65 Mass. 11 | Mass. | 1853
It is certainly true that for an injury to his real
It is next objected that the plaintiffs, by bringing this action of trover, and waiving their action of trespass quare clausum, have adopted and sanctioned the original act of trespass, and therefore cannot maintain this action against one who purchased the earth bond fide of the trespassers. We do not perceive that any such waiver appears. It is true that the plaintiffs have not elected to institute an action of trespass quare clausum against the original wrong doers. But as regards these defendants, who have the property of the plaintiffs without right, nothing is waived; they did not commit any trespass upon the plaintiffs’ land, and no action could have been maintained against these defendants therefor. Theii
It is further contended that if the defendants were bond fide purchasers, and without notice of the trespass, the plaintiffs must prove a demand on the defendants and a refusal by them to redeliver before the commencement of the action. The court ruled upon this point, if such purchase was made in the manner above stated, yet if they received the earth from the trespassers by a purchase for their own use, and directed that the same be deposited on the filling ground, they would be liable without any such demand and refusal. This ruling may be fully supported upon the ground of a conversion in fact of the earth, and the impracticability of a redelivery of the earth after it had become thus intermingled with the soil of the land on which it was placed, and had b 3Come a part of the solid earth. Whenever there has been an actual conversion, or whenever the property has been thus appropriated, it is evidence of a conversion which supersedes the necessity of any demand. This view is to us a satisfactory answer to the objection here urged, that there was no proof of a demand. But upon other grounds, under the late decision of this court in the case of Stanley v. Gaylord, 1 Cush. 536, a case where the whole subject was much considered, and where the court came to the result that a bond fide purchase from one who had the actual possession of the property, but without any right to retain possession as against the lawful owner, and actual taking the same under such purchase into the custody and control of the
Exceptions overruled.