20 S.E. 188 | N.C. | 1894
The plaintiff's complaint is in the nature of a declaration for trespass in the entry by the defendant upon her land, after being forbidden, and cutting, carrying away and converting to his own use valuable timber that was growing thereon, to her damage $500. The logs after being severed were transported to New Bern in two lots, one of which lots was seized by plaintiff after reaching that city, where it was much more valuable than at the stump, and was sold by her for the sum of $112. The other lot was converted into boards and sold by the defendant. The defendant, for a second defense, sets up by way of counterclaim the seizure of the logs by the plaintiff; and though the counterclaim may be a defective statement of the defendant's cause of action, in that it fails to aver an unlawful taking, the defect is cured, if the counterclaim can be maintained at all, by the reply, which, by way of aider, raises the question of the rightfulness of the seizure.
The well-established rule is that in such cases the injured party is entitled to recover of the trespasser the value of the timber where it was first severed from the land, and became a chattel (Bennett v.Thompson,
In Potter v. Madre, supra, Rodman, J., delivering the opinion of the Court, says: "The principle of equity (applied in that case) is supported by the analogy of the rule established in this State by the *61
decisions which hold that a vendee of land by a parol contract of sale, who takes possession and makes improvements, and is afterwards ejected by the vendor, may recover the value of his improvements. Albea v.Griffin,
It being settled in this State that the right to the specific chattel, which vests on severance from the land in the owner of the soil, remains in him till the species is changed, we are constrained to go further, though it may sometimes subject a mistaken trespasser to hardship, (92) and hold that the true owner is entitled to regain possession of a log cut and removed from his land either by recapture or by any other remedy provided by law, whatever additional value may have been imparted to it by transporting it to a better market or by any improvements in its condition short of an actual alteration of species. InWymouth v. R. R.,
It is familiar learning that a defendant can only maintain successfully a counterclaim when it is of such a nature that he could recover upon it in a separate suit brought against the plaintiff. The defendant could not recover therefore either in a distinct action for the taking of the logs or by way of counterclaim. When the plaintiff recaptured the logs she was guilty of no wrong, and the question of title to the property so rightfully taken was eliminated from all possible future controversy. Her remedy by act of the law remained as to so many of the logs as she had not regained possession of by her own act. After she had recaptured on lot, the property in them in their altered state and at the new situs revested in her with the absolute jus disponendi, as in the case of her other personal property. Nothing remained to be adjusted in the courts except her claim for damages for the taking of the other lot and the injury to the land, if any, incident to the removal of both lots. It was error, therefore, to instruct the jury that the enhanced value imparted by removal to the one lot of logs might be allowed the defendant as a counterclaim, so as to set off the damages assessed for injury to the land and for the value at the stump of the other lot, and the plaintiff is entitled to a
New trial.
Cited: Davis v. Wall,
(94)