2 Watts 126 | Pa. | 1833
The opinion of the Court was delivered by
The principle which is to govern ihis case, was settled in Mather v. Trinity Church, 3 Serg. & Rawle 509; Baker v. Howel, 6 Serg. Rawle 476; and Brown v. Caldwell, 10 Serg. Rawle 114: in which it was determined, on principle and authority, that the right of property in a chaUd,_which h as become such by^y^ñ^YrQmTtEe7iüeEdI9¡]cEññptT^deterniinedSn,a transitory action by a trial of the title to the freehold, because the title to land might otherwise be tried out of the^ county. An action of trover or replevin for such a chattel therefore does not lie by a plaintiff out of possession. And this is entirely consistent with the admitted principle that a proprietor, in actual possession, may waive the trespass to the freehold, and go for the value of the property taken, because the action is maintainable on evidence of possessionjsloae. Independent of this technical inhibitory principle,'which however is decisive, it would provoke much useless litigation, and be attended with great practical mischief, if an owner out of possession were suffered to harass the actual occupant with an action for every blade of grass cut, or bushel of grain grown by him, instead of being compelled to resort to the action for mesne profits, after a recovery in ejectment, by which compensation for "the whole injury may be had at one operation. It may be safely affirmed then, that an action like the present cannot be maintained where the plaintiff canfmake title to the chattel only by making title to the land from which it was severed. But it would seem that actual possession, at the time of the severance, is sufficient evidence of property. Here, however, the property laid in the'declaration was taken by the defendant while he was yet in actual possession, though after a recovery of the mill, of which it was essentially a part; and the only thing like a question in the cause is, whether the naked recovery, which piccecled the
Judgment reversed.
