immediate possession of the property.1 The complainant must be entitled to the immediate and exclusive possession of the property claimed, hence, one joint owner of personal property cannot maintain the action against a co-owner, for the reason that he would not be entitled to the exclusive possession. And mere naked possession will not support the action, with a general or special property in the plaintiff. But it is not necessary that the claimant should be the absolute owner of the property claimed; and if he has a special ownership in the property or an interest in it of a temporary and limited nature, if he had actual possession and has been deprived of it by the defendant, it is sufficient to enable him to maintain the action. While an agreement is executory, however, the action of replevin will not lie, and a vendee cannot maintain the action for the possession of the property to be sold on a mere agreement for a sale; the sale must be executed and the property in the chattel transferred, before the vendee can be properly said to be entitled to the possession; until that time, his only remedy would be an action for damages for

an incident inevitable to the grant of the right to take salt water was lawful, as was their possession of it, after it was raised to the surface." Kier v. Peterson, 41 Pa. St. 357; reversing Peterson v. Kier, 2 Pgh. 191.

1 Fleming v. Clark, 22 Mo. App. 218. "A licensee cannot maintain replevin for ore severed from the land which he is working under license, by a stranger or trespasser, for he is not and never was, entitled to the exclusive possession of the same." Gillett v. Treganza, 6 Wis. 343.

2 Lisenby v. Phelps, 71 Mo. 522; Pulliam v. Burlingame, 81 Id. 111; 53 Mo. 397. But see Melton v. Lombard. 51 Cal. 258.

3 Manfg. Co. v. Bean, 20 Mo. App. 120; Wright v. Richmond, 21 Mo. App. 76; Gartside v. Nixen, 43 Mo. 138; Alden v. Carver, 13 Iowa, 253. But the right to possession alone will support the action against a trespasser. Cobbey on Rep., § 86, p. 52; Mead v. Kilday, 2 Watts (Pa.),110; Holliday v. Lewis, 15 Mo. 403.

4 Gartside v. Nixon, 43 Mo. 138; 5 Mo. App. *584; Bayard v. Jones, 9 Humph. (Tenn.) 739; Harlan v. Harlan, 53 Am. Dec. 612.

5 A contract cannot be enforced by the action of replevin. Cobbey on Rep. 289.

breach of the contract.1 It is also necessary for the maintenance of the action that the defendant should have been in possession of the property at the commencement of the action and where it does not appear that he was in possession when the suit was brought, and there is no evidence going to show a wrongful seizure of the property, there is no foundation for a judgment and the action could not be maintained. And where there is a conflict of testimony as to the possession of the defendant at the time of the commencement of the suit, it is error for the court to instruct the jury that his possession at any time prior thereto is sufficient.3

§ 572. Same- - Licensee cannot maintain. While the question of title to land cannot be tried and all that is necessary to maintain the action is the right to possession of the mineral,5 since a right of possession is essential, a mere licensee cannot maintain the action, unless he also has a right to the possession of the ore. But if the licensee

1 Cobbey on Rep. 289, cited supra; Curry v. Schmidt, 54 Mo. 515. 2 The rule as laid down by Mr. Cobbey is that the defendant must be in actual or constructive possession. Cobbey on Rep., §§ 431-3. Must be in control of the property. Cobbey, § 134 and cases; Id. 64–5; 132; 443.

3 Rogers v. Davis, 21 Mo. App. 150; 3 M. A. 454; 5 Id. 565.

4 Green v. Ashland Co., 12 M. M. R. 692.

5 Wilkinson v. Stewart, 13 Id. 1.

6 Gillett v. Treganza, 6 Wis. 343; Rochester v. Min. Co., 86 Mo. App. 447. A licensee cannot maintain replevin for ore severed from the land which he is working under license, by a stranger or trespasser. Gillett v. Treganza, 6 Wis. 343; M. M. D. 314. "The lessor, not the lessee (of ground leased for farming purposes only), has the right of action for stone quarried and taken from the leased ground during the term, by a stranger." Freer v. Stotenbur, 2 Abb. App. (N. Y.), reversing 36 Barb. 641. "And this, although the lessee had a license to take stone indorsed on his lease of the farm at the time of its delivery." Id.; M. M. D. 204.

