Martin v. Thompson.

for the use of the inhabitants of any county, etc., the taking of the water from the stream, above the land of the defendant, is a taking of an interest in real property in behalf of a public use. The land through, over, and upon which pipes, aqueducts, flumes, and ditches may be constructed or laid is not used by the public; the corporation uses the land for the conveying of water; the water, after having been conveyed, is taken by the public, and that point, strictly speaking, is where the public use commences; but both the water and the land are taken to the end that the public may be supplied with the one by the use of the other. In this case the plaintiff has already acquired the one, viz., places for its pipes, etc. (which are worthless and serve no purpose without water), and now it seeks to acquire the necessary water, such water, when acquired to be used in behalf of, for the benefit of, to the interest of, for the behoof of, ditches, etc., for conducting water for the use of the inhabitants of a village. See Worcester's Dictionary, "Behalf."

THORNTON, J., concurred in the judgment. KINSTRY, JJ., dissented.

MCKEE and Mc

MARTIN V. THOMPSON.

(62 Cal. 618.)

Crops-title to, on land held adversely.

No action lies to recover grain sown and harvested by one on lands to which he claimed title and of which he was in actual and adverse possession.

A

CTION to recover grain. The opinion states the case.

L. Aldrich and E. D. Wheeler, for appellant.

Mich. Mullany, for respondent.

THE COURT: The action is brought to recover the possession (or the value thereof) of certain grain sown and harvested by defendant upon lands to which he claimed title, and of which he had the actual adverse and exclusive possession. The action cannot be maintained.

In Halleck v. Mixer, 16 Cal. 574, a demurrer to the complaint

Martin v. Thompson.

had been sustained in the court below upon the ground that the complaint showed the title to land to be involved in such sense as precluded the action. The complaint alleged that the plaintiff's testator was seised and possessed of certain real estate at the time of his death, and that the executor, ever since his appointment, had been in possession of the same; that persons (whose names were not designated) had entered upon the lands without authority and cut down timber growing thereon, to the amount of three hundred cords; that defendant afterward also entered upon the premises, without authority, and removed the wood thus cut, and still detained it, etc. There was no suggestion or pretense that the defendant, or any other person than plaintiff and his testator, ever had possession of the land on which the wood was cut.

It was said by the Supreme Court, in reversing the judgment of the District Court, that the complaint in Halleck v. Mixer did not show title to the land to be involved in such sense as to preclude the action. "In all cases where the owner of real estate sues for property severed from the freehold, the action must rest upon the proof in the first instance of title or right of possession (or possession) taken previous in the plaintiff; and if the position of the respondent were tenable, no action for the recovery of said property would ever lie. If the complaint alleged the title, it would, upon his argument, be demurrable; if it merely alleged ownership of the property, the party would be excluded on the trial from the proof of his title, or be nonsuited on its production. The true rule is this: The plaintiff out of possession cannot sue for property severed from the freehold, when the defendant is in possession of the premises from which the property was severed - holding them adversely in good faith under claim and color of title; in other words, the personal action cannot be made the means of litigating and determining the title to the real property as between conflicting claimants. But the rule does not exclude the proof of title on the part of the plaintiff in other cases, for it is, as we have already observed, upon such proof that the right of recovery rests. A mere intruder or trespasser is in no position to raise the question of title with the owner so as to defeat the action." The court then cites with approval Harlan v. Harlan, 15 Penn. St. 513.

This was the case of Harlan v. Harlan : The plaintiff was the purchaser of certain real estate, being a cotton manufactory. Certain machinery in the mill passed to him as a part of the freehold.

Martin v. Thompson.

A fixture, part of the machinery, was detached by the former owner, and it was held that the purchaser of the real estate could maintain replevin for it.

Certain cases were cited by counsel as authority to the point that the action would not lie; but ROGER, J., commenting upon those cases, pointed out the distinction between them and the case then at bar.

In the case of Harlan v. Harlan, the title to the real property was not disputed by the defendant, and the court suggested that it might be that the mere assertion of a title would avail little. "The court looks to the substance, and where it appears in truth it is a trial of title, then it is properly ruled that replevin is not the proper action, but that it must be tried in another form."

