Johnson v. C. & N. W. Sand & Gravel Co.

JENKINS, Circuit Judge (alter stating the facts as above). The plaintiffs in error were not in the actual possession of the premises at the occurring of the alleged trespasses, and they were not entitled to the possession of the premises at the bringing of the suit, having previously conveyed their interest. We do not stop to inquire, concerning the declaration, whether the various counts are in trespass or trespass on the case, or some in one and some in the other; for the main question here is whether, in such an action, — whether it be in trespass or in trespass on the case, — the one having legal title, but being out of possession, may recover for injuries done to the freehold by one in actual and peaceable possession under color of title, and claiming in good faith to be the owner. 'The actions of trespass and trespass on the case were not designed to be actions for the trial of title to the land. They are transitory, not local actions, like ejectment. It is indeed true that when the owner is out of actual possession, having only that constructive possession which flows from his title, he may maintain an action for trespass against one whose; only possession is casual, and in aid of the trespass. In such an action he must prove his title to the land, in order to show himself to be the owner of, and entitled to, that which has been severed from the freehold. We, however, understand the rule to be that the true owner out of possession cannot maintain an action to recover damages for injury to the freehold, or for the severance and conversion of a portion of the freehold, against one in the open, notorious, exclusive, adverse, and hostile possession, claiming under color of title in good faith. Such an action is not the appropriate remedy. Com. Dig. “Trespass”; Rolle, Abr. “Trespass,” K, 3, K, 4; Allen v. Thayer, 17 Mass. 299; Bigelow v. Jones, 10 Pick. 161; Wood v. Lafayette, 68 N. Y. 190; Brothers v. Hurdle, 32 N. C. 490; Branch v. Morrison, 50 N. C. 16; Id., 51 N. C. 16; Mather v. Ministers of Trinity Church, 3 Serg. & R. 508; Wright v. Guier, 9 Watts, 172; Brewer v. Fleming, 51 Pa. St. 102; Transit Co. v. Weston, 121 Pa. St. 485, 15 Atl. 569; Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J. Law, 350, 26 Atl. 920; Rowland v. Rowland, 8 Ohio, 40; White v. Yawkey, 108 Ala. 270, 19 South. 360; Halleck v. Mixer, 16 Cal. 574; Page v. Fowler, 28 Cal. 605; Cook v. Foster, 2 Gilman, 652; Anderson v. Hapler, 34 Ill. 436; Winkler v. Meister, 40 Ill. 349; Smith v. Wunderlich, 70 Ill. 426; Railroad Co. v. Cobb, 82 Ill. 184; Ft. Dearborn Lodge v. Klein, 115 Ill. 177, 3 N. E. 272. The action of ejectment in such cases furnishes ample relief, coupled with the equitable consideration that under statutes in vogue in most of the states the defendant in actual possession under bona fide color of title may have proper allowance for the betterments he has placed in good faith upon the property, and which have increased its value. Having the legal title, Francis Johnson could have had his action for a trespass or entry amounting to an ouster, but the statute of limitation has run against the assertion of that right. To enable the Írue owner to recover for damages done subsequently to the ouster, there; must be a re-entry. The supreme court of Michigan, in Busch v. Nester, 70 Mich. 525, 38 N. W. 458; McKinnon v. Meston, 272 104 Mich. 642, 62 N. W. 1014; Cook v. Cook, 106 Mich. 164, 64 N. W. 12; Moret v. Mason, 106 Mich. 340, 64 N. W. 193,—have gone as far as any court in opposition to tbe rule, altbougb it must fairly be said that in each of these cases tbe decision seems to be rested upon tbe ground either .that tbe case presented was not within tbe rule, or that tbe alleged possession was only a subterfuge, or a fugitive possession merely for tbe purpose, of committing the trespass complained of. In tbe case before us, however, the possession was undoubtedly long continued, bona fide, exclusive, and hostile, under claim and color of title, accompanied with the payment of taxes for many years. Under such circumstances tbe rule is too well settled to be disregarded, whatever may be thought of tbe justice of tbe rule. If its enforcement will deprive tbe plaintiffs in error of all remedy, it is only because by their voluntary act they have devested themselves ’of title. We are asked to bold that the possession of tbe defendants in error has ripened into a perfect title under tbe statute of limitations of tbe state of Illinois. We cannot do that, because tbe courts in this class of actions are not at liberty to try the title to land, and also because tbe evidences of title were introduced merely as a basis for color of title accompanied by possession, and not in support of any claim of absolute .title to tbe land. Tbe judgment is affirmed.