Fulton v. Norton

Appleton, C. J. This is an action of trespass de bonis asportatis, for taking and carrying away thirty-five tons of ballast stones from the bank of Cathance river. The plaintiff purchased the stones of John Patten, the then owner of the soil, paid him for the same, and removed them from the walls and fields of his farm and piled them by the shore of Cathance river, but on said farm. The defendant claiming title under John Hall, the grantee of Patten, by a deed subsequent to the sale and removal of the stones [412] before described, by tbe advice of Hall, who was then the owner of the farm upon which they were lying, took and carried away the stones, for which this action is brought. The presiding judge instructed the jury that “if the stones had been sold and delivered by the then owner of the land to the plaintiff, and he had taken and removed them to another place in pursuance of that purchase by him, they were severed from the soil and became his personal property, and he would be entitled to recover, if they were taken and carried away wrongfully (that is, without his consent) by the defendant.” The instruction given was correct. The plaintiff had purchased and paid for the stones and removed them. He had had delivery of them from the owner of the soil. It was the legal result of severance, sale and removal, that they became the personal property of the plaintiff. As such the defendant converted them to his own use, and is liable for such conversion. Giles v. Simonds, 15 Gray, 441; Drake v. Wills, 11 Allen, 141. Exceptions overruled. Walton, Dickerson, Barrows, Danforth and Libbey, JJ., concurred.