5 Ga. App. 344 | Ga. Ct. App. | 1908
(After stating the foregoing facts.)
In this State the essential allegations of a trover suit are, ownership of the chattel by the plaintiff, conversion by the defendant, and its value, and, if hire be claimed, the value of that. The present, petition sets up all these allegations, and prays a judgment for the value of the property. The measure of damages stated is not appropriate to an action of trespass quare clausum fregit, but is appropriate to a trover suit. In trover the plaintiff may elect in advance not to take the specific property, and may maintain the action for the damages laid as the value of the property. We therefore construe the present action to be a suit in trover.
If the plaintiff elects to sue in trover for the conversion of the trees after they became personalty by being severed, the measure of his damages is altogether different. The plaintiff is not permitted to show how much the land has been damaged. Coody v. Gress Lumber Co., 82 Ga. 794 (10 S. E. 218). Trover, as we employ it, looks to the recovery of the specific property, or its equivalent in money; it is the remedy by which the law restores the possession of the chattel to the owner, or, failing in this, gives damages in lieu of the possession. Until the property goes through such mutations that a change of title occurs, through what is called accession, the owner whose possession has been violated still owns it, and is entitled to have it restored to him.' This right to claim restitution or damages, based on the amount of the loss that results from a failure to restore, exists against the initial wrong-doer, and also against all others who have succeeded him in his tortious possession of or dominion over the property.
Crude articles wrongfully taken are often enhanced in value by improvements put upon them by the trespasser or by some person to whom he has sold them. In' such eases the owner’s right of restitution or damage is not wholly unqualified. The courts long ago saw that to allow the owner to recover a chattel in its improved condition from one who, innocently or inadvertently mistaking it for his own, had, after converting it, greatly increased its value by labor and expense placed upon it, was a violation of one of the law’s cardinal doctrines, — namely, that as against a defendant whose wrong was not accompanied by mala lides, or other cause
If the defendant is not the original trespasser, but has innocently bought from a trespasser, this same quasi-equitable principle entitles him to a set-off of such enhancement in value as he himself has added to the property. ' Whether he shall be allowed to set off also enhancements made by his vendor dejiends u¡3on the latter’s good faith; for it will be seen that while the defendant in purchasing the article in its improved condition presumably has included in the price, and thus has repaid the original trespasser, all sums by him expended, so as to get a right of subrogation, as it were, yet if the original trespasser, by reason of his bad faith, was not entitled to set-off, he had nothing in the nature of an equity which he could sell. In other words, if the seller’s possession was in bad faith the plaintiff, at the time the purchaser obtained the property, had as to it a good title and an unqualified right of restitution, subject to no counter-right of set-off; and, therefore, the purchaser’s set-off could only include that which had come about subsequently. We have not cited the great array of authority on which these propositions are based, but any one interested in the
Certain succinct results following • naturally from the propositions we have just stated were announced by the Supreme Court of the United States in the case of Wooden Ware Co. v. United States, 106 U. S. 432 (1 Sup. Ct. 398, 27 L. ed. 230), were quoted approvingly by the Supreme Court of this State in Parker v. Waycross Co., 81 Ga. 396 (8 S. E. 871), and have been inserted into our Code of 1895. They appear, in their original language, in the Civil Code, §3918, as follows: “Where plaintiff recovers for timber cut and carried away, the measure of damage is: 1. Where defendant is a wilful trespasser, the full value of the property at the time and place of demand or suit brought,without deduction for his labor or expense. 2. Where a defendant is an unintentional or innocent trespasser, or innocent vendee from such [unintentional] trespasser, the value at the time of conversion less the value he or his vendor added to the property. 3. Where defendant is a purchaser without notice from a wilful trespasser, the value at the time of such purchase.” Our purpose in tracing the origin of this code section is to show that, though it is in a sense statutory, it is nevertheless merely a declaration of a particular phase of certain well-recognized principles of general law. The statement of the law' as there announced, instead of being limited to the special. case of recoveries for timber cut and earned away, might just as properly have begun: “Where a plaintiff recovers for an article wrongfully .converted and enhanced in value by the wrong-doer or his successor in the wrongful possession, the measure of damages is,” etc.; for the principles of this code section have been, applied to cases of corn gathered and shelled, wheat reaped, thrashed, and housed, cotton picked, ginned, and baled, leather made into shoes, wool spun into cloth, grain made into whisky, grapes made into wine, coal dug from the earth, ores mined and milled, petroleum taken crudely and refined, and to similar cases ad libitum. The rule announced in the code section means simply this: Where appurtenances to realty have become severed, they become personalty and subject to conversion; if converted, the owner may •trace the crude article through its various mutations and claim it as
The code section mentioned above primarily relates only totrover suits. As codified, it immediately follows another section,, which is applicable by its terms to trover cases alone. The measure of damage we are discussing is wholly inapplicable to an action-of trespass quare clausum fregit. While the code section' quoted does incidentally and indirectly state the measure of the damages; recoverable in a suit for trespass to the personalty (a form of action usually employed where the conversion and the mutation of the property have proceeded to such a degree that the original title-has been destroyed, under the principles of the law governing accession), it is intended to state a principle applicable to trover cases,, and is not intended for trespass cases.
Judgment’affirmed.