Florence & Cripple Creek Railroad v. Radetsky

Mr. Justice GabbErt delivered the opinion of the court. Replevin will not lie against one not actually or constructively in possession of the property in controversy when the action is commenced—Bruce v. Horn, 11 Colo. App. 316; Rachofsky v. Benson, 19 Colo. App. 178; Wil [484] lis v. DeWitt, 3 S. Dak. 281; Cobbey on Replevin, section 64—unless prior thereto and subsequent to demand, for the possession, he has concealed, removed or disposed of it for the purpose of avoiding the writ and defrauding the plaintiff of his right to such property. Depriest v. McKinstrey, 38 Neb. 194; Cobbey on Replevin, section 66. The-case at bar does not come within this exception, as it appears without dispute that the wire was in the possession, or under the control, of either the constable or sheriff at the time plaintiff demanded possession, and when the action was commenced, and that such possession was surrendered in good faith. Counsel for plaintiff urge that the defendant cannot justify the taking of the wire from its possession for the reason that the proceedings and process under which it was taken were void; that the taking was a trespass, and it was, therefore, its duty to maintain its possession and re-take the wire, and having failed to do so, the constructive possession of the subject matter of controversy remained in the defendant, and the action can be maiintained. This question is not involved. Plaintiff knew of the claim of the constable, or sheriff, or both, to the wire, and also knew that they were in possession of it, and claiming the right to its possession, as against the railroad company, and it was, therefore, the duty of plaintiff to assert and protect his rights. If he had any remedy it was against the officials who seized the wire. See note to Jensen v. Eagle Ore Co., (47 Colo. 306), as reported in 33 L. R. A. (N. S.) 681. ■ The judgment of the district court is reversed and the cause remanded, with directions to dismiss at cost of plaintiff. Reversed and Remanded with Directions. Mr. Justice MussEr and Mr. Justice Hill concur.