Tyson v. McGuineas

25 Wis. 656

• Court: Wisconsin Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Cole, J.

The first point made upon the brief of the counsel for the defendants to sustain the nonsuit is, that the cause of action proven was local and not transitory, and could only be prosecuted in Manistee county, in the state of Michigan, where the realty, alleged to have been injured, is situated. The cause of action stated in the complaint is, for appropriating and converting by the defendants, to their own use, three million feet of pine timber and saw logs, the property of the plaintiffs. To sustain this cause of action, various witnesses were sworn upon the part of the plaintiffs, who gave evidence tending to show that these logs were cut upon lands belonging to them in Michigan. But the cause of action relied on is manifestly not trespass to the realty. It is not claimed that there can be any recovery for damages to the real estate in this action. But it is said, in answer to the objection that the action is local, that as soon as the trees and timber were severed from the realty they became personal property, and that trover will lie against any one removing and converting them. The authorities cited by the counsel for the plaintiffs certainly establish the principle, that when the trees on the plaintiffs’ land were severed from the freehold and carried away, they became personal property, and that an action of trover might be maintained for their value. Whidden v. Seelye, 40 Maine, 247; Moody v. Whitney, 34 id. 563 ; Pierrepont v. Barnard, 5 Barb. 364; Sampson v. Hammond, 4 Cal. 184, and cases there cited. It must be admitted that trover is a transitory action, and may be maintained in this state for a conversion of personal property in another state. Whidden v. Seelye, supra; Glen v. Hodges, 9 Johns. 66; 1 Chitty’s Pl. 269 ; Grould’s Pl. Ch. 3.

The answer in this case alleges that the defendants had a license from Delos L. Filer, one of the firm of Filer & Tyson, to cut these logs, in compensation for a trespass committed by that firm upon their land. This answer, however, raises no question of title to real estate. There is nothing to show that the license was not revocable at any time by the plaintiffs. If the license was revocable at pleasure, it would create no interest in land, and would only serve as a justification for acts committed while it subsisted. Duinneen v. Rich, 22 Wis. 550; 2 Am. Leading Cases, 740, 741. But we cannot assume, from the matters stated in the answer, that'the license, even if it extended to the logs in controversy, was irrevocable ; or, that the authority granted by it was effectual for the purpose of giving the defendants any interest whatever in the land. The answer, therefore, does not raise any question of title to real estate, so as to defeat the action on the ground that it is local.

It is further insisted there was an utter absence of all proof as to the conversion of the logs and timber by the defendants, and, therefore, that the nonsuit was proper. There was evidence, however, sufficient upon that point to carry the case to the jury, independent of the matters stated in the answer, which seem to admit that the logs were taken from the plaintiffs’ land.

The counsel for the defendants does not claim that the cause of action set out in the complaint could not lawfully be transferred by assignment, so as to enable the assignee to enforce it in his own name. It would seem that, generally, all such rights of action for a tort as would survive to the personal representatives may be assigned so as to pass an interest to the assignee, which he can now assert in his own name under the code. Jordan v. Gillen, 44 N. H. 424, and authorities cited on the brief of the counsel for the plaintiffs.

By the Court. —The judgment of the county court is reversed, and a new trial awarded.