Phillips v. Gastrell

Campbell, C. J., delivered the opinion of the court. We have heretofore recognized the doctrine “ that a disseizee cannot maintain an action for the value of trees or other part of the land sold,” Miller v. Wesson, 58 Miss. 831, and it follows that replevin is not maintainable by the disseizee for such things. But to defeat the action on the ground of the disseizin of the plaintiff there must be an actual adverse occupation of the land, held in good faith under claim of title. The action is denied because the [417] occupant of land under such circumstances should not be “ harassed with a separate action for each bushel of wheat consumed or stick of firewood burnt on the premises, instead of having the matter settled at once by an action to recover the possession ” of the land. Wright v. Guier, 9 Watts 172. We are disposed to restrict the doctrine within its narrowest limits, and to deny the action only as against the actual possessor of the land, and to permit it against a trespasser however frequently he may have repeated his trespasses. We do not think the appellee is shown to have had such actual occupation of the land as to deny the real owner the right to maintain replevin for logs cut from' the land. This is swamp land, valuable probably only for its timber, and not capable of actual occupation. It was temporarily and occasionally occupied by persons “camped” on it for the purpose of felling trees to be rafted out. There was no permanent or continuous occupation of it and the facts do not bring the case within the rule as stated. Policy dictates a permission to bring replevin by the true owner of the trees in such a case. Reversed and new trial granted. ■