Wilson v. Hoffman

McGrath, J. Plaintiff recovered in ejectment against, defendant after an adjudication by this Court (see 70 Mich. 552), and in April, 1889, filed a suggestion of damages in the circuit court. The bill of particulars of his claim in that proceeding contained the following items: Eor rent of premises 6 years, at $50 per year......$300 00 Eor 296 logs, 33,650 feet of pine logs, cut and moved by defendant from the land described in plaintiff’s declaration, at $16 per M........................ 538 70 Eor 77 cords of bolts, at $10....................... 770 00 On the 8th of October, 1889, the trial resulted in a verdict for plaintiff for $72.1 Before filing the suggestion for rents and profits as above, plaintiff commenced this action of trover by summons, filing his declaration July 20, 1889, seeking “ to recover the value-of 500 pine trees, 100 oak trees, 100 hemlock trees, 500 pine logs, 100 oak logs, 100 hemlock logs, 100,000 feet of pine logs, and 100 cords of pine bolts, all of the value of five thousand dollars.” Defendant pleaded 'the general issue, with notice of the pendency of the other suit involving the same-matters. After the trial of the proceeding for assessment of damages, upon leave granted, defendant filed an additional notice, setting up the judgment in the other suit as a bar to-this action. The learned circuit judge directed a verdict for-defendant. Defendant’s contention is: 1. That trover will not lie for the cutting and removing of standing timber from premises while in possession of a defendant in ejectment under claim of right. [75] 2. That the judgment in the action for mesne profits is a bar to the maintenance of the present suit. It seems to me that the case of Busch v. Nester, 62 Mich. 381, 70 Id. 525, disposes of the first contention. The only difference between the cases is that in that case the party in possession of the land, and who had cut the logs under a bona fide claim of title adverse to the owner, brought replevin against the true owner, who had obtained possession of the logs by questionable methods, before the question of title to the land had been determined; while in the present case the true owner brings trover against the party who cut the logs, under a bona fide claim of title adverse to the owner, after the title to the land has been determined in favor of the plaintiff. I am unable to discover why any different rule should be adopted because in this suit Busch is the defendant. If in the present case the logs had been upon the land when the ejectment suit was determined, that determination would have established the title in plaintiff. Suppose, however, that before the determination of the ejectment suit the logs had been skidded upon adjoining land, would the ownership or right to possession depend upon which party first reached the skids? As is said in the Busch case, as between the wrong-doer and the true owner of the land, the title to what is severed from the freehold is not changed by the severance, whatever may be the case as to strangers. If the true owner may keep his own property when he gets it, why may not he get it if another has it? An additional reason for the rule laid down in the cases cited by defendant is that trover cannot be maintained by one not in actual possession, but the rule is well established in this State that trover may be maintained by one who had the right to possession. The law, after re-entry, supposes the freehold to have always existed in the party re-entering. [76] Dewey v. Osborn, 4 Cow. 329; Morgan v. Varick, 8 Wend. 587; Van Brunt v. Schenck, 11 Johns. 377. As is said by Cowen, J., in Leland v. Tousey, 6 Hill, 328: “ The answer to the objection is found in the ejectment suit and recovery. The plaintiff was all along in actual possession according to his right. His actual possession, acquired by ejectment or entry, relates to the time when his title was acquired, not only as against the defendant in ejectment, but all other wrong-doers.” As to the second contention, whatever scope may be given to the language “rents and profits,” and the proceeding in assumpsit for use and occupation, I am of opinion that the remedy is not exclusive, and was not intended to take away other remedies. It is urged by defendant’s counsel that a tort may be waived and assumpsit brought, but I do not think that the Legislature intended to say that in all cases a tort must be waived. It is very clear from what is said in Busch v. Nester that, in the class of cases there alluded to, the owner is not confined to the remedy of ejectment and rents and profits. In any case where replevin could be brought, the statutory remedy might be a barren one. In Gill v. Cole, 2 Har. & J. 403, it is held that a recovery in trespass for mesne profits is only for the .use and occupation of the lands, and does not bar an action for injuries done to the premises during the same period. In Campbell v. Renwick, 2 Bradf. Sur. 84, it is held that the common-law action for the recovery of mesne profits was not abolished by the revised statutes. I think, therefore, that judgment in the proceedings under the statute is not necessarily a bar to the present action. The judgment must therefore be reversed, and a new trial ordered, with costs to plaintiff. The other Justices concurred. Footnotes [1] The recovery was confined to rent, the remainder. of plaintiff’s-claim as set forth in his bill of particulars being withdrawn from, the consideration of the jury.