Stockwell v. . Phelps , 34 N.Y. 363 ( 1866 )

The land from which the hay in controversy was cut, was, at the time of the cutting, in the actual possession of one Owen Wild, he claiming the premises as his own, and holding them adversely to the plaintiffs, who had the title in fee. While thus in actual possession, holding adverse to the plaintiffs, Wild sold and delivered the hay to the defendant, whereupon the plaintiffs brought replevin for the same. The referee held that the plaintiffs could not recover for the hay, and gave judgment for the defendant.

The judgment was right. Wild, when the action was commenced, was in the actual possession of the premises from which the hay in question was cut, claiming them as his own, adversely to the plaintiffs; and whatever right the plaintiffs might have had to maintain an action after obtaining possession of the premises, it is clear they had no right of action whatever when this one was commenced. Replevin, or an action in the nature of replevin, inthe cepit, can only be brought when trespass could be maintained, and that will only lie for an injury to land when the plaintiff is in possession (Brets v. Bahn, 3 Denio, 79; DeMott v. Hagerman, 8 Cow., 220); and Wild, being in the actual possession of the premises, claiming them as his own, is regarded as the owner as to all the world until after a judicial decision. The remedy of the plaintiffs was a judgment against Wild for mesne profits in an action of ejectment, or by action of trespass after having got possession of the land.

It may be, that the referee merely found as to the character of the possession of Wild at the time the hay was cut; and, by him, sold and delivered to the defendant. But that was a question of fact, and his finding is conclusive in this court that it was adverse to the plaintiffs. It is not our province to reverse questions of fact, but to take the facts as found by the original tribunal.

The judgment should be affirmed.