Schmidt v. Vogt

By the Court, Kelly, C. J.: The position taken by the appellant is that Eoley had no right to cut the wood in controversy on the land which he [346] purchased from the board of school land commissioners until he had fully paid for it, and that, having done so, and severed it from the realty, it was and still remained the property of the state. That when Schuster bought the land from the state he acquired its right and title to the wood also, and that when Schuster sold and conveyed the land to appellant he became the owner of the wood as well as the land itself. ¥e do not consider this position to be correct, but conceding for the present that it is, and that Foley was not the owner of the wood when,cut and piled up, it does not follow that when the state conveyed the land to Schuster it transferred to him the wood that was upon the land. In the case of Wincher v. Shrewsbury, 2 Scam. 3 Ill. 283, it appears that the plaintiff went upon a tract of land belonging to the United States and made a quantity of rails from timber trees on the land. The rails were lying in piles on the land when the defendant entered and purchased it from the United States. He then forbade the plaintiff from taking the rails off his land, and hauled them away and converted them to his own use without the consent of the plaintiff. In an action to recover the value of the rails, Chief Justice Wilson, delivering the opinion of the court, said: “At the time the trespass was committed by the plaintiff, the land, and consequently the timber growing on it, of which the rails were made, belonged to the government. The cutting of the timber was, therefore, an injury and a trespass against the government, and it had a legal remedy. Therefore the defendant had neither a right of property nor a right of action at the time of the plaintiff’s trespass in making the rails. To what, then, did he acquire title by a subsequent purchase of the land ? Certainly not to a right of action for a previous trespass; nor to the timber which had previously been severed from the land and converted into rails, farming utensils, or anything else. A certificate of purchase or patent vests in the patentee a title to the land, and, generally, all that is growing on or is, in contemplation of law, attached to the land, as houses, fences, growing timber, etc., and, it is said, fallen timber, [347] passes with the land. But that which has been severed from the land, and by the art and labor of man converted into personal property, such as implements of husbandry, barrels, furniture, or even rails, when not put into a fence, * * -» noj. pass with it, any more than the grain, grass, or fruit which has grown upon it and been gathered from it. The government being the owner of the land at the time of the trespass by cutting timber, it might recover in trespass for the injury done to the land, or by action of trover to recover the value of the rails, which would certainly be a ban to the defendant’s recovery for the same trespass, * * * * The vendor and vendee of the land can not both have a remedy for the same trespass.” The same principle was afterwards enunciated by that court in a similar case. (Brown v. Throckmorton, 11 Ill. 529.) Applying to the case under consideration the principle declared by the supreme court of Illinois, which we hold to be a correct exposition of the law, it follows as a necessary result that no title to the wood passed to Schuster when the state made him a deed for the land; and consequently he could give none to the appellants; and it is well settled that in an action of trover the plaintiff must establish property in himself at the time of conversion, in order to recover. (Sheldon v. Soper, 14 Johns. 353.) We hold, however, as a matter of law, that the wood for the conversion of which this action was brought, did not belong to the state, but that Foley was the owner of it after it became personal property by severance from the realty. He had purchased the land, paid one third of the purchase money, and given his notes for the balance; and was in the lawful possession of it. He could not, therefore, on any principle of law, be considered a trespasser when he cut the wood upon it, nor be held responsible for the value of it. The legislative assembly, when it authorized a sale of the school lands belonging to the state, imposed no condition upon the purchaser as to the manner in which he should use the land. Whether it is good policy or not to permit him to cut down and dispose of growing timber, before he has fully paid the purchase money, is a matter for legislative consideration, [348] with which the courts have nothing to do. It is for them to say that any restrictions should be imposed upon him in the enjoyment of the land, or the use he shall make of it. It is true that a pre-emption settler on the public lands, before purchasing the same, is not allowed to cut down and dispose of growing timber, other than such as may be necessary for his own use in the ordinary course of husbandry. But that is because the land belongs to the United States, and the settler has, at most, but a license from the government to occupy it, and the right to purchase the same within a specified time, at the minimum price. He is not, therefore, permitted to lessen the value of the land which is not his own. It follows, from the view we take of the law, that the appellant never had any interest or property in the wood in controversy, and that he is not entitled to recover in this action. It is not necessary, therefore, to examine or coñsider the other points raised in the argument by counsel. The judgment of the circuit court is affirmed with costs.