But the statutes of the different States are easily consulted, and as the procedure in this action in the different States is clearly defined therein, it is deemed unnecessary to discuss the statutory changes further.

§ 565. For what it will lie. Replevin will lie for any species of personal property that has been unlawfully taken or detained, and the person claiming such property in the possession of another, may maintain the action, although he may never have been in possession of the property, and whether his property in the goods be absolute or qualified, provided he has the right to the immediate possession.1 But the action will not lie for the purpose of trying the title to land, or to anything included under the term lands, tenements and hereditaments.2 The writ will not justify the officer executing it to sever and deliver the possession of fixtures, nor can the possession of a building erected on leased land be recovered by this action.'

§ 566. Same Buildings and timber. Where a building has been wrongfully removed from the land, the action of replevin can be maintained to enable the owner to recover possession of the same.5 A person not in

Rep., § 22 and cases. Where mineral is replevined under one writ, a seizure under a second writ, while the ore is in custodia legis, should be quashed, on motion. Morris v. De Witt (5 Wend. N. Y. 71); 12 M. M. R. 680.

1 Morris on Rep., p. 77, and citations.

2 Green v. Ashland Iron Co., 62 Pa. St. 97.

3 Ewell on Fixtures, p. 417 and cases. But fixtures constructively or actually severed may be recovered by this action. Ewell on Fixtures, p. 416.

4 Nor would the action lie in any case while it was annexed to the realty as a fixture. Ewell on Fixtures, p. 415 et sub.

5 Heaton v. Findlay, 12 Pa. St. 307; Ogden v. Stock, 34 Ill. 522; Mills v. Redick, 1 Neb. 437; Heubschman v. McHenry, 29 Wis. 655; Ewell on Fixtures, supra.

2

possession of land cannot recover the possession of timber taken from the land, or mineral removed from the soil by one in actual possession of the land, with a claim of title to the same.1 But the action could be maintained for the recovery of such property, if the person who removed the same were but a mere trespasser, without the right to the permanent possession of the land, even though the owner was not in actual possession of the same. And one in possession of land with claim of title, or one having the right of possession, which accompanies the legal title of wild and uncultivated land, can maintain the action of replevin for the recovery of such property wrongfully removed from the land, even though the same may be worked into a different form, which would materially increase the value of the property. In laying down this proposition, it is presupposed that the property still remains in the hands of the first taker, or some one who takes with notice, for if bona fide holders should acquire intervening rights, the action could not be maintained.4

1 Heaton v. Findlay, supra; Page v. Fowler, 39. Cal. 412-416; Powell v. Smith, 2 Watts, 126; Harlan v. Harlan, 15 Pa. St. 507. "The personal action cannot be made the means of litigating and determining the title to real property, as between conflicting claimants." Ewell on Fixtures, p. 418.

2 A mere trespasser cannot raise the question of title so as to defeat the action by the owner, and the court will look into the case to see if there is in reality a title to try. Page v. Fowler, 39 Cal. 412 et sub.; Kimball v. Lohmos, 31 Id. 154; Ewell on Fixtures, supra. Replevin will lie for stone taken from the bed of a stream. Brofay v. Bressler, 13 M. M. R. 163. Fixtures removed from the realty, cannot be recovered by a mortgagee, who claims that they passed to him, under a mortgage of the real estate. Moore v. Moran, 89 N. W. Rep. 829.

8 Morris on Replevin, p. 56 et sub.; Cobbey on Replevin, § 390 and

citations.

4 Cobbey on Rep., § 396, p. 206, where the rule is said to be that if an innocent purchaser, for value changes the form and adds to the value, the action of replevin will not lie, but the owner would be compelled to

§ 567. Same-For recapture of mineral. When mineral has once been severed from the land, like other produce of the soil, the character of the property is changed from realty to personalty, and an action of replevin can be maintained for its recovery in that condition.1 The nature of the property is so far changed after its severance from the soil that it can be the separate subject of taxation against the owner thereof, although the title to the land is in another, and it is the proper subject of replevin, even in its raw and uncleaned state, notwithstanding the adhesion of the earth thereto. But replevin will not lie for min

sue in damages for the value prior to the change, and could not appropriate the skill and labor added to the original material innocently, and it is certainly a just rule. "The measure of damages for the conversion of standing timber held to be value of the timber standing at the time of conversion." Chappell v. Puget Sound Reduction Co., 67 Pac. Rep. 391 (Wash. 1902).

1 Grubb v. Bayard, 2 Wall Jr. (C. C.) 81; Wait's Act. & Def., Vol. 4, p. 440. But the ore must be definitely described and a writ for "about 400 tons of iron ore, commonly called bog ore," is so indefinite as to justify a refusal to execute it. De Witt v. Morris, 13 Wend. (N. Y.) 496. 2 Forbes v. Gracey, 94 U. S. (4 Otto) 762.

