The opinion of the court was delivered by
YaleNTINE, J.:
This case has been brought to this court upon a “case-made,” which is a model of brevity and clearness, and reflects great credit upon the able counsel who prepared it. The case has also been very ably presented to this court by counsel on both sides, and if we should err in its decision, it will not be their fault. ‘ The amount involved in this controversy seems to be small and trifling, but the principles involved are supposed to be of vital importance, and counsel for plaintiff in error, defendant below, says that the decision of the case involves the possible liability for not only many dollars, but many hundreds of thousands of dollars. We have therefore given the case a very careful consideration.
The record of .the case, as presented to this court, shows that on October 4, 1883, David Atchison filed his petition in the district court of Leavenworth county, in which petition he alleged, among other things, that he was then and had been for [734]*734more than five years the legal and equitable owner of a certain piece of land, describing it, situated in Platte county, state of Missouri, and being on what is commonly known as “ Leavenworth Island; ” that the defendant, George McGonigle, did, on or about March 1,1883, unlawfully and wrongfully enter upon said premises and dig sand thereon, and remove, take and carry away to the city of Leavenworth, and convert and appropriate the same to his own use, to wit, 200,000 bushels, of the value of one cent per bushel, to the damage of the plaintiff in the sum of $2,000, and prayed judgment for the sum of $2,000 and costs. To this petition the defendant answered, the answer being a general denial. Upon the issues as thus made, the cause came on for trial before the court and a jury; whereupon the defendant objected to the introduction of any testimony, upon the ground that the petition did not state facts ■sufficient to constitute a cause of action of which the district court had jurisdiction. This objection was overruled by the court, and the trial proceeded, and resulted in a verdict of $1 for the plaintiff. The defendant moved for a new trial upon the ground of error of law occurring at the trial and duly excepted to, which motion was overruled, and the defendant excepted. Judgment was then rendered in favor of the plaintiff and against the defendant for $1 and costs, to which judgment the defendant excepted, and now brings the case to this court for review.
Counsel for plaintiff in error, defendant below, states in his brief that the question involved in this case is as follows: “ Is this a local or a transitory action ? Is it trespass quare elausum fregit, or trespass de bonis asportatis?” We think the question may be more properly stated as follows: Do the facts of this case show a cause of action that is transitory, or one that is purely local? Or in other words, do the facts of this case show a cause of action in the nature of trespass de bonis asportatis, or trover, on the one side, or trespass quare elausum fregit, on the other side? If the facts show a cause of action in the nature of trespass de bonis asportatis, or trover, then the action is certainly transitory; but if they show only a cause of action in [735]*735tbe nature of trespass qucire dcmsum fregit, then the action is admittedly local. The distinction between transitory and local actions, both at common law and under the code, is generally and substantially as follows: If the cause of action is one that might have arisen anywhere, then it is transitory; but if it is one that could only have arisen in one place, then it is local. Hence actions for injuries to real estate are generally local, and can be brought only where the real estate is situated; while actions for injuries to persons or to personal property, or relating thereto, are generally transitory, and may be brought in any county where the wrongdoer may be found. These propositions we suppose are conceded. But the real contention between the parties to this action is, whether the real and substantial grievance set forth by the plaintiff as the foundation for his action is one which relates merely to real estate, or one which may be considered as fairly relating to personal property. The petition states wrongs relating both to real estate and to personal property. It states that the defendant unlawfully and wrongfully entered upon the plaintiff’s premises, in Missouri, and dug sand thereon. This of course was a wrong relating to real estate only; but the petition also states that after the sand was severed from the real estate, the defendant then removed the same to Leavenworth city, Kansas, and there converted and appropriated the same to his own use ■ and these last-mentioned wrongs certainly relate to personal property only; for as soon as the sand was severed from the real estate it became personal property.
