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“an adverse holding upon the part of the defendants that they were in possession of the land under a claim of right, and even should the court find that the instrument from Allen to Rose and Johnson conveyed an interest in the land, the deeds offered by the defendants should have been read in evidence under their plea of not guilty, to show how they were holding, and to show that if the plaintiff had any remedy, that this was not the proper remedy, and the remedy should have been 189 by ejectment." This objection should be considered in connection with the contentions presented by the first and second assignments of error, and the motion for new trial: “That the turpentine replevied was in the boxes on the trees, so attached to the land as to be a part of the realty and not subject to replevin; that in order to maintain replevin plaintiff must be the owner of, or in possession of, the property, and that the evidence does not show that the plaintiff was ever in possession of the turpentine that he sought to replevy."

The evidence in this case shows that the plaintiff never went into actual possession of the locus in quo; that he was engaged in the turpentine business in Walton county, and bought the land from Allen for that purpose, but before he needed the timber thereon the defendants, having bought the same land as we have seen, went into possession of it and boxed and chipped the trees. While the turpentine was in the boxes, in a state to be dipped up, it was replevied by plaintiff.

We agree with counsel that an action of replevin is one for the recovery solely of personal property, and cannot be maintained to recover real property: 4 Am. & Eng. Ency. of Law, 2d ed., 480. It is well settled, however, that turpentine in boxes, in a state to be dipped up, is personal property. It no longer forms a part of the tree, but has been separated by a process of labor and cultivation. The turpentine crop has been properly classed with fructus industriales, for it is not the spontaneous product of the trees, but requires annual labor and cultivation. As was said in State v. Moore, 11 Ired. 70: “If, like the sap of the sugar maple, its flow were directed into a vessel set on the ground near the tree, no one would doubt its being severed from the realty. Now, 190 this is the same in substance. For the box, though, in the tree, is

. but a more convenient receptacle for the turpentine, after it has been extracted or has been made to exude from the pores, which contained it, while in the tree, as a part of it. When it ceased to be a part of the tree it necessarily becomes chattel." Crude turpentine which has formed on the body of the tree, and is called scrape, is said to be personal property: Lewis v. McNatt, 65 N. C. 63. See, also, Branch v. Morrison, 5 Jones, 16, 69 Am. Dec. 770; Holt v. Holt, 57 Mo. App. 272; Brittain v. McKay, 1 Ired. 265, 35 Am. Dec. 738; State v. Moore, 11 Ired. 70.

The plaintiff, to recover in this action, must show right of possession in himself to the property replevied. He can only recover upon the strength of his own right of possession: Holliday v. McKinne, 22 Fla. 153.

In an action of replevin a plea of not guilty puts in issue not only the right of the plaintiff to the possession of the property replevied, but also the wrongful taking and detention thereof. Under such plea the defendant can give any evidence of special matter which amounts to a defense to the plaintiff's cause of action, to show that the property is not entitled to the possession of the property replevied: Holliday v. McKinne, 22 Fla. 153.

Where property which has been annexed to the freehold as severed therefrom, it becomes personal property so as to become recoverable by an action of replevin. But in order to maintain such action the plaintiff must have the actual or constructive possession of the land, and as the title to land cannot be tried, ex directo in replevin, if the series of acts in which the severance has occurred are sufficient to create an adverse possession in the defendant, 191 replevin cannot be maintained: Washburn v. Cutter, 17 Minn. 361; 7 Smith's Lead. Cases, 6th Am. ed., 604; Cobbey on Replevin, sec. 375. The possession here alluded to is something more than a mere act of trespass. It must be so long continued, and so far yielded to, as to constitute a possession to the exclusion of others—an occupancy, as distinguished from a mere act of trespass : Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710.

The owner in fee of wild land has the constructive possession thereof, unless there be an adverse possession: Washburn v. Cutter, 17 Minn. 361; Cobbey on Replevin, sec. 378. See Jenkins v. Lykes, 19 Fla. 148, 45 Am. Rep. 19. Thus it is stated in the section cited from Cobbey on Replevin: “Where the land was in the actual possession of W. under a claim of right and adverse to the plaintiff, who, it was held, had the title, and cut a quantity of grass and sold the hay to the defendant, on replevin brought by the plaintiff against the defendant, held, that as W. was in possession under a claim of right, he would be regarded as the owner until decreed otherwise, and that W. could convey a good title to the hay so sold. The courts have gone so far as to hold that where the

Am. St. Rep., Vol. 125—68

defendant was in possession of the land in good faith and severed property therefrom, the real owner could not maintain replevin therefor, basing it on the ground that the title to the land could not be settled in this way. Where there is no adverse possession, the owner of the land may always bring replevin, or he may always bring it against the trespasser.

