Gamble v. Cook, 106 Mich. 561

Gamble v. Cook

106 Mich. 561 | Mich. | 1895

Grant, J.

(after stating the facts). We think that the learned circuit judge was in error. The basis of the judgment appears to be that since plaintiff had not the legal title, and was not in the actual occupancy, and therefore could not maintain an action of trespass, he could not, for the same reason, maintain replevin for tim*563ber cut and removed by a trespasser. The actions of trespass and replevin do not always depend on the same state of facts, and are not always concurrent. One will-often lie where the other will mot. Cobbey, Repl. §§ 17, 18. Had plaintiff either the actual or constructive possession, he could maintain either trespass, replevin, or both. In replevin he would be entitled to recover the value of the timber severed, and in trespass damage for the injury to the freehold other than the value of the timber. When the timber was severed, it became personal property. In whom was the title? Was it in the vendors or vendee, parties to the land contract, or in the trespassers, who had cut it? Clearly, it was not in the vendors, for they had sold it to plaintiff, and authorized him to cut and remove it, and had no further “interest in it. It is equally clear that the trespassers had no right to it by title or possession. If plaintiff had purchased by written contract only the standing timber, with the right to cut and remove it, and a stranger had severed and taken it away, clearly the title would have been in plaintiff, and he could have recovered it in an action of replevin. This, in effect, was done. The sale of the timber was expressly provided for in the contract, and ihe right to it is mot affected by the fact that it also- provided for a sale of the land. The title to land is not involved in this case, but only the title to timber. Nor does the title to the timber depend upon the title to the land. The law does not give to irresponsible timber thieves and trespassers the advantage which this doctrine, if sustained, would afford them. Plaintiff had a good title by virtue of his contract, as against naked trespassers. The defendants showed no title in themselves or any right of possession. One of them admitted that he had no such right, by commencing lien proceedings after this suit was commenced. Cook v. Cook, ante, 164. By the record, therefore, they appear as mere trespassers.

*564Judgment will be reversed, and entered in this court for plaintiff, with the costs of both courts.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.