Halleck v. Mixer

California Supreme Court Jul 1, 1860Published

Before: Field

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Holding. The court held that a complaint alleging the wrongful removal of timber from land by a defendant is sufficient to state a cause of action for the recovery of the property or its value, and that such an action does not improperly involve title to real estate when the defendant is a mere trespasser.

Issues

Whether a complaint alleging the wrongful removal of timber from land states a sufficient cause of action.
Whether an action for the recovery of property severed from the freehold is precluded by the necessity of proving title to the land.
Whether executors require special authorization from the Probate Court to institute an action for the recovery of property belonging to the estate.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The plaintiffs possessed the right to institute the present action as executors under the general authority conferred upon them by the statute.”

Synopsis

A complaint in replevin, alleging that the testator was seized and possessed of certain premises at the time of his death, on the nineteenth of July, 1855, and that the plaintiffs were appointed the executors of his last will and testament, without averring, in direct terms, either previously or subsequently, the fact of the testator’s death, or that he left a last will and testament, is defective as a pleading.

A complaint in replevin, alleging that F. was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same without authority, and cut down timber growing thereon to the amount of about three hundred cords ; that the defendant after-wards also entered upon the premises, without authority, and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage of $1,100—the alleged value of the wood—sufficiently shows plaintiffs’ ownership of the wood.

The averments in such complaint of “unlawful and wrongful,” as applied to the entry upon the premises and the cutting down of the timber, and to defendant’s removal and detention of the same, may be stricken out as surplusage.

Against the catting of timber, the owner of real property is entitled to the preventive remedy of injunction. Whilst the timber is growing, it is part of the realty, and its destruction constitutes that kind of waste, the commission of which a Court of Equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously, and he may pursue it in whosoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he cannot find the property to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value as upon an implied contract of sale.

In suits for damages for timber cut and removed, as in this case, the true rule, so far as the title to the land is concerned, is this : The plaintiff out of possession cannot sue for the property severed from the freehold, when the defendant is in possession of the premises from which the property was severed—holding them adversely, in good faith, under claim and color of title—in other words: The personal action cannot be made the means of litigating and determining the title to the real property as between conflicting claimants.

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring.

The complaint in this case is subject to a criticism which is applicable to a large number of complaints coming before this Court. It assumes, in some of its allegations, facts which should themselves have been distinctly and separately stated. Thus, it alleges that the testator was seized and possessed of certain premises at the time of his death, on the nineteenth of July, 1855, and that the plaintiffs were appointed the executors of his last will and testament, without averring, in direct terms, either previously or subsequently, the fact of the testator’s death, or that he left a last will and testament. This mode of statement wants the precision and directness essential to all good pleading, and should not be countenanced. But it is not for defects of this character that objections are urged by the respondent to the complaint. The demurrer is, that the complaint does not state facts sufficient to constitute a cause of action; that it shows the title to real estate is necessarily [578]involved, and does not show that the plaintiffs are the owners of the property, or that they are the executor’s of Folsom, or have any authority to maintain the action. On none of these grounds can the demurrer be sustained.

1. The material and substantive allegations of the complaint are, that Folsom was seized and possessed of certain premises at the time of his death; that the plaintiffs were appointed the executors of his last will and testament, and ever since their appointment have been in the possession of the premises; that certain persons, whose names are not designated, entered upon the same, without authority, and cut down timber growing thereon to the amount of about three hundred cords; that the defendant afterwards also entered upon the premises without authority and removed the wood thus cut, and still detains it from the plaintiffs; that they have demanded the possession of the same from him, and that he refuses to deliver it to them, to their damage of $1,100 —the alleged value of the wood. What more than this should be stated to entitle the plaintiffs to recover, it is difficult to conceive. The averments of “unlawful and wrongful,” as applied to the entry upon the premises, and the cutting down of the timber, and to the defendant’s removal and detention of the same, may be stricken out as surplusage. Whilst they do no good, they do not vitiate the pleading. By the demurrer, the allegations are admitted to be true, and there would be a singular defect in the administration of justice, if, upon their admitted truth, the plaintiffs were remediless. Against the cutting of timber, the owner of real property is entitled to the preventive remedy of injunction. WTiilst the timber is growing it is a part of the realty, and its destruction constitutes that kind of waste, the commission of which a Court of Equity will, upon petition, restrain. When once cut, the character of the property is changed; it has ceased to be a part of the realty and has become personalty, but its title is not changed. It belongs to the owner of the land as much afterwards as previously, and he may pursue it in whosoever hands it goes, and is entitled to all the remedies for its recovery which the law affords for the recovery of any other personal property wrongfully taken or detained from its owner. And if he cannot find the property to enforce its specific return, he may waive the wrong committed in its removal and use, and sue for the value as upon an implied contract of sale. (Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505; Wingate v. Smith, 20 Maine, 287; Davis v. Easley, 13 Ill. 192.)

Halleck v. Mixer

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