76 A. 194 | N.H. | 1911
Lead Opinion
The plaintiff claims under one John Lovejoy who, being then the owner of the real estate, on December 20, 1892, by an instrument in writing under seal, sold to him "all the timber, wood, and growth of every description on the Osgood farm." The writing contained the following stipulation: "And I give him until January 1st, 1900, A. D., to get the lot off in." November 11, 1898, Lovejoy sold the farm to the defendant Finerty, "reserving to W. E. Peirce all the wood and timber on the above described premises, with the right to cut and remove the same at any time before January 1, 1900." December 27, 1902, Finerty conveyed the premises to the defendant Paradis, by warranty deed without reservation or reference to any right of Peirce. Paradis was, however, fully informed of the right claimed by Peirce. In the spring of 1899, Peirce learned that Finerty had purchased the lot and tried to obtain the right to keep the timber on the lot by paying $25 a year. Peirce understood he could do this, but Finerty did not so agree. January 29, 1901, Peirce sent Finerty a check for one year's rent for extension of time for removing the timber. Finerty returned the check, but offered to extend the time for $150 per year dating from January 1, 1900, payable for subsequent years in advance. Peirce did not accept this offer and could not after this have reasonably understood that the growth remained by permission or consent of the landowner. Peirce made no reasonable effort to remove the timber, although knowing it remained without right. With reasonable effort he could have removed the property as early as the spring of 1902, and ought to have done so. March 31, 1903, upon notice of Peirce's claim, Paradis informed him that he had a warranty deed of the premises and should not permit Peirce to enter upon or cut the lot until after the dispute was settled. In the winter of 1904, Paradis cut wood and timber on the lot. This bill was filed May 3, 1904.
The substance of the foregoing is that Peirce, the owner of the growth upon the land, did not enter to remove the same within the time limited in the conveyance of the same to him, nor within a reasonable time thereafter, and that after this the owner of the land refused to permit him to enter and cut the growth. Such permission has been granted him by the decree excepted to. The main question argued was whether Peirce now has title to any of *40 the growth thereon. The defendants claim that Peirce's title was forfeited by his failure to enter and remove the same within the time limited in the conveyance or in a reasonable time thereafter, and by his conduct, which is found to have been "willful and defiant" in permitting it to remain wrongfully upon the land of another.
This question has been elaborately argued with great ability and thoroughness. If the question were an open one, the argument for the defendants would be of great assistance and might prevail; but all the grounds now urged are equally opposed to the conclusion in Hoit v. Stratton Mills,
Hoit v. Stratton Mills,
In the present case, the parties did not leave to the judgment of a jury the length of time within which the grantee of the timber should have the right to enter and take it, but expressly limited such entry to January 1, 1900. If, therefore, upon the rule of Hoit v. Stratton Mills, it must be inferred that the parties understood and agreed that Peirce's property in the growth would not be lost by his failure to remove it before January 1, 1900, it follows from the same case that they must have understood and agreed that Peirce after that date would have no right to enter to cut and remove the same. "If the time for removing trees or other things from the vendor's land is expressly fixed in the contract of sale, the *42
purchaser is a trespasser in entering after that time to remove them." Hoit v. Stratton Mills,
But the holding that the value of the trees belonging to one who enters without right and takes them is not an element in the landowner's damages for the entry furnishes no basis for a claim of right to enter and take them. Inability to maintain trespass de bonis will not justify trespass quare clausum. That the owner of personal property wrongfully upon the land of another is a trespasser if he enters to take it without an express or implied license to do so — in other words, has no right to enter — has been repeatedly decided in other cases. Dame v. Dame,
The decree of the court therefore attempts to give to Peirce a right in Paradis' land which he does not possess and for which no legal foundation exists. As the plaintiff has no legal right to enter upon Paradis' land, he cannot recover damages if permission to do so is refused him. Paradis' refusal to permit him to enter and cut and *43
remove the trees would not be a conversion of the trees by Paradis (Town v. Hazen,
It has been suggested that the bill originally asked for relief in another form; but as the request has been abandoned, the questions of what relief the plaintiff might have in equity or whether he might maintain trover upon the facts stated, as well as what course the landowner might pursue to rid his land of the incumbrance [encumbrance] without subjecting himself to liability and what remedy he has for the wrong done him by the plaintiff, are questions not now before the court. The conclusion that the court is without authority to license the plaintiff to trespass upon the defendant's close is fatal to the decree permitting such action.
Exception sustained: decree set aside.
All concurred.
The foregoing opinion was filed May 3, 1910. The defendant Paradis subsequently tendered to the plaintiff the sum found to be the value of the latter's trees, less the amount owed to Paradis for the occupancy of his land, as a full satisfaction of the plaintiff's *44 claim to the trees. The plaintiff refused to accept the tender, and thereupon the defendant filed a motion for an order that the land and the growth thereon be freed from the plaintiff's claim, upon payment of the sum tendered. The plaintiff commenced a replevin suit for the trees claimed by him, and also filed a motion for the appointment of a receiver who should cut the entire growth and divide the proceeds.
The whole matter came on for hearing, and it was found that the plaintiff's claim is a cloud upon the defendant's title, preventing him from obtaining a fair price for his timber or land, and that the defendant's title might prevent the plaintiff from obtaining a fair price for the trees, which he does not desire to sell.
