This ease comes before this court upon a bill of exceptions, upon which two questions arise. The first is, did Jonathan Seely own the poles, at the time he entered upon plaintiff’s land to take them away ? The other is, if he did own them, had he a legal right to go upon the plaintiff’s land for the purpose of removing them, without the plaintiff’s permission ?
The first is a mixed question of law and fact, and, under proper direction from the court, must be settled by the jury. The court instructed the jury, “ that if they found that a ‘ contract was made between the said Bly and the said Birge, ‘ in the winter of 1838, though it was by parol, whereby Bly ‘ sold to Birge the pine timber, suitable for sawing, then ‘standing on the 114 acres, and allowed him three years to * get it off; and that Birge had entered upon the execution ‘ of the contract on his part, and proceeded to cut the pine ‘ timber thus standing, and the poles in question,.— not only ‘ the pine timber when cut, but the poles, also, would become ‘ the personal property of Birge, although they should find ‘ that it was the understanding of Bly and Birge, at the time ‘ of making the contract, that they should be cut for boom- ‘ age poles, as was testified to be the course or custom of ‘ such business, by said Bly; — or, in case it was not so un- ‘ derstood at the time said contract was made, if they found ‘ they were cut by the subsequent assent and advice of Bly, ‘ and before his contract with Yale, by said Birge, for the ‘ purpose of being used for boom poles, that then Birge ‘ would not be divested of his ownership in such poles, ‘ though from any cause he should conclude not to use them ‘ for boom poles; and that Birge would have the right of ‘ ingress and regress, upon said premises, for the term of ‘ three years, in pursuance of such contract, to get off his ‘ property ; —and that, it being admitted, on trial, that said ‘ poles were sold by Birge to Jonathan Seely, he would have ‘ the same right of entry, to take off the poles, as Birge him- ‘ self had.” The inquiry upon this point is directed to the charge of the court; and if the charge was correct, the finding of the jury settles this part of the case. When Birge had cut these poles, pursuant to an understanding of Bly that he should and might cut them, he had acquired an in
It is further contended in argument that standing trees are a part of the soil; and that, although these poles were not standing trees at the time, still, being upon the land of the original owner, they are to be treated as if they had not been cut, and had passed with the land to the plaintiff. The unsoundness of this argument will be apparent, when we exam'ine to see what it is that constitutes an article of property, personal in its character, when, under other circumstances, it savors of the realty. The character of property that is not actually attached to the soil, depends upon the situation in which it is, and the use to which it is put. The same material, if used for one purpose, becomes a part of the realty ; but if used for another purpose, it is personal estate. These poles, lying in a pile, are no more a part of the soil upon which they rest, and are no more attached to it by any use to which they were designed, than boards lying in a mill yard. They, both, were once attached to the soil; but, having been severed and removed, the character of the property is changed. Buildings are, ordinarily, attached to the soil upon which they are erected, permanent in their location, and their use and the land upon which they stand is identical; and they are, therefore, regarded as real estate; but the materials of which they are composed, before being incorporated into the building, were personal property. And the same may be said of fences. But the cases referred to in Massachusetts and N. York seem to suppose that even
These poles, being personal property, would no more pass with the land than any other article of personal property that should happen to be upon it. And, being the property of Birge, he could sell them, and convey as good a title as he himself had. And the case finds that Birge did sell them to Jonathan Seely, one of the defendants.
This, then, brings us to the consideration of the other question : namely, had Jonathan Seely a right to enter upon the plaintiff’s premises to take away these poles ? We have already seen that Birge was the lawful owner of the poles, and sold them to the defendant, Jonathan Seely ; so that, whatever right Birge had to take them away passed to Seely, who, in that respect, stood in the same relation to plaintiff that Birge did to Bly. In relation to this right, I am aware that there is some apparent conflict of authority; but it is believed that it is more apparent than real.
