Given v. Kelly

Mr. Justice Mercur delivered the opinion of the court, October 29th 1877. The right of a party to maintain trover depends on his ability to establish his right of possession against the defendant in the action. Where the defendant is a joint owner with him of a chattel, the right of each to the possession is equal, and therefore for the mere detention by one joint owner the action cannot be sustained. Nor can it be sustained against the vendor for a mere sale of a chattel in which he was a joint owner, for such a sale passes to the vendee the individual interest only of the vendor. This rule, however, should be restricted to cases in which the property remains in specie. Hence, where a hogshead of rum was held in joint ownership, and one of the owners had sold it, presumptively at retail, he was held liable to his co-tenant in trover. This was because he had practically made the liquor irrecoverable. It was substantially a destruction of the property: Wilson v. Gibbs, 3 Johns. 175. Where a joint owner destroys a chattel, trover will undoubtedly lie against him by his co-tenant. The question arises, what constitutes destruction in law ? The sale of the rum in the manner stated was held to be one form of destruction. That, however, is not the only mode of destroying a joint owner’s portion of the property. It was said in Agnew v. Johnson, 5 Harris 373, where one misuses the joint property by appropriating it to uses for which it was not designed, and refuses to apply it to the purposes [313] for -which, it was held by both, trover may be maintained. In the case now under consideration, the learned judge denied the right of the defendant in error to recover, unless a destruction of the property was proved. He charged substantially, that rendering the property wholly unfit for the use and purpose for which it was made, was destruction. In this he committed no error, if the evidence was sufficient to justify the submission of the fact to the jury. We think it was sufficient. • The parties had been jointly interested in an oil-well in Armstrong county, and were joint owners of all the machinery used in working the same. The machinery consisted in part of boiler, engine, pump, pipe, casing, tubing, ropes, belting, sucker-rods, swivels, elevator, tanks, &c. The evidence tended to show that the plaintiff in error tore up and removed from the well all the machinery. He sold part of the'tubing, and caused the remainder of tho machinery to be taken to Butler county, and applied the same to his own private use. Subsequently he sold the boiler as old iron. If he thus stripped the well of all its working power, removed dismembered portions of the machinery into an adjoining county, and appropriated portions of it to other purposes than those for which it had been designed and used by the joint owners, and caused the identity of other portions to be destroyed, it was manifestly such a misuser of the property as practically to work a destruction of the interest of the defendant in error. Judgment affirmed.