Opinion
(December Term, 1857.)
Turpentine run into boxes (cut into the trees) is personal property.
One who is possessed of land, though he has no title to it, is the true owner of turpentine produced by his labor and cultivation and run into boxes, and he can maintain trover for taking it from them.
THIS was an action of TROVER, tried before his Honor, Judge BAILEY, at the last Fall Term of Harnett Superior Court.
Neil McKay and Moore, for plaintiffs.
Shepherd and Winslow, for defendants.
The plaintiffs declared for the conversion of a quantity of turpentine taken out of his boxes, cut into trees. They proved that in December, 1853, they leased from Neil McKay a large tract of land, in which he, McKay, had cut boxes, and which he had worked in the year 1853; that they cut other boxes, and that in 1854, after these boxes had filled up and were ready for sapping, Alexander Morrison, the in testate of one of the defendants, and the other defendant, Ray, went upon the land and dipped the turpentine from the boxes and carried it off, amounting to about forty barrels.
The defendants then offered a grant from the State, dated January, 1854, to Alexander Morrison, and that this grant embraced the territory upon which were the trees from which the turpentine in question was made, and claimed to have entered and taken the commodity in question under this grant.
The plaintiffs then produced in evidence a grant from the State to John Gray Blount for the land in question, dated in 1795, and exhibited several mesne conveyances for the same, but none of them connected the plaintiffs with Blount, at the date of the lease from Mr. McKay, or at the date of the writ.
The plaintiffs then offered evidence to locate the Blount grant, but his Honor holding that the plaintiffs had shown title out of themselves, and that they could not recover, they took a nonsuit and appealed.
Turpentine in boxes, in a state to be dipped up, is personal property. It no longer forms a part of the tree, but has been separated by a process of labor and cultivation. If, like the sap of the sugar-maple, its flow were directed into vessels on the ground near the tree, no one would doubt its being severed from the realty. This is the same in effect with turpentine, although its flow is directed into boxes cut in the tree itself. When it ceases to be a part of the tree, it becomes personal property. State v. Moore, 11 Ire. Rep. 70.
It was then insisted, that although the turpentine was personal property, in the possession of the plaintiff at the time of the conversion, yet he could not maintain trover, for the right of property was not in him, and the true owner was known, to wit, the heirs of Blount, who had title to the land.
It is settled by Barwick v. Barwick, 11 Ire. Rep. 80, that trover will not lie upon a mere possession, where the true owner is known. The plaintiffs' counsel commented upon this case, but we are satisfied that it rests upon correct principles, and it is approved in Craig v. Miller, 12 Ire. Rep. 375, which case is distinguished and put on the ground taken in Armory v. Delamire, 1 Strange's Rep. 505, that the true owner was not known. In our case, however, suppose the land belongs to Blount's heirs, that does not give them a right to the turpentine which had been severed from the realty by the plaintiffs, while they were in possession of the land; on the contrary, the turpentine, when, by the labor and cultivation of the plaintiffs, it was made personal property, became the property of the plaintiffs. So they are the true owners. The heirs of Blount, if they ever regain possession of the land, may have an action of trespass quare clausum fregit, "for treading down grass," against the plaintiffs, but they will have no right of action to recover this particular turpentine, either against them, or the defendants, for they never had a right of property in it, and cannot acquire either a right of possession, or of property in respect to it, by the jus post liminii; Brothers v. Hurdle, 10 Ire. Rep. 490. It is there held that the owner of land cannot maintain trover for corn, fodder, c., that had been raised on the land and severed while the defendant was in possession. The court say, "the amount of it would be, when one who has been evicted regains possession, he may maintain trover against every one who has bought a bushel of corn or a load of wood from the trespasser, at any time while he was in possession! This, especially in a country where there are no markets overt, would be inconvenient, and no person could safely buy of one whose title admitted of question."
The defendants' counsel took a distinction between things which are of annual cultivation, e.g. corn, and such as are of the natural growth of the earth, e.g. trees. The distinction makes a difference to this extent: the former is personal property for some purposes before severance, the latter is not; but after severance both species become personalty, and the same principle is applicable.
The defendant's counsel then insisted, that although he could not be sued in trover by Blount's heirs, yet he would be exposed to their action of trespass quare clausum, in which the value of this turpentine would be incidentally involved, and he could not protect himself, by the plaintiffs' recovery, from being charged a second time in respect thereof, and, therefore, he contended, the case fell within the principle of Barwick v. Barwick, supra.
The principle cannot be extended that far. The action of trover, founded upon the plaintiffs' possession, can only be defeated when the true owner is known, so that the defendant, by satisfying the judgment, would not become the owner of the chattel by a judicial transfer, but would be exposed to a second action in respect to the chattel itself. A mere possibility that the owner may afterwards be discovered, will not defeat the action; Armory v. Delamire, supra; Craig v. Miller, supra.
In our case, the plaintiffs are the owners of the chattel. The defendants, by satisfying the judgment, will acquire a perfect title to it, and the possibility that Blount's heirs may sue them for trespass to the land, cannot defeat the action, for, in fact, the value of this turpentine would not even incidentally be chargeable to them, it having been severed and become the personal property of the plaintiffs before the defendants trespassed upon the land. So that the value of the turpentine could only be taken into the amount of damages in the action of trespass against the plaintiffs, which Blount's heirs may bring against them. There is error.
PER CURIAM, Nonsuit set aside, and a venire de novo.