Subject to exceptions, the court pro forma denied both motions and ruled that replevin could not be maintained. It was further found that "the granting or the denial of any of the foregoing motions, or of any relief at law or in equity, so far as they rest on the discretion of the trial court on the facts found, depend on the power of the court in the premises and on what remedies at law or in equity are open to the parties." Transferred from the May term, 1910, of the superior court by Chamberlin, J.
Addendum
The case comes back to this court for instructions as to the law governing the rights of the parties, the presiding justice finding it impracticable to determine what is the reasonable course to be pursued until those rights are more fully defined. The plaintiff seeks to replevy the trees, or to have the entire growth removed by a receiver. The defendant does not wish to have his trees cut at present and offers money compensation for the plaintiff's rights.
Replevin will not lie. By the common law of this state, the remedy was available only in cases where there was wrongful taking. Mere wrongful detention was not sufficient. In the latter case detinue was the appropriate remedy, the distinction being the same as that between trespass and trover. Dame v. Dame,
"If there is a reasonable doubt of the demandant's right to the possession of the property, a refusal to deliver it until a reasonable opportunity is had to ascertain his right is not sufficient evidence of a conversion. In such a case the law does not require one to act on the instant and either comply with or deny the demand at his peril. . . . It is immaterial on what particular point material to the justice of the demand the doubt exists. It may arise upon the question of lien by the holder, or the amount of the lien, as well as upon the identity or authority of the person making the demand. Where the facts are undisputed and the doubt is upon a question of law, a refusal to deliver until the advice of counsel can be obtained may be considered as the result of a reasonable hesitation in a doubtful matter." Hett v. Railroad,
One question in this case (as yet undecided) is whether the defendant may not now be entitled to have the plaintiff's property remain upon the land. It can hardly be claimed that the question is not at least a doubtful one, upon which the defendant may reasonably hesitate before becoming a wrongdoer by refusing to comply with the plaintiff's demands. The question of the right to take or receive this property is now in issue in the present proceeding. The plaintiff attempts to replevy the property while this suit in equity is pending, and thereby render nugatory any adverse decree which may hereafter be entered. The same reasoning which forbids a re-replevin while the first suit is pending applies here. "The title to the property, or the right of possession, was the only question in dispute, and it was the same question in both cases. Being impleaded in the first case, the plaintiff could try his right there, but could not duplicate or multiply the same proceeding for vexatious or other purposes. . . . Reason, authority, and public policy forbid such a proceeding, and require that litigation, once commenced, shall proceed to its end without delay or vexation." Bonney v. Smith,
There is a further fundamental objection to the maintenance of the suit. Replevin is a strictly possessory action. It lies only in behalf of one entitled to the immediate possession of the property. *48
Mitchell v. Roberts,
The former decision is attacked upon the ground that it leaves the plaintiff holding title to the trees, but denied the right to get the possession necessary to make his title of any value. The position taken is not entirely correct on either point. While the plaintiff's title is recognized, it is no longer a complete one. By his own act he has incumbered [encumbered] his property. It is now subject to certain rights of the defendant. And though the plaintiff cannot enter to recover the trees, it does not follow that he is without remedy to compel the defendant to do what is reasonable in the matter of restoring to the plaintiff the trees or the value of the plaintiff's interest therein.
The important factor in the situation is that the right of ridding the defendant's land of the plaintiff's property or title has passed beyond the control of the plaintiff, and is now vested in the defendant. It is the defendant's right (viewed from his standpoint) and his duty (viewed from the plaintiff's position) to do what is reasonable to terminate the present condition of the property of the contending parties. Whether, in order to protect himself from future litigation, the landowner might in the first instance maintain a bill to obtain a decree directing his course in the premises, it is not now necessary to consider. He has been brought into equity by the action of the tree-owner, and a final disposition of the controversy will be made in this proceeding. There is at present no ground for the appointment of a receiver. If, when the decree is entered, the landowner refuses or neglects to perform the acts found to be reasonably necessary to be done by him, it may be necessary that they be done by an officer of the court. If so done, they would still be his acts in contemplation of law. It cannot be assumed in advance that he will so refuse to do his duty; and until he does, there is no ground for usurping his privilege.
In ruling pro forma against the defendant's motion for a decree that the plaintiff's claim be satisfied by a money payment, the superior court suggests that if such decree were made it would "compel the plaintiff to sell his property." The presiding justice expresses his doubt of the power so to do. If this would be the effect of the order, the doubt expressed would be well founded and *49
would be supported by the reasoning of the former opinion in this case. But the situation may be such that the tree-owner has already lost his title to the specific property. There is no case in this state deciding that he cannot lose it. All that is determined by the prior cases is that the mere leaving of the trees upon the land, so that they wrongfully subsist upon the landowner's estate, does not transfer the title to the trees to the landowner. Hoit v. Stratton Mills,
A final order cannot now be made because the facts are not yet *50 found. When it has been ascertained what the rule of reasonable conduct under the circumstances requires of the defendant, the order to be made will follow as a legal conclusion. The relief to be granted is discretionary only in that the finding of the facts as to reasonableness rests with the justice presiding at the trial.
Case discharged.
All concurred.