Carson v. Hanawalt , 50 Ind. App. 409 ( 1912 )

Myers, J.

— On November 22, 1909, appellant commenced this action against appellee, charging the latter with the conversion of certain drain tile. '

A demurrer for want of facts was sustained to the complaint, and appellant refusing to plead further, judgment was rendered against her, and in favor of appellee. The sufficiency of the complaint to withstand the demurrer is the question presented.

From the complaint it appears, among other things, that appellant was for many years the owner and in possession of certain described real estate in White county, Indiana, and on which, for several years, there existed a tile ditch, regularly established and constructed by the board of commissioners of said county under the drainage law then in force, for the purpose of draining said land and other lands assessed to pay for its construction. In the year 1909, said board of commissioners, pursuant to the drainage law in force April 10, 1907, established and ordered constructed over appellant’s said land, and along the line of the aforesaid tile ditch, a new ditch, for the construction of which the contract was awarded to appellee; that appellee, in the performance of said contract, entered on the land of appellant, excavated and removed the soil and tile along the line of the old ditch to the land of appellant bordering on th.e new ditch, where the tile remained for several days, as á part of such excavation; that while the tile so remained, appellant informed appellee that she was the owner of them, that they were in her possession, and forbid him removing them from her land, but appellee, disregarding appellant’s warning, without any right or title thereto, removed said tile from her said land, and out of her possession, and wrongfully converted them to his own use; that the old tile were not taken into account by the drainage commissioners, nor mentioned in the plans and specifications for the new ditch, neither wer® they considered in the contract with appellee, nor used in the new construction; that appellant was the owner of and. entitled to the possession of said tile, which were of the value of $314.33 at the time of their conversion by appellee. Appellant’s demand on appellee for a return of the tile, and possession of the same, was refused, and her title to, interest in and right of possession denied.

1. 2. 3. This action is for conversion — trover at common law — and as the complaint directly alleges that appellant is the owner and was in possession of the chattels in question at the time of their conversion by appellee, in this respect it states a cause of action. Swope v. Paul (1892), 4 Ind. App. 463, 31 N. E. 42; Easter v. Fleming (1881), 78 Ind. 116; Day v. Watts (1884), 92 Ind. 442. The additional allegation showing that appellant was damaged by the alleged conversion is not as perfect as good pleading would seem to require, yet it does appear that the property converted was of the value of $314.33. This allegation, in connection with the allegations ¿S ownership, possession and conversion, has been held sufficient as an allegation showing damage in the amount of the value of the property. Ryan v. Hurley (1889), 119 Ind. 115, 21 N. E. 463. Therefore the complaint in this case must be held sufficient, unless it can, he said that the specific facts alleged overcome the general allegations to which we have referred. If the specific facts' as to ownership are influential, and their full import be conceded, and they be construed most strongly against the pleader, still appellant is shown to have a positive interest, and while it may have been special or qualified, yet it was such an interest in the tile as could be destroyed by the wrongful act of appellee, and sufficient to sustain an allegation of ownership. Day v. Watts, supra.

4. 5. 6. In this case the tile in question were originally paid for out of the fund derived from assessments levied on the land of appellant, and other lands benefited by the improvement then made. The construction of the new ditch, under the facts disclosed, must be regarded as an abandonment of the old one, and whatever may have been the character of the tile, whether real estate or personal property, while in the ground, it is certain that after they were taken out of the old ditch they were personal property. In this connection we may say, there are no facts which will serve to give appellee any title or interest in the tile whatever. His contract provided that he should construct a ditch located along the line of the one from which the tile in question were removed, according to certain plans and specifications, for a specified sum of money. Such are the allegations of the complaint, and for the purposes of the demurrer they must be taken as true. As to appellant, she had an interest in the tile, and whether that interest extended to complete ownership, or as a tenant in common with the other landowners whose lands had been assessed to pay for the same, is not important-, for the reason that the tile, in or. out of the ditch, were on her land, and in her possession as fully as the excavated soil left there from the new construction. If she were the owner of the tile as alleged, and such tile being in her possession, the wrongful appropriation and conversion by appellee to his own use of such tile would amount to actionable conversion, or if appellant were the owner of the tile as a tenant in common, her interest would be destroyed by the alleged tortious acts of appellee, and she would be entitled to maintain this action. The fact that the tile belonged to appellant and others could not be used by a stranger as a defense in an action against him for conversion. Collins v. Ayers (1877), 57 Ind. 239.

7. Our attention has been called to the case of Louisville, etc., R. Co. v. Hart (1889), 119 Ind. 273, 21 N. E. 753, 4 L. R. A. 549, as supporting the proposition that if the property converted was owned by tenants in common, an action by one of the tenants for conversion would not lie. That case is distinguishable from this case in that the gist of that action was negligence, while in this ease negligence, active or passive, is not an essential element, for the essence of conversion! is the wrongful deprivation of personal property to the owner. In actions of this character the rule in this State requires the claimant to have a right of property, either general or special, and possession, or the right of immediate possession at the time of conversion. Redman v. Gould (1845), 7 Blackf. 361; Swope v. Paul, supra.

8. In this case appellant was in possession of the chattels, and having a general or special interest in them, her damages as against her coowners would he the value of her interest only, hut as against a stranger she will he entitled to their full value, holding the surplus in excess of her interest as a trustee for other owners. Jellett v. St. Paul, etc., Ry. Co. (1883), 30 Minn. 265, 15 N. W. 237.

The case of Smittle v. Haag (1908), 140 Iowa 492, 118 N. W. 869, on account of a code provision of that state (Acts of Iowa 1904 p. 68, §26), and its particular facts, is not an authority in this ease.

Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

Note. — Reported in 98 N. E. 448. See, also, under (1) 38 Cyc. 2068; (2) 38 Cyc. 2071; (3) 38 Cyc. 2048, 2068; (4) 31 Cyc. 333; (5) 38 Cyc. 2052; (6) 38 Cyc. 2062; (7) 38 Cyc. 2044; (8) 38 Cyc. 2089.