Beatty v. Brown

SOMERYILLE, J.

— The principle settled in Cooper v. Watson, 73 Ala. 252 , is conclusive, in our opinion, against the plaintiff’s right of recovery in the present action. The suit there was one of detinue, brought by the owner of the freehold of certain lands, for timber which had been converted into chattels by the defendant, who, being in possession, had *269 severed trees from the freehold. The plaintiff had, at the time, no possession of the lands, actual or constructive, but the defendant was in occupancy of them, holding adversely. It was decided that the action could not be maintained, the court using the following language : “ The doctrine seems well settled, upon principle and authority, that if the owner of the land be not in the actual possession — if he can show title to things severed from it, only by showing title to the land — a personal action for the taking, conversion, or detention of such things, will not lie. If he have the possession at the time of the severance, the rule is different. But, if his possession is divested — if his right lie in entry, and the adverse possessor gathers a crop in the course of husbandry, or severs a tree or other thing from the land, the things severed are converted into chattels. But they do not become the property of the owner of the land ; he is out of possession, and has no right to the immediate possession of such things ; nor can he bring any action to recover them, until he regains possession.” The owner of land, out of possession, can not, in other words, be permitted to bring his title in dispute, in a personal or transitory action, against one who holds possession of such land adversely. Otherwise, an actual occupant, although tona fide claiming ownership in himself, might be harassed by a multiplicity of suits, for innumerable alleged trespasses, all of which should more properly be embraced in one action for mesne profits, after or during recovery in ejectment. This is not, and should not be allowable. — 1 Smith’s Lead. Cases (7th Amer. Ed.), 660; Brothers v. Hurdle, 10 Tred. (L.) 190 ; Powell v. Smith, 2 Watts (Penn.) 126; Cooper v. Watson, 73 Ala. 252 , supra.

The present action is for damages for destruction of trees, under the provisions of section 3551 of the Code. The title of the lands was in the plaintiff, but the defendant was in possession, holding them adversely, at the time the trees were cut and removed from the freehold. Under the principle above stated, the action would not lie, until the plaintiff had first recovered possession of the land by ejectment, or, at least, by way of mesne profits in such an action. The judgment of the court must be reversed, in view of these principles, and the cause remanded.