93 So. 848 | Ala. | 1922
Lead Opinion
It is a general rule of law that the owner of personal property may take possession of it wherever he finds it, provided he commits no trespass or breach of the peace and uses no force or threats in its recovery or recaption. Folmar v. Copeland,
But the authorities are practically unanimous in holding that, where a chattel is placed or left, by the volition or fault of its owner, on the land of another, without the consent of the latter, the chattel owner has no right of entry for the purpose of recaption. 38 Cyc. 1056 (II), 1057, and cases cited in the notes.
The timber for the conversion of which plaintiff here sues was purchased by him as standing timber under a written contract with defendant, who owned both the timber and the land on which it stood, by the terms of which plaintiff was required to both cut and remove the timber within a designated period, but failed to remove it before the expiration of the period, and afterwards asked defendant's permission to enter upon the land for that purpose. Defendant refused permission, and forbade any entry by plaintiff except for the purpose of removing certain sawmill machinery owned by plaintiff.
The theory upon which plaintiff seeks to recover in this action of trover is that by forbidding, and thereby preventing, plaintiff's entrance upon the land, defendant denied to plaintiff the possession and use of his property to which he was entitled, and that this was, in legal effect, a tortious conversion of plaintiff's property.
"A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own." 2 Greenleaf on Ev. § 642. This definition is quoted with approval in Conner v. Allen,
In denying plaintiff's right to enter, and in forbidding his entrance upon defendant's land, defendant was clearly within the law, and we know of no principle upon which it can be asserted that in thus exercising his own undoubted right to exclude plaintiff from his premises he could be guilty of a tortious act merely because, incidentally, plaintiff was disabled from taking possession of personal property which, on settled rules of law, and by the very terms of the contract by which he acquired it, he had no right to remove.
The status of this timber is, it must be conceded, rather anomalous under our decisions, some of which are referred to in the dissenting opinion of Mr. Justice SAYRE. See, also, Long v. Nadawah Lbr. Co.,
But plaintiff's loss of the right to take his timber, thus left on defendant's land without the latter's consent, results from the terms of the contract which he made and the restrictions which it expressly imposed upon him.
To say that defendant's conduct here amounted to a tortious interference with or denial of plaintiff's property rights is to utterly repudiate the agreement of the parties, since it requires the vendor either to extend the time for the removal of the timber, or to himself transport and deliver it to the vendee, upon the latter's demand, after the stipulated time has expired, neither of which his contract obligated him to do.
It is true that the cases hold that, where the plaintiff has a right to retake his chattel property, if he can do so peacefully, but peaceful recaption is prevented by the opposition of the owner of the premises whereon the property is found, the plaintiff may recover of the latter as for a wrongful conversion or an unlawful detention. But that principle cannot be applied here, because, as already shown, plaintiff had no right to enter and take the timber, peacefully or otherwise.
As declared in Mt. Vernon Lbr. Co. v. Shepard,
Nor can the fact that defendant anticipated or even intended that plaintiff's recovery and enjoyment of his property thus marooned would or should be prevented by defendant's assertion of his own rights in the premises render that assertion wrongful, whatever its collateral consequences might be to plaintiff. *11
There being no evidence of any tortious interference by defendant with the property rights of plaintiff in the timber — no act which can be in law regarded as a conversion — the trial judge should have given for defendant the general affirmative charge, as requested, and its refusal must work a reversal of the judgment.
Reversed and remanded.
McCLELLAN, GARDNER, and THOMAS, JJ., concur.
Dissenting Opinion
By deed defendant, McGill, conveyed to plaintiff, Holman, certain pine timber standing on a tract of land described in the deed. One covenant of the deed was, in substance, that the timber was to be cut and removed prior to July 1, 1919. Some trees had been cut and were lying upon the ground when the time for removal expired, and shortly afterwards plaintiff proposed to go upon the land for the purpose of removing them, but defendant forbade the plaintiff to do so, warning him to stay off the land. There can be no doubt that defendant's purpose was to prevent plaintiff getting the logs; but with the logs themselves, as they lay in the woods, defendant interfered not at all. Plaintiff sued in trover and had judgment. Defendant appeals.
Since the decision in Zimmerman Mfg. Co. v. Daffin,
Here the trees in controversy were cut prior to the expiration of the time limited for their cutting and removal. According to the doctrine of the Zimmerman Case, they became and remained the personal property of plaintiff. Their legal status did not differ from any other personal property upon the premises of another. In general, the owner of property may take possession of it wherever he finds it. But he must commit no trespass, provoke no breach of the peace; and if he cannot regain possession peaceably — in this case the possession plaintiff had during the life of the contract — he must appeal to the courts of the country. Folmar v. Copeland,
I would get away from an impossible state of the adjudicated law. I would hold that the court committed no error in submitting this cause to the jury. In this view ANDERSON, C. J., and MILLER, J., concur.