It is laid down in Swift’s Digest that “ a man may enter 1 upon the land of another to take away his tree that has ‘ fallen upon his land.” “ He may go upon the land of an-1 other to cut, and carry away, trees which he has bought, or ‘ corn to which he has a right; for, whenever the law grants ‘ a right, it grants whatever is necessary for the enjoyment ‘ of it.” If the law gives the right to a man to do a certain act, it would be a solecism to say that in doing that act he would be a trespasser. But it is said that the plaintiff" forbid the defendants’ going upon his land. But if the defendants had a right to go upon plaintiff’s land, what right had the plaintiff to hinder or forbid them ? These are rights which are opposed to each other, and both cannot exist at the same time. But it is insisted that the party claiming this right is entitled to the enjoyment of it only when it can be done in a “ peaceable manner.” This is a qualification that is sometimes affixed to the right of recapture and reprisal, and applies to the regaining of personal property that has been wrongfully taken or withheld : and the law recognizes the right only with that qualification. But it is not so with regard to a right to enter upon another’s land. If it is my right, the law will protect me in the enjoyment of it, ■ — and the person who attempts to hinder or obstruct me is the
We think all these principles apply to this case. When Bly sold the timber to Birge, and permitted him to cut the poles, he at the same time gave him authority and license to take them away. When Birge, by such permission, had cut the poles, they became his personal property, and he acquired a perfect right to enter upon the land and take them away. This right was not confined to the person of Birge; he might send his servant to take them, or he might sell them, and the right would pass, with the property, to the purchaser. Jonathan Seely, then, being the purchaser of this property, became invested with the right to take it away. The plaintiff, when he took possession of the land, took it subject to this right, which was both prior and paramount to the plaintiff’s title to the land, and which the plaintiff could not revoke or impair. I apprehend this principle was recognized in the case of Goodrich v. Hathaway, 1 Vt. R. 485. In that case, the plaintiff was permitted to maintain his action of quare clausum fregit against the defendant for cutting and carrying away a pine tree standing upon the land of one Hawkins, which the plaintiff had bought; and the only interest Goodrich had in the land was the right tc enter upon it, and take away this tree. It would lie r strange kind of legal logic to say that he could maintain trespass against a third person for going upon that land, if hf could not insist upon the right to go upon it himself. Bu this doctrine is not peculiar to this case. The same doctrine is laid down in 1 Swift’s Dig. 512, and' other elementary writers.
These poles being the property of Jonathan Seely, and he. having the right, by himself and his servants', to entér upon the
The case of Richardson v. Anthony, 12 Vt. R. 273, is very properly relied upon as authority. That is a case, in which the defendant was sued for going upon the plaintiff’s land, to reclaim his property, — -and the Chief Judge, in delivering the opinion of the court, recognizes the doctrine laid down in Hammond’s Nisi Prius, 153, “ that the owner of goods and chattels has authority, by law, to enter the land of another, upon which they are placed, and remove them, provided they are there without his default.” The authorities seem to make something out of the manner in which the property comes to be upon the premises of another,— knd, perhaps, veryjustly — but the current of the authorities, irecognize the right of the owner of personal chattels, to go upon the land of another to obtain them, when they are there by permission of the owner of the land. In the case of Chapman v. Thumblethorp, Cro. Eliz. 329, the court held “ that when the defendant’s beasts are taken from him by wrong, and are not out of his possession by his own consent, he may justify the taking of them, wherever he can find them.”
In Taylor v. Waters, 2 C. L. R. 140; and Wood v. Manley, 39 C. L. R. 19, the same principles are recognized which govern this case. The notion that has obtained in connexion with the subject, was, probably, derived from the old English statute, against forcible entry and detainer, from which most of the modern statutes, on that subject, have been taken ; and it is believed that no civil action has been sustained, even under those statutes, where the person, making the ftírcíble entry, had the right to the possession.
Benedict v. Benedict, 5 Day. 464, was an action of disseisin, and the principles discussed are not very analogous to the case ; and the same may be said of the case, Heermance v. Vernoy, 6 Johns, 5. The right of entering upon the land of another was very little discussed. No justification was pleaded, and the case finally turned upon the rejection of testimony.
In the case of Blake v. Jenner, 14 Johns. 406, the case turned upon another point, — although the court intimated that the act complained of, would be a trespass ; but the main point was very little gone into.
This disposes of the two principal points in the case; and, according to the view we have taken of it, all the plaintiff
The plaintiff complains of the charge of the court, in relation to Jonathan Seely and Kenworthy; but it is of little importance, further than it affects the cost, whether the-judgment is against all the defendants, or only against one, so long as he has recovered a judgment against the one, from whom he received all the actual injury. The principal ground of complaint is, that the court ventured an expression of opinion in relation to the proof; but this cannot be a sufficient reason for granting a new trial, so long as the court directed the jury to find the fact, whether Jonathan Seely and Kenworthy were aiding and abetting the trespass. The jury were directed to find the fact, from the evidence in the case, and being so directed, we are not to presume, that they disregarded their oaths, to follow what they imagined to be the opinion of the court, when that opinion conflicted with their own judgment of the weight of evidence.
The plaintiff also objects to the charge of the court in relation to the excess of .force, that the jury might find to have been used. The court told the jury, “that John Seely e would be justified in using sufficient force to remove the ‘ obstructions, and protect his horses from violence, and ‘ no more, — and that if he went beyond that, he would be ‘ guilty under the 4th count.” Under that charge, the jury found John Seely guilty, and assessed the damage, as it was their duty to do ; and the amount was a matter resting entirely in their discretion. This direction of the court we regard as being unobjectionable, and was all that the plaintiff had a right to claim. But that part of which the plaintiff complains is the following: — The court told the jury that, “ courts and juries cannot be precise in marking the precise limits or boundaries of such force.” But for this we do not see any cause for granting a new trial, even if it was not correct, because it did not induce a wrong verdict; for, notwithstanding the charge, he obtained such a verdict as he sought. Upon the whole we are satisfied with the ruling and charge of the county court, upon all the points reserved, and with the result of the trial; and the judgment of that court is affirmed.