Opinion
May, 1904.
Adon P. Brown, for the appellant.
Joseph Mason and E.W. Cushman, for the respondents.
We think that the demurrer should have been sustained. The complaint does not contain an unqualified allegation of ownership or right to the possession of the earthenware in the plaintiffs. The allegation of ownership is, "said plaintiffs were the owners thereof as hereinbefore stated." Even this allegation does not relate to the time of the commencement of the action. (Code Civ. Proc. § 1720.) The allegations relating to the ownership and right to the possession of the earthenware, and as to the defendant's taking the same wrongfully and unlawfully as against the plaintiffs, are conclusions of law on the facts in the complaint stated.
The sufficiency of the complaint must be determined by the facts stated and not by conclusions. ( Lange v. Benedict, 73 N.Y. 12; Savage v. City of Buffalo, 50 App. Div. 136.)
Where an allegation contained in a complaint is a conclusion from the other facts therein stated, it is not to be deemed admitted by a demurrer. ( Rector of St. James Church v. Huntington, 82 Hun, 125.)
The facts stated in the complaint are, briefly, that the plaintiffs' testator died March 23, 1903, and that at the time of his death he was the owner of certain real property upon which "there was deposited and for many years prior thereto had been deposited in the soil upon the real estate" certain earthenware; that said testator by his will named the plaintiffs as his executors, and that said will has been admitted to probate, and that letters testamentary have been issued to the plaintiffs; that plaintiffs, "under and by virtue of said will became the owners of and had the legal title to the undivided two-thirds part of said real estate and entitled to the undivided two-thirds of the personal estate" of said testator; that defendant on March 28, 1903, took said earthenware out of the soil where it was deposited upon said farm, and took the same into his possession and retains the same, and that on May 5, 1903, he refused to deliver it to the plaintiffs on demand.
The complaint does not disclose by whom nor under what circumstances said earthenware was deposited in the soil of said real property. It may, so far as appears, have been deposited therein by the defendant or by some one under whom he claims. Whether it was so deposited by some one other than the owner of the real property, or by an owner of the real property or under an agreement with such owner of the real property by which it was there to remain for an express purpose, or for a prescribed period of time, is left wholly to conjecture. So, too, the complaint fails to show whether the owner of the earthenware is known, or whether it had been so deposited such a length of time that all knowledge thereof and of the person who had thus deposited it and of his personal representatives had been lost to memory. The complaint is wholly barren of any facts relating to the history and ownership of said earthenware. The plaintiffs as the personal representatives of the testator, and individually as the owners of an undivided interest in the real and personal property left by the testator, base their ownership of said earthenware upon the simple fact that it was deposited for many years in said real property so owned by their testator at the time of his death. Such claim on the part of the plaintiffs makes it necessary for us to consider briefly the ownership and the rights of finders of personal property.
An unqualified owner of personal property is entitled to the possession thereof. Such ownership may be transferred by sale, by gift or by descent. If personal property is thrown upon the surface of the soil and abandoned it will become the property of the person who finds and appropriates it without reference to the ownership of the real property upon which it is found or from which it is taken. If personal property is lost, it becomes as against all persons other than the owner thereof, the property of the finder who appropriates it. (See White v. Daniels, N YL.J., Jan. 9, 1904.) If personal property is deposited beneath the surface of the soil and so left until the place where it is so deposited is forgotten and the owner thereof, if living, or his personal representatives, if he is dead, cannot be found, such personal property so in the possession of the owner of the soil becomes as a part of the soil the property of the owner of the real property and such personal property passes by gift, sale or descent of said real property as a part thereof. When it is discovered and removed from the soil as against every one but the owner, it becomes the personal property of the owners of such real property, and not the property of the finder thereof.
The language of the court in the case of Elwes v. Brigg Gas Company (33 Ch. Div. 562) is applicable to this case. In that case lessees of real property in making an excavation uncovered an ancient ship or boat some 2,000 years old. The action was brought by the owner of the real property against the lessees who had uncovered it, and the court say: "The first question which does actually arise in this case, is whether the boat belonged to the plaintiff at the time of the granting of the lease. I hold that it did, whether it ought to be regarded as a mineral or as part of the soil within the maxim above cited, or as a chattel. If it was a mineral or part of the soil in the sense above indicated then it clearly belonged to the owners of the inheritance as part of the inheritance itself. But if it ought to be regarded as a chattel, I hold the property in the chattel was vested in the plaintiff, for the following reasons: Being entitled to the inheritance, * * * and in lawful possession, he was in possession of the ground; not merely of the surface, but of everything that lay beneath the surface down to the center of the earth, and consequently in possession of the boat. * * * The boat was imbedded in the land. A mere trespasser could not have taken possession of it; he could only have come at it by further acts of trespass involving spoil and waste of the inheritance. * * * The plaintiff then being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established. It had for centuries been lost or barred; even supposing that the property had not been abandoned when the boat was first left on the spot where it was found. The plaintiff then had a lawful possession, good against all the world, and, therefore, the property in the boat. In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat. * * * Further, if it ought to be regarded as a chattel, the defendants did not acquire any property in the chattel by the mere finding as against the plaintiff, who upon the grounds already stated was the owner of the chattel."
The allegations of the complaint that said earthenware had been deposited in the soil of said real property for many years prior to the death of the plaintiffs' testator do not as a matter of law show that the plaintiffs are the owners nor entitled to the possession thereof. Even if the complaint contained allegations stating that the owner of the earthenware so deposited could not be found, it would nevertheless appear upon the face of the complaint that, at the time of the testator's death, the earthenware remained deposited in the soil and that such title thereto as the testator then had passed with the real property to the persons to whom the real property was devised, and that the plaintiffs, as executors, obtained no interest therein; and if the title to said earthenware passed with the said real property to the devisees thereof, then it appears upon the face of the complaint that the plaintiffs individually are but part of the owners in common thereof.
In any aspect of the case we think that the defendant's demurrer must be sustained. The judgment should be reversed, with costs, and interlocutory judgment directed sustaining demurrer, with costs, with leave to plaintiffs to serve, within twenty days, an amended complaint on payment of costs of demurrer and of this appeal.
All concurred.
Judgment reversed, with costs, and interlocutory judgment directed sustaining demurrer, with costs, with leave to plaintiffs to serve, within twenty days, an amended complaint on payment of costs of demurrer and of this appeal.