This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law-writers. Besides, the plaintiff in this case, after alleging the above-mentioned wrongs, then asks for damages only for the wrongful conversion of the sand, which was personal property, and does not ask for damages' for injuries done to his real estate. He seems to waive all the wrongs and injuries done with reference to his real estate and to his possession thereof, provided the digging and the removal of the sand was any injury to either, and sues only for the value of [736]*736the sand which was converted. We think it is true as is claimed by the defendant, that the petition states facts sufficient to constitute a cause of action in the nature of trespass quare clausum fregit; but it also states facts sufficient to constitute a cause of action in the nature of trespass de bonis as-portatis, and of trover; and we think the plaintiff may recover upon either of these latter causes of action, for they are unquestionably transitory; although it must be conceded that he cannot recover upon the former cause of action, for it is admittedly local in its character, and because the plaintiff has brought his action in a jurisdiction foreign to the one where this local cause of action arose. But as the plaintiff' asks no relief pertaining specially to the local cause of action, but only such as may be given upon the facts of the transitory cause of action, we think he may recover.
All the old forms of action are abolished in Kansas. We now have no action of trespass quare clausum fregit,-nor of trespass de bonis asportatis, nor of trover; but only one form of action, called a civil action. (Civil Code, § 10.) And under such form of action all civil actions must be prosecuted; and all that is necessary in order to state a good cause of action under this form is to state the facts of the ease in ordinary and concise language, without repetition. (Civil Code, § 87.) And vrhen the plaintiff has stated the facts of his case, he will be entitled to recover thereon just wdiat such facts will authorize. (Fitzpatrick v. Gebhart, 7 Kas. 42, 43; Kunz v. Ward, 28 id. 132.) We now look to the substance of things, and not merely to forms and fictions. If the facts stated by the plaintiff would authorize a recovery under any of the old forms of action, he will still be entitled to recover, provided he proves the facts. If the facts stated would authorize one or two or more kinds of relief, he may then elect as to which kind of relief he will obtain; and the prayer of his petition will generally indicate his election.
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The opinion of the court was delivered by
YaleNTINE, J.:
This case has been brought to this court upon a “case-made,” which is a model of brevity and clearness, and reflects great credit upon the able counsel who prepared it. The case has also been very ably presented to this court by counsel on both sides, and if we should err in its decision, it will not be their fault. ‘ The amount involved in this controversy seems to be small and trifling, but the principles involved are supposed to be of vital importance, and counsel for plaintiff in error, defendant below, says that the decision of the case involves the possible liability for not only many dollars, but many hundreds of thousands of dollars. We have therefore given the case a very careful consideration.
The record of .the case, as presented to this court, shows that on October 4, 1883, David Atchison filed his petition in the district court of Leavenworth county, in which petition he alleged, among other things, that he was then and had been for [734]*734more than five years the legal and equitable owner of a certain piece of land, describing it, situated in Platte county, state of Missouri, and being on what is commonly known as “ Leavenworth Island; ” that the defendant, George McGonigle, did, on or about March 1,1883, unlawfully and wrongfully enter upon said premises and dig sand thereon, and remove, take and carry away to the city of Leavenworth, and convert and appropriate the same to his own use, to wit, 200,000 bushels, of the value of one cent per bushel, to the damage of the plaintiff in the sum of $2,000, and prayed judgment for the sum of $2,000 and costs. To this petition the defendant answered, the answer being a general denial. Upon the issues as thus made, the cause came on for trial before the court and a jury; whereupon the defendant objected to the introduction of any testimony, upon the ground that the petition did not state facts ■sufficient to constitute a cause of action of which the district court had jurisdiction. This objection was overruled by the court, and the trial proceeded, and resulted in a verdict of $1 for the plaintiff. The defendant moved for a new trial upon the ground of error of law occurring at the trial and duly excepted to, which motion was overruled, and the defendant excepted. Judgment was then rendered in favor of the plaintiff and against the defendant for $1 and costs, to which judgment the defendant excepted, and now brings the case to this court for review.
