Bebee v. Hutchison , 56 Ky. 496 ( 1856 )

Judge Simpson

delivered the opinion of the court:

The appellants brought two actions, one against John Hutchinson, and the other against Joseph Hays, for entering upon their land, and cutting down and carrying away a large number of valuable timber trees. By the agreement of the parties both actions were tried at the same time; a jury was dispensed with, and the law and facts were submitted to the court.

Since the passage of the act of the 10th of March, 1854, (Ses. Acts, 1853 -4, page 167,) “the owner of land may maintain the appropriate action to recover damages for any trespass or injury committed there on, net wit hst a n d i n g such owner may not have the actual possession of the land at the time of the commission of the trespass. Legal seizin is all that is neceasary now tD maintain an action for trespass on lands.

Proof was introduced on the trial, tending to establish the commission, by the defendants, of the trespass complained of, but the court being of opinion that the plaintiffs were not in the actual possession of the land at the time of the trespass thereon, rendered a judgment for the defendants, in bar of the plaintiffs’ action.

We do not deem it necessary to decide whether or not the proof was sufficient to show that the plaintiffs were in the actual possession of the land at the time the trespass thereon was committed by the defendants ; for if actual possession had been necessary to authorize a recovery for entering upon the land and cutting down the trees, and the plaintiffs were not in the actual possession of the land, still they had a right to maintain their actions against the defendants for carrying away the timber after it was cut down. When it was cut down it became personal property, and was by legal construction in the possession of the owners, and they could maintain an action for its subsequent removal.

But an actual possession of the land by the plaintiffs, at the time of the commission of the trespass, was not necessary to enable them to maintain their actions to recover damages for the wrongful entry thereon by the defendants.

By an act to amend the Revised Statutes, title, “Inclosures and certain trespasses,” by adding an additional article, to be numbered article 3, approved March 10th, 1854, (Session Acts 1853-4, volume 1, page 167,) it was enacted “that the owner of any land in this state may maintain the appropriate ac tion to recover damages for any trespass or injury committed thereon, notwithstanding such owner may not have the actual possession of the land at the time of the commission of the trespass.”

This act changed the previous law on the subject of trespasses on real property, and as the actions were brought since the passage of the act, and the testimony adduced on the trial proved that the plaintiffs were the owners of the land, and if not actually, at least legally seized thereof, at the time of the commission of the trespasses, the court erred in deciding that they could not maintain their actions.

Wherefore, the judgment is reversed, and cause remanded for a new trial and further proceedings in conformity with this opinion.