115 N.C. 85 | 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 Newbern in two lots, one of which lots were 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 defence, sets up by way of counter-claim, the seizure of the logs by the plaintiff, and though the counter-claim 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 counter-claim 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, 13 Ired., 146), together with adequate damage for any injury done to the land in removing it therefrom. As long as the timber taken was not
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 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, 2 Dev. & Bat. Eq., 9. So if one who has purchased land from another, not having title, enters and improves, believing his title good, and is ejected by the rightful owner, he is entitled to compensation. In both cases one who is morally innocent has confused his property with that of another, and he is held entitled to separate it in the only way it can be done, viz., by being allowed the value of his improvements in the raw material.” The Judge laid down correctly the rule as to the damage that the plaintiff was entitled to recover of the defendant for the original trespass the value of the logs when severed at the stump, and adequate damage for injury done to the land in removing them. Potter v. Madre, supra; 5 Am. & Eng. Enc., page 36; Ross v.
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 sub
New Trial.