Counsel for plaintiff in error, defendant below, states in his brief that the question involved in this case is as follows: “ Is this a local or a transitory action ? Is it trespass quare elausum fregit, or trespass de bonis asportatis?” We think the question may be more properly stated as follows: Do the facts of this case show a cause of action that is transitory, or one that is purely local? Or in other words, do the facts of this case show a cause of action in the nature of trespass de bonis asportatis, or trover, on the one side, or trespass quare elausum fregit, on the other side? If the facts show a cause of action in the nature of trespass de bonis asportatis, or trover, then the action is certainly transitory; but if they show only a cause of action in [735]*735tbe nature of trespass qucire dcmsum fregit, then the action is admittedly local. The distinction between transitory and local actions, both at common law and under the code, is generally and substantially as follows: If the cause of action is one that might have arisen anywhere, then it is transitory; but if it is one that could only have arisen in one place, then it is local. Hence actions for injuries to real estate are generally local, and can be brought only where the real estate is situated; while actions for injuries to persons or to personal property, or relating thereto, are generally transitory, and may be brought in any county where the wrongdoer may be found. These propositions we suppose are conceded. But the real contention between the parties to this action is, whether the real and substantial grievance set forth by the plaintiff as the foundation for his action is one which relates merely to real estate, or one which may be considered as fairly relating to personal property. The petition states wrongs relating both to real estate and to personal property. It states that the defendant unlawfully and wrongfully entered upon the plaintiff’s premises, in Missouri, and dug sand thereon. This of course was a wrong relating to real estate only; but the petition also states that after the sand was severed from the real estate, the defendant then removed the same to Leavenworth city, Kansas, and there converted and appropriated the same to his own use ■ and these last-mentioned wrongs certainly relate to personal property only; for as soon as the sand was severed from the real estate it became personal property.
This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law-writers. Besides, the plaintiff in this case, after alleging the above-mentioned wrongs, then asks for damages only for the wrongful conversion of the sand, which was personal property, and does not ask for damages' for injuries done to his real estate. He seems to waive all the wrongs and injuries done with reference to his real estate and to his possession thereof, provided the digging and the removal of the sand was any injury to either, and sues only for the value of [736]*736the sand which was converted. We think it is true as is claimed by the defendant, that the petition states facts sufficient to constitute a cause of action in the nature of trespass quare clausum fregit; but it also states facts sufficient to constitute a cause of action in the nature of trespass de bonis as-portatis, and of trover; and we think the plaintiff may recover upon either of these latter causes of action, for they are unquestionably transitory; although it must be conceded that he cannot recover upon the former cause of action, for it is admittedly local in its character, and because the plaintiff has brought his action in a jurisdiction foreign to the one where this local cause of action arose. But as the plaintiff' asks no relief pertaining specially to the local cause of action, but only such as may be given upon the facts of the transitory cause of action, we think he may recover.
All the old forms of action are abolished in Kansas. We now have no action of trespass quare clausum fregit,-nor of trespass de bonis asportatis, nor of trover; but only one form of action, called a civil action. (Civil Code, § 10.) And under such form of action all civil actions must be prosecuted; and all that is necessary in order to state a good cause of action under this form is to state the facts of the ease in ordinary and concise language, without repetition. (Civil Code, § 87.) And vrhen the plaintiff has stated the facts of his case, he will be entitled to recover thereon just wdiat such facts will authorize. (Fitzpatrick v. Gebhart, 7 Kas. 42, 43; Kunz v. Ward, 28 id. 132.) We now look to the substance of things, and not merely to forms and fictions. If the facts stated by the plaintiff would authorize a recovery under any of the old forms of action, he will still be entitled to recover, provided he proves the facts. If the facts stated would authorize one or two or more kinds of relief, he may then elect as to which kind of relief he will obtain; and the prayer of his petition will generally indicate his election. And if one kind of relief is beyond the jurisdiction of the court, and the other within such jurisdiction, the plaintiff may elect to receive that kind of relief which is within the jurisdiction of the court.