" In Powell v. Smith, Watts (Pa.), 126, Gibson, C. J., said: “The principle which is to govern this case was settled in Mather v. Trinity Church, 3 Serg. & R. 509, 8 Am. Dec. 663; Baker v. Howell, 6 Serg. & R. 476, and Brown v. Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 660, in which it was determined on principle and authority that the right of property in a chattel 192 which has become such by severance from the freehold cannot be determined in a transitory action by a trial of the title to the freehold, because the title to the land might otherwise be tried out of the county. An action of trover or replevin for such a chattel, therefore, does not lie by a plaintiff out of possession. Independent of this technical inhibitory principle, which, however, is decisive, it would provoke much useless litigation and be attended with great practical mischief, if an owner out of possession were suffered to harass the actual occupant with an action for every blade of grass cut or bushel of grain grown by him, instead of being compelled to resort to the action of mesne profits, after a recovery in ejectment, by which compensation for the whole injury may be had at one operation”: See Anderson v. Hapler, 34 Ill. 436, and note thereto in 85 Am. Dec. 318; Harrison v. Hoff, 102 N. C. 126, 9 S. E. 638. In Mather v. Ministers of Trinity Church, 3 Serg. & R. 509, 8 Am. Dec. 663, Tilghman, C. J., said: “The explanation is, that he who has the general property in a personal chattel need not prove possession, because the law draws the possession of the property. But he who claims only a special property must prove that he once had actual possession, without which no specific property is complete. That the law draws the possession to the property, of personal chattels unconnected with land, may be true, and yet it does not follow that the possession is drawn in like manner to the property of that kind of chattel which was part of the soil until severed from it; when the soil itself, at the moment of severance, was held adversely by another. I should rather suppose that in such case he who had possession of the land had possession also of the stones dug from it, and against him another person who had the right to the possession of the land could not support trover, In order to constitute adverse possession as against the real owner, it must be such a possession as

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would, if continued for the period required by the statute of limitations, ripen into a perfect title and constitute a bar to the assertion of a legal title by the owner. The possession must be actual, visible, notorious, distinct and hostile: Washburn v. Cutter, 17 Minn. 361; 3 Washburn on Real Property, 3d ed., p. 122.

The occupation of pine land, by annually making turpentine on it, is such an actual possession as will oust a constructive possession by one claiming merely under a superior paper title: Bynum v. Carter, 26 N. C. 310. In Branch v. Morrison, 5 Jones, 16, 69 Am. Dec. 770, the court said: “In our case, however, suppose the land belonged to Blount's heirs, that does not give them a right to the turpentine which had been severed from the realty by the plaintiff's while they were in possession of the land; on the contrary, the turpentine, when by the labor and cultivation of the plaintiffs it was made personal property, became the property of the plaintiff's. So they are the true owners. The heirs of Blount, if they ever regain possession of the land, may have an action of trespass quare clausum fregit, 'for treading down grass,' against the plaintiffs, but they will have no right of action to recover this particular turpentine, either against them or the defendants, for they never had a right of property in it, and cannot acquire either a right of possession or of property in respect to it by the jus postliminii”: Brothers v. Hurdle, 10 Ired. 490, 51 Am. Dec. 400. It is there held that the owner of land cannot maintain trover for corn, fodder, etc., that had been raised on the land and severed while the defendant was in possession. The court said: “The amount of which would be, 194 when one who has been evicted regains possession, he may maintain trover against everyone who has bought a bushel of corn or a load of wood from the trespasser at any time while he was in possession. This, especially in a country where there are no markets overt, would be inconvenient, and no person could safely buy of one whose title admitted of question. The defendants' counsel took a distinction between things which are of annual cultivation, e. g., corn, and such as are of the natural growth of the earth, e. g., trees. This distinction makes a difference to this extent: the former is personal property for some purposes before severance, the latter is not; but after severance both species become personalty, and the same principle is applicable.” As was said in Washburn v. Cutter, 17 Minn.

361: “Such adverse possession must amount to a disseisin of the real owner. There must be an actual entry upon the land, with palpable intention to claim the possession as his

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own by the adverse claimant, and this claim of possession must be not the assertion of a previously existing right to the land, but the assuming of a right to the land from that time and a subsequent holding with assertion of right. This intention to claim and possess the land is one of the qualities indispensable to constitute a disseisin, as distinguished from a trespass." The effect of color of title, when an entry is made and possession taken and held in accordance with it, is to define the extent of the possession claimed; but the entry and possession must be proved by acts sufficient to constitute such adverse entry and possession: Washburn v. Cutter, 17 Minn. 361.

In the instant case the evidence shows that the plaintiff never went into actual possession of the locus in quo, never cut timber thereon, nor chipped trees, nor turpentined 105 them; that he saw the land after the trees were boxed“that was last winter, last box season. Since that time, and at the time the turpentine was replevied, the defendants were in the exclusive possession of the trees and the land, their employés were there, cutting the boxes in the trees, chipping them, and dipping the turpentine, and hauling same away in barrels. Defendants had boxed, and were working, between six and seven thousand trees at the time the writ of replevin herein issued, and plaintiff's knew this for months and did not enter. At the trial defendants offered the deeds under which they claimed to hold possession. These deeds were admissible to show claim of right, followed by proof of adverse possession, and as defining the extent of the possession claimed: Washburn v. Cutter, 17 Minn. 361. The plaintiff had the property in the trees, and also constructive possession thereof, as long as no one had actual possession thereof. His general property drew to it the possession and the right of possession. But this was not so if the defendants, under claim and color of right went into the exclusive, open, notorious, adverse possession of the locus in quo, acquiesced in for months by plaintiffs, and worked the trees, and by their labor and care made the crop of turpentine. Under such circumstances, plaintiff could not maintain this action of replevin.

5. The court charged the jury as follows: "If the jury should find from the evidence that has been introduced before them that the plaintiff was the owner of pine trees located upon lands described in the declaration by a conveyance from persons who derived title to the land by title from the United States government, and that the defendants were in possession, at the time of the institution of this suit, of crude

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