To

It was said in Elliott v. Powell, 10 Watts, 453, as was also said in Halleck v. Mixer, supra, it is a mistaken supposition that title to real estate may not be incidentally tried in a transitory action, much less that replevin cannot be maintained where the plaintiff can make title to the chattel only by making title to the land from which it was severed. See also Heath v. Ross, 12 Johns. 140; Goff v. Hawks, 5 J. J. Marsh. 341; Player v. Roberts, Wm. Jones, 243. The cases cited by the Pennsylvania court in Harlan v. Harlan indicate the true rule. In Mather v. Trinity Church, 3 Serg. & R. 509; s. c., 8 Am. Dec. 663, it was ruled that trover for gravel from land does not lie by one who has the right of possession against one who has the actual adverse possession "and sets up title to it " that conflicting claims of title cannot be tried in the action of trover. the same effect, Baker v. Howell, 6 Serg. & R. 476; Brown v. Caldwell, 10 id. 114; s. c., 13 Am. Dec. 660. The cases go to the point that where the property sued for has been severed from plaintiff's land, he can show his ownership of the chattel by showing his ownership of the land, unless defendant has, and had when the property was severed from the freehold, adverse possession of the land, claiming title thereto. Of course, to exclude plaintiff's right to sue for the personal property, defendant must have the adverse possession, claiming title. If a tenancy or quasi tenancy exists, the defendant and occupant not claiming to be owner of the personal property, as owner of the realty, the reason for precluding the personal action does not exist. Harlan v. Harlan, supra; Farrant v. Thompson, 5 Barn. & Ald. 826; Mooers v. Wait, 3 Wend. 104; 8. c., 20 Am. Dec. 667.

VOL. XLV-84

Martin v. Thompson.

But we find nowhere (except in Kimball v. Lohmas, 31 Cal. 159), that with respect to the right of a plaintiff to resort to replevin, a distinction exists between a defendant in adverse possession of the land, claiming title by writing, and a defendant in adverse possession, claiming title without any written foundation for the claim. The distinction seems to have been suggested by a phrase employed in the opinion of Halleck v. Mixer, with reference to a holding adversely" in good faith," etc.

But the case now before us differs in two respects from Kimball V. Lohmas: 1. The defendant claims a right to the possession under color of title. 2. The grain, the subject of the present controversy, was sown while defendant was in the adverse possession of the land. It did not exist, even potentially, while plaintiff had possession of the land-if plaintiff ever had possession of the land.

The present is also unlike the case of Atherton v. Fowler, 96 U.S. 513. There the hay, the subject of controversy, was cut from the meadows set in grass by plaintiff's testator. And besides, in that case, the District Court of the State, "having given the law on the subject very clearly" (in favor of plaintiff's right to maintain the action), and inasmuch as it related to "a doctrine not affected by the Constitution or laws of the United States," the Supreme Court of the United States held, they "must take it to have been correctly expounded to the jury." 96 U. S. 515.

There is no precedent for an action like the present, and no good reason why this should be made a precedent.

We cannot say the court abused its discretion in disallowing plaintiff's motion to file a second amended complaint. It does not appear from the transcript that any proposed amendment was served or presented, or that the notice of motion pointed out the precise amendment which plaintiff would ask leave to make or file.

Judgment and order affirmed.

Order affirmed.

In junction — municipal authorities threatening to take land for street.

That the public authorities are proposing to extend a street over the com. plainant's wharf is no ground for an injunction.

ILL for injunction. The opinion states the case. Bill dismissed below.

BILL

A. Q. Keasbey & Sons, for appellants.

M. T. Barrett and J. Frank Fort, for respondent.

BEASLEY, C. J. The appellants claim to be the owners of a tract of land including about four hundred and twenty feet of the east bank of the Passaic river, opposite the city of Newark. In the year 1869, they applied to the chosen freeholders for a license to build a dock in front of such lands, and having obtained the requisite authority they erected that structure, and by force of the bill which they exhibited in this case, they sought to prevent the respondent,