also has a property interest in the ore, either general or special, then he could maintain the action, as against a mere wrong-doer.1

The plain

§ 573. Action on bond. As explained in a former section, replevin is purely a statutory action, and the method of procedure in the different States is so clearly defined, it is not deemed necessary to discuss the practice, tiff is required to deposit a bond, the exact conditions of which vary in the different States, for the diligent prosecution of the action, and an obligation to respond for any unnecessary delay, and compensate the defendant for any injury resulting from the plaintiff's negligence.2 The words usually employed are that he will prosecute his action without delay and with effect." The plaintiff is

bound to use due diligence in the prosecution of his action, and for any negligence or delay in this respect, is responsible under the obligation of his bond, which requires him to prosecute without delay and with effect. To prosecute the action with effect has been construed to mean that the plaintiff must not only proceed to a decision of the cause, but that he must also succeed in the action.5 But in those States where the action is held to abate with the death of the defendant, this condition of the bond is saved when the

1 Henley v. Wood, 2B. & Ald. 736; Springfield Foundry Co. v. Cole, 130 Mo. 1. Where the title to the ore remains in the landowner until royalty is paid, and licensee only receives a per cent of the mineral, the landowner can maintain replevin for the ore mined as against the licensee. Empire Zinc Co. v. Freeman, 75 Mo. App. 524.

2 See, as to most usual conditions of bonds in replevin, and what is construed a breach thereof, Cobbey on Rep., §§ 1250-1259.

3 Ante, idem.

4 Cobbey on Rep., §§ 1269 and 1281.

5 Chapman v. Crabtree, 72 Maine, 473, cited by Cobbey, §§ 1353-4; see also Cobbey, § 1253.

1

suit is prosecuted until the defendant dies, although it would be otherwise, where the action does not abate with defendant's death.1 A bond to the replevying officer is void when the statute requires that it should be given to the defendant; 2 where the sureties are insolvent the defendant may proceed against the replevying officer on his bond, and in such case the sureties could be introduced to prove or disprove the question of their solvency.3

1 Taylor Land. & Ten., § 742. As to what would be unnecessary delay, depends upon the facts of each particular case. Cobbey on Rep., § 1252. 2 Ten. v. Harrington, 54 Miss. 732; Cobbey on Rep., § 685.

3 Jeffrey v. Bastard, 4 A. & E. 823. not liable. Cobbey on Rep., § 689.

And if good when taken, sheriff is

CHAPTER X.

MINERS' AND MECHANICS' LIENS.

SECTION 574. Nature of the remedy.

575. When statute given retroactive force.

576. How lien enforced.

577. What complaint should show.

578. Who can file lien.

579. Same-Labor and materials.

580. Same-Partners and cotenants.

581. Prevented by assignment of debt.

582. Time for filing lien.

583. Character of work necessary.

584. Character of owner's title.

585. Same Against lessee.

586. Same Will not lie against improvements made by

licensee.

587. To what property lien attaches.

588. Same-Character of improvement and nature of annexation essential.

§ 574. Nature of the remedy. Nearly all of the States, where mining is carried on to any great extent, have provided by State legislation for the payment of mine employees, by giving them a statutory lien, upon the mine and mining property, for the labor performed upon the same, and have provided the manner in which this lien can be enforced.1 The courts, generally, lean to a liberal construction of the lien law, in order that the miner and mechanic may have the full benefit of these statutory provisions, and the mere fact that the statute does not extend

1 See Statutes at Large, R. S. U. S., § 2332; Wade's Am. Min. Lawe, pp. 221 and 222.

2 Hays v. Mercier, 22 Neb. 656; 35 N. W. 894; White Lake &c. Co. v. Russell, 22 Neb. 126; 3 Am. St. Rep. 262; Dugan Cut Stone Co. v. Grey, 114 Mo. 500; DeWitt v. Smith, 63 Mo. 263-266; Skyrure v. Occidental &c. Co., 8 Nev. 219.