| Pa. | Feb 20, 1882
delivered the opinion of the court, February 20th 1882.
These were two actions of replevin, brought to recover certain hay, oats and corn, after the same had been harvested, upon land of which the defendant was in the actual and adverse possession, both before, and at, the time the crops were gathered. The plaintiff had brought an action of ejectment against the-defendant to recover possession of the land, and this action was pending at the time the crops in question were severed from the freehold. The plaintiff claims that he is entitled to recover in this action under the provisions of the Act of May 15th 1871 P. L. 268. That Act is as follows :
“ In all actions of replevin now pending or hereafter brought to r’ecover timber, lumber, coal or other property severed from the*558 realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute: Provided, said plaintiff shows title in himself at the time of severance.”
The learned judge of the court below held that this Act was not intended to apply to the case of growing crops severed by the person in possession under claim of title to the land on which the crops were grown. In this opinion we concur. Prior to the passage of the act in question, it had always been held that replevin would not lie by one out of possession to recover against one in possession and claiming title, for any kind of chattels which had become such by severance from the freehold of which they had previously formed a part. Thus in Brown v. Caldwell, 10 S. & R. 114, it was held replevin does not lie by one not in the actual exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious, exclusive possession and occupation thereof, claiming the right for slates taken out of a quarry on the land.
In Powell v. Smith, 2 Watts 126" court="Pa." date_filed="1833-10-15" href="https://app.midpage.ai/document/powell-v-smith-6311182?utm_source=webapp" opinion_id="6311182">2 Watts 126, in the application of the same doctrine, we held that replevin would not lie to recover fixtures separated and removed from a mill: on p. 127, Gibson, C. J., said: “ The principle which is to govern this case was settled in Mather v. Trinity Church, 3 S. & R. 509; Baker v. Howell, 6 Id. 476; and Brown v. Caldwell, 10 Id. 114; in which it was determined, on principle and authority, that the right of property in a chattel which has become such by severance from the freehold can not be determined in 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 .... 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.” Other authorities are to the same point. The Act of 1871 has doubtless changed this rule, so far as it relates to the particular forms of property there mentioned. These are timber, lumber, coal and other property, severed from the realty. It is claimed that growing crops come within the designation “ other property,” and therefore that the Act includes them also. But a very slight consideration of the Act shows not only that they are not expressly mentioned, but that they are not necessarily implied,
They are of the same generic character witli the other kinds of property expressly mentioned. That is, they are a part of the realty itself, and wlien converted into personalty, it is by an act of severance such as works a conversion of timber, lumber and coal. Now growing crops are only ephemeral. They are produced, not by nature as a part of the land, but by the labor of man, combined with the operations of nature, and are never intended to become permanently affixed to the freehold, but to be removed from it at maturity. The very purpose of their cultivation is to make them personalty. Hence the spirit and meaning of the act in no sense requires that they should be considered in the same category with such constituent elements of the earth as timber, lumber and coal. In Allen’s Appeal, 32 P. F. Smith 302, the words of an Act giving a preference for wages to persons employed, “ in any works, mines, manufactory or other business, &c.” were construed to apply only to any other business ejusdem generis. The same rule of construction applied here would exclude growing crops as not being of the same kind or class with those expressly named in the Act. We consider that the purpose of the Act was to remedy a different kind of evil, which existed prior to its passage. Formerly, when one in possession cut down standing timber or severed and removed coal, slate, ores, or minerals from the realty, the only remedy of the true owner was by the action for mesne profits or by estrepement or other proceedings to stay waste. Put these were not adequate, as the tenant in possession could make way with and convert these articles, and, being insolvent, a verdict and judgment for damages or a more preventive order staying future acts, furnished no sufficient relief; and we aj)prebend it was the purpose of this Act to remedy this class of wrongs. These considerations are inapplicable, however, to the case of growing crops. They are generally the fruits of the labor of the tenant in possession, and it would be a most serious innovation upon the existing state of the law, as well as a great hardship upon the person in possession under claim of title, to subject him to a succession of actions for his various crops when harvested, and to the necessity of trying complicated and vexatious questions of title to land, in the determination of the ownership of his fruits, vegetables and crops. Such a construe
Judgment affirmed.