3 Green v. Ashland Iron Co., 62 Pa. St. 97. But a second writ will not lie for ore previously replevined, for the property is already in custodia legis. De Witt v. Morris, 5 Wend. 71. "Held, that replevin would lie for its possession unwashed, notwithstanding the adhesion of the earth." Green v. Ashland Iron Co., 62 Pa. St. 97; M. M. D., p. 314. The locator of a claim upon the public land of the United States can replevin mineral removed by him, for as soon as the mineral is removed, it becomes personalty; the title vests in the discoverer and the one whose labor has produced it, and the ownership of the land, by the government, will not prevent the action. Forbes v. Gracey, Con. Vir. Min. Co., 94 U. S. 762; 24 L. P. C. Co. 313. The finder of gold on the public land, has such a title, under Sec. 2319, R. S. U. S., as to enable him to recover it from anyone who wrongfully dispossesses him of his discovery. Burns v. Clark, 133 Cal. 634. Under the Missouri practice the title to ore excavated by a licensee is held to be in the landowner, unless a different rule is provided for, and a purchaser from the lessee cannot maintain replevin from a purchaser from the landowner. Chitwood v. Zinc Co., 93 Mo. App. 225.

eral before it has been severed from the land, for it is then a part and parcel of the realty, and if the writ is levied upon ore not severed until after the writ issued, the action must fail. And in such case it may be inquired as to what hour the ore was severed and when the writ was issued. And if the ore was taken out and raised on the same day, the rule that parts of a day are to be disregarded cannot apply to validate a writ of replevin issued at a time before the ore had been severed.2

§ 568. Measure of damage for removal of ore. Where the ore is wrongfully removed and appropriated without claim or color of right and in derogation of the rights of the owner, the proper measure of damage is said to be the value of the ore taken, after it is severed from its native bed, without deducting the expense of severing it," and this rule of damage has been applied where the defendant knew, or had the means of knowing that the

1 Knowlton v. Culver, 1 Chand. (Wis.) 214; Ecker v. Moore, 2 Chand. (Wis.) 85.

2 "Replevin will not lie for ore before it is severed. And if the writ is levied upon ore not severed until after the writ issued the action must fail. And in such case it may be inquired as to what hour the ore was severed when the writ was issued, and the ore broken and raised on the same day, and the rule that parts of a day are to be disregarded, cannot apply to validate a writ of replevin issued at a time when the ore was not broken." Knowlton v. Culver, 1 Chand. (Wis.) 214; Mor. Min. Dig., p. 314. "A writ of replevin for about four hundred tons of iron ore, commonly called bog ore,' is so indefinite as to justify a refusal to execute it." De Witt v. Morris, 13 Wend. (N. Y.) 496. "To what amount the word 'about' would limit or extend the number of tons considered." Id. Mor. Min. Dig. 314. But it can be maintained for slate taken by an adverse occupant of quarry. Brown v. Caldwell, 12 M. M. R. 674; Mather v. Trinity Church, 14 M. M. R. 472; Anderson v. Hapler, 34 Ill. 436; Page v. Fowler, 28 Cal. 605. Where lessor has lease on ore mined for royalty, he can replevin from a purchaser of the lessee who takes with notice. Iron Duke Mine v. Brastad, 112 Mich. 79; 70 N. W. Rep. 414. As to right of lessee to possession of broken mineral,

title was not in him.1 But, if the ore is removed under color and claim of right, in good faith, or by a mistake as to boundaries, the measure of damages to the owner is confined to the actual value of the ore in place, or the value as severed, less the expense of carriage and severance.2 The existence of the difference in the measure of damage in the two cases is founded upon apparently just and equitable reasons, for as the wrong-doer, in the one case, should not be allowed to claim any benefit or pecuniary exoneration from the effects of his wrongful act, merely because it resulted advantageously to the injured party, so, in the other case, an innocent party, acting in good faith, should not be made to suffer an outlay, to the benefit of one whose rights were practically enforced, without subjecting him to an outlay on a right he believed to be his own. This distinction in the enforcement of the rule for damages, however, is not recognized in the courts of all the States, for in some it is held an excuse of mistake or supposed right cannot justify a trespass, in the sense of affecting the injured party's right to damages,3 and in others it is held

see In re Huddell, 16 Fed. Rep. 373; Likens Valley Co. v. Dock, 62 Pa. St. 232. "The owner of land may maintain detinue or replevin for oil extracted from a well on his freehold. The oil is his property and the severance does not destroy his title nor defeat his recovery." Hail v. Reed, 15 B. Monroe (Ky.), 479; M. M. D. 252.

1 Wild v. Holt, 9 M. & W. 672; Barton Coal Co. v. Cox, 39 Md. 1; Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 3 Q. B. 278.

2 Hilton v. Woods, L. R. 4 Eq. 432; Wood v. Morewood, 3 Q. B. 440; Corey v. Bright, 58 Pa. St. 70; McLane Co. Coal Co. v. Long, 81 Ill. 363; Torcite v. Wells, 41 Pa. St. 291; Austin v. Coal Co., 72 Mo. 535. To show good faith of defendant, as affecting the measure of damages, it is proper to admit a deed in evidence to the property on which the conversion occurred, although such deed was void. Acre v. Buford, 31 South. Rep. 898. But see following: "Evidence of the defendant's intent, in taking the ore, in replevin for mineral taken, is wholly immaterial." Ecker v. Moore, 2 Pinney (Wis.), 425; 12 M. M. R. 685.

3 Maye v. Yappen, 23 Cal. 306; Robertson v. Jones, 71 Ill. 405. But,