Pennybecker v. McDougal

By the Court, Crockett, J.: This is an action to recover a small frame building, and-certain fencing materials, alleged to have been the property and in the possession of the plaintiff, and to have been wrongfully removed, and to be unlawfully detained by the defendants. The answer—1st, denies all the allegations of the complaint; 2d, the plaintiff’s title; and avers that the title and right of possession are in the defendants; 3d, avers that without the fault of the defendants, the property has been consumed by fire. Judgment was entered for the plaintiff, and the defendants appeal.

It appeared- at the trial that in the year 1864, the defendants inclosed with a fence thirty acres of the public land of the United States, and erected upon the tract a small frame building, set upon blocks, resting upon the [163]ground; that in July, 1872, the plaintiff received from the United States a patent for a larger tract, which included the thirty acres; that he commenced an action against the defendants to recover the thirty acres, and in September, 1872, obtained a judgment of restitution; that before the judgment was executed, the defendants removed the fences and building from off the thirty acres on to their own premises, where the fencing material was destroyed by fire, before the commencement of this action. It was also proved that the value of the building was twenty-five dollars, and that the fences as they stood on the ground were worth two hundred dollars; but after removal, the materials were worth only seventy-five dollars. This was all the evidence. The judgment was for a return of the property; and if a return, could not be had, then for the value, assessed at two hundred and twenty-five dollars.

The defendants’ counsel rely with much earnestness upon the Act of March 30, 1868 (Statutes 1867-8, p. 708) as furnishing a complete defense to the action. The Act provides that “ any inhabitant of this State, who has put or placed improvements upon any lands belonging to this State or to the United States, or who has the right of possession of such improvements on said lands, shall have the right to remove such improvements from such lands at any time within six month after such lands shall have become the private property, by purchase or otherwise, of any person or persons, firm, corporation or company, either within or without this State; and such inhabitant shall not be liable to an action for damages for the removal of such improvements within the time above stated. All houses, barns, sheds, outhouses, buildings and fences, and all orchards and vineyards, shall be deemed, and held to be improvements, within the meaning of this Act.”