30 Minn. 119 | Minn. | 1883
Action for converting an undivided fourth of certain logs. It was tried by the court without a jury, and the following facts (in substance) found: The defendant and plaintiff and one Davis owned as tenants in common a certain quarter-section of land, the defendant owning an undivided three-fourths, and the other
The appeal from the order must be dismissed. It has been many times decided by this court that an appeal cannot be taken from an order or direction for judgment, but must be taken from the judgment when entered. The order refusing to modify the conclusion of law was, as was the conclusion itself, in the nature of an order or direction for judgment, and therefore not appealable.
On his appeal the defendant assumes that the action is under the statute, and can be maintained only if defendant appropriated more than three-fourths of the trees on the land, and insists that, inasmuch as it does not appear what proportion of the trees was taken by defendant, the case was not made out. But the action is not under the statute. That gives an action in the nature of assumpsit, (Kean v. Connelly, 25 Minn. 222,) while this action is for conversion. The statute authorizes one cotenant to bring an action against another only for receiving more than his just proportion of the rents or profits. Trees cut and removed from the land cannot be regarded as rents or profits, within the meaning of the statute, nor can the money received upon a sale of them. The court held in Kean v. Connelly that grass cut from the land does not come within the statute. The case depends, therefore, not on the statute, but on the principles of the common law.
The trees, when severed, became personal property, and, unless the severing them vested the exclusive title in defendant, they be
The wrong-doer can acquire no rights by his wrongful act of severing part of the realty, and so changing its character from real to personal property. Standing trees are, ordinarily at least, to be regarded, as between the cotenants, as part of the real estate, and severing and removing them, without consent of other cotenants, a destruction, to that extent, of the realty. After the severance they are the property of the cotenants, and, by a conversion of them, the co-tenant converting them becomes liable to his cotenants, as in case of other personal property.
Judgment affirmed.
Mitchell, J., because of illness, took no part in this case.