[737]*737We think the plaintiff may maintain his present action as an action in the nature of trespass de bonis asportatis, or tro-ver. When the sand was severed from the real estate it became personal property, but the title to the same was not changed or transferred. It still remained in the plaintiff. He still owned the sand, and had the right to follow it and reclaim it, into whatever jurisdiction it might be taken. He could recover it in an action of replevin, (Richardson v. York, 14 Me. 216; Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574;) or he could maintain an action in the nature of trespass de bonis asportatis, for damages for its unlawful removal, (Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 232;) or he could maintain an action in the nature of trover, for damages for its conversion, if it were in fact converted, (Tyson v. McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; Riley, v. Boston W. P. Co., 65 Mass. 11; Nelson v. Burt, 15 Mass. 204; Forsyth v. Wells, 41 Pa. St. 291; Wright v. Guier, 9 Watts, 172; Mooers v. Wait, 3 Wend. 104;) or he could maintain an action in the nature of assump-sit, for damages for money had and received, if the trespasser-sold the property and received money therefor, (Powell v. Rees, 7 Ad. & L. 426; Whidden v. Seelye, 40 Me. 255; Halleck v. Mixer, 16 Cal. 574.) See also in this connection the case of Fanson v. Linsley, 20 Kas. 235.
In all cases of wrong, the tort or a portion thereof may be waived by the party injured, and he may recover on the remaining portion of the tort or on an implied contract, provided the remaining facts will authorize such a recovery. Mr. Waterman, in his work on Trespass, uses the following language:
“ SbctioN 1102. Although as standing trees are part of the inheritance, and the severing them from it is deemed an injury to the freehold, for which trespass quare clausum fregit is the appropriate remedy, yet the party may waive that ground of recovery, and claim the value of the timber only thus severed and carried away. In the one case, the entering and breaking of the close is the gist of the action; in the other, the taking and carrying away of the property. In the latter case, the [738]*738action is transitory, and not local.” (See also Nelson v. Burt, 15 Mass. 204; Halleck v. Mixer, 16 Cal. 574.)
The plaintiff in error, defendant below, has cited a large number of authorities, but under our code of practice and procedure they hardly apply to the facts of this case. Those nearest applicable are the following: Am. Un. Tel. Co. v. Middleton, 80 N. Y. 408; Frost v. Duncan, 19 Barb. 560; Howe v. Willson, 1 Denio, 181; Sturgis v. Warren, 11 Vt. 433; Baker v. Howell, 6 Serg. & R. 476; Powell v. Smith, 2 Watts, 126; Uttendorffer v. Saegers, 50 Cal. 496. The case of The Telegraph Company v. Middleton, supra, was where the defendant committed a trespass by cutting down telegraph poles in a highway, and throwing them in the ditches and on the fences on the sides of the highway, and leaving them there. There was no asportation from the premises, no conversion, and no intended asportation or conversion; and the court held that the action was therefore trespass quare clausum fregit, and not trover, and that the action was therefore local in its character and not transitory. The case of Frost v. Dimean, supra, was not decided by a court of last resort; and the main question decided was that two causes of action were improperly joined in one count. Besides, in that case the defendants were in the actual possession of the land, claiming the same as their own under a deed. The next four cases were not decided under any reformed code of procedure, and we do not think that the seventh and last case cited conflicts with the views that we have expressed. The fact that the question of title to real estate was incidentally raised in this case makes no difference. See the cases heretofore cited, and especially Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574. The plaintiff was in possession, claiming to own the property, while the defendant was a mere wrongdoer, with no claim of interest in the land.
We have so far considered this case as though it made no difference whether the sand was severed from the real estate and carried away by one act only, or by two or more; nor do [739]*739we think that it can make any difference. Under any circumstances, the sand remains the property of the owner of the land until he chooses to abandon the same. We suppose that if the sand were severed from the real estate by one act, and then carried away by another, this proposition would not be questioned, and probably it will not be questioned even if the sand was severed and carried away by a single act; and if the sand remains the property of the owner of the real estate, as we think it does, there can be no good reason why he should not be entitled to all the remedies for its recovery, or for loss or damages for its injury, or detention or conversion, which he might have with respect to any other personal property.
The judgment of the court below will be affirmed.
All the Justices concurring.