McGill v. Holman

SOMERVILLE, J. It is a general rule of law that the owner of personal property may take possession of it wherever he finds it, provided he commits no trespass or breach of the peace and uses no force or threats in its recovery or recaption. Folmar v. Copeland, 57 Ala. 588; Stowers Furniture Co. v. Brake, 158 Ala. 639, 646, 48 South. 89; Brown v. Floyd, 163 Ala. 317, 50 South. 995; Milner v. Milner, 101 Ala. 599, 14 South. 373. But the authorities are practically unanimous in holding that, where a chattel is placed or left, by the volition or fault of its owner, on the land'of another, without the consent of the latter, the chattel owner has no right of entry for the purpose of recaption. 38 Cyc. 3056 (II), 1057, and cases cited in the notes. The timber for the conversion of which plaintiff here sues was purchased by him as standing timber under a written contract with defendant, who owned both the timber and the land on which.it stood, by the terms of which plaintiff was required to both cut and remove the timber within a designated period, but failed to remove it before the expiration of the period, and afterwards asked defendant’s permission to enter upon the land for that purpose. Defendant refused permission, and forbade any entry by plaintiff except for the purpose of removing certain sawmill machinery owned by plaintiff. The theory upon which plaintiff seeks to recover in this action of trover is that by forbidding, and thereby preventing, plaintiff’s entrance upon the land, defendant denied to plaintiff the possession and use of his property to which he was entitled, and that this was, in legal effect, a tortious conversion of plaintiff’s property. “A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.” 2 Greenleaf on Ev. § 642. This definition is quoted with approval in Conner v. Allen, 33 Ala. 515, and has been approved many times in later cases. Davis v. Hurt, 114 Ala. 146, 21 South. 468; King v. Franklin, 132 Ala. 559, 31 South. 467. In denying plaintiff’s right to enter, and in forbidding his entrance upon defendant’s land, defendant was clearly within the law, and we know of no principle upon which it can be asserted that in thus exercising his own undoubted right to exclude plaintiff from his premises he could be guilty of a tortious act merely because, incidentally, plaintiff was disabled from taking possession of personal property which, on settled rules of law, and by the very terms of the contract by which he acquired it, he had no right to remove. The status of this timber is, it must be conceded, rather anomalous under our decisions, some of which are referred to in the dissenting opinion of Mr. Justice .SAYRE. See, also, Long v. Nadawah Lbr. Co., 202 Ala. 523, 81 South. 25. But plaintiff’s loss of the right to take his timber, thus left on defendant’s land without the latter’s consent, results from the terms of the contract which he made and the restrictions which it expressly imposed upon him. To say that defendant’s conduct here amounted to a tortious interference with or denial of plaintiff’s property rights is to utterly repudiate the agreement of the parties, since it requires the vendor either to extend the time for the removal of the timber, or to himself transport and deliver it to the vendee, upon the latter’s demand, after the stipulated time has expired, neither of which his contract obligated him to do. It is true that the cases hold that, where the plaintiff has a right to retake his chattel property, if he can do so peacefully, but peaceful recaption is prevented by the opposition of the owner of the premises whereon the property is found, the plaintiff may recover of the latter as for a wrongful conversion or an unlawful detention. But that principle cannot be applied here, because, as already shown, plaintiff had no right to enter and take the timber, peacefully or otherwise. As declared in Mt. Vernon Lbr. Co. v. Shepard, 180 Ala. 148, 156, 60 South. 825, 828, for the plaintiff “to now, under any sanction, enter for the removal thereof would be a trespass—a wrong.” For the defendant to forbid such a wrong to his own property cannot, Therefore, be wrongful; and to thus characterize the prohibition of a clear wrong as being itself wrongful involves, as it seems to us, an absolute contradiction of terms. ■ Nor can the fact that defendant anticipated or even intended that plaintiff’s recovery and enjoyment of his property thus marooned would or should be prevented by defendant’s assertion of his own rights in the premises render that assertion wrongful, whatever its collateral consequences might be to plaintiff. *11 There being no evidence of any tortious interference by defendant with the property rights of plaintiff in the timber—no act which can be in law regarded as a conversion—the trial judge should have given for defendant the general affimative charge, as requested, and its refusal must work a reversal of the judgment. Reversed and remanded. McOLELLAN, GARDNER, and THOMAS, JJ., concur.