a person having title, they are to be regarded as mere intruders, entering without right or authority, and acquiring no rights on the land, as against the party in possession. The deed was clearly admissible, to show the nature and extent of the plaintiff’s possession. It defined the boundaries of the land, and showed the kind of estate claimed. The tax receipts were also admissible. The payment of taxes indicated that the plaintiff claimed title to the whole tract. It likewise tended to explain the character and extent of his possession.
The judgment is reversed, and the cause remanded.
Judgment reversed.