Freeman v. Underwoood , 66 Me. 229 ( 1877 )

Peters, J.

A question raised by the defendants is, whether the demand made upon them by the plaintiff for the berries was sufficient. The answer is, that no demand was necessary. The persons who picked the berries from the land in plaintiff’s possession, were trespassers. They sold the berries to the defendants. The defendants received them at their factory for the purpose of “can-ning5’ them, as it is termed. The berries were of a rapidly decaying character, requiring immediate use, undoubtedly received from time to time, and it would have been quite impracticable to redeliver the property to the plaintiff, had he duly demanded the same. But the defendants, by their purchase and possession of the berries, although acting in good faith and in ignorance of the want of title in their vendors, assumed thereby an ownership and exercised a dominion over the property, which rendered them liable in trover to the true owner without any demand therefor. The following are some of the cases directly pertinent to this point. Galvin v. Bacon, 11 Maine, 28 ; Porter v. Foster, 20 Maine, 391; Hotchkiss v. Hunt, 49 Maine, 224; Stanley v. Gaylord, 1 Cush. 536; Riley v. Boston Water Power Co., 11 Cush. 11 ; Gilmore v. Newton, 9 Allen, 171; Bearce v. Bowker, 115 Mass. 129.

The defendants also deny that the writing to the plaintiff from Iiis wife conferred any right of action upon him, so that he could sue for the berries in his own name. But we think it clear that the writing amounts to an executory sale of the blueberries, which would make them his when picked from the bush, or perhaps when merely grown ; the writing also combining with the sale a lease of the land, which gave to the plaintiff a sufficient estate for the growing and supporting of the successive annual yields of berries thereon. This transaction was valid between the parties thereto as against all strangers. When the berries were taken from the bush by unauthorized persons, they were the property of the plaintiff. As to this point, see the following authorities: Cutler v. Pope, 13 Maine, 377; Trull v. Fuller, 28 Maine, 545 ; Farrar v. Smith, 64 Maine, 74; Stearns v. Washburn, 7 Gray, 187; Douglas v. Shumway, 13 Gray, 498; Claflin v. Carpenter, 4 Met. 580; Lamson v. Patch, 5 Allen, 586 ; Drake v. Wells, 11 Allen, 141. See also Wash. Real Prop., vol. 1, book 1, c. 1, on the nature and classification of real property.

Exceptions overruled.

AppletoN, C. J., WaltoN, DicxebsoN, Baeeows and YiegiN, JJ., concurred.