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 193 trover." In order to constitute adverse possession as against the real owner, it must be such a possession as

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 plaintiffs 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 plaintiffs. 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

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 195 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 plaintiffs 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

turpentine in the boxes located 196 on this land, and they were not there with the plaintiffs' consent-that is, they were not in possession with the plaintiffs' consent then the jury should ascertain how much of the turpentine there was, and its value, and render a verdict for the plaintiff for the amount so found." From what we have said, this charge was erroneous and misleading. If the defendants were in adverse possession, claiming under color of right, and were not trespassers, plaintiffs could not recover.

For the errors found the judgment is reversed.

Taylor and Hocker, JJ., concur.

Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.

Growing Trees are Regarded as a Part of the Realty by most authorities, and hence a contract to sell or convey them is within the statute of frauds: Ives v. Atlantic etc. R. R. Co., 142 N. C. 131, 115 Am. St. Rep. 732, and cases cited in the cross-reference note thereto.

The Question of When Replevin is Sustained is the subject of a note to Sinnott v. Feiock, 80 Am. St. Rep. 741. Growing grass, vegetables and fruit are usually regarded, if not severed from the land, as partaking of the nature of realty: Matter of Chamberlain, 140 N. Y. 390, 37 Am. St. Rep. 568; Kirkeby v. Erickson, 90 Minn. 299, 101 Am. St. Rep. 411; Sparrow v. Pond, 49 Minn. 412, 32 Am. St. Rep. 571; note to People v. Miller, 88 Am. St. Rep. 591. But in Cannon v. Matthews, 75 Ark. 336, 112 Am. St. Rep. 64, growing strawberry plants attached to the soil are held to be personal property, and the subject of replevin.

Crude Turpentine which has run from the body of the tree above into boxes which were cut into the tree to serve as receptacles is the subject of larceny: Dickens v. State, 142 Ala. 49, 110 Am. St. Rep. 17.

WESTERN UNION TELEGRAPH COMPANY v. MILTON. [53 Fla. 484, 43 South. 495.]

PLEADING Sufficiency of Allegations of Damages Against Telegraph Company.-Where a declaration alleges that for reward and hire the defendant telegraph company received from plaintiff for transmission a message reading: "Bought for your account today's limit 175. Am doing my best to rush bill lading"; that defendant in its transmission negligently and carelessly substituted "125" for "175," whereby plaintiff lost certain sums of money by reason of a third person not accepting certain cotton purchased for him under circumstances set forth in the declaration, it states a cause of action for at least nominal damages. (p. 1083.)

PLEADING Demurrer to Allegations for Damages.-In an action on the case for damages, if the declaration makes a case entitling

plaintiff to any recovery whatever, though it be only nominal damages, a demurrer will not lie thereto, even if the declaration claims other or greater damages than the cause may legally entitle the plaintiff to recover. A demurrer is not the proper way to test the extent of the recovery to be had, since such questions are properly raised and settled by objections to testimony at the trial, or by instructions to the jury, or by requiring the declaration to be reformed under section 1043, Revised Statutes of 1892, and section 1433, General Statutes of 1906, when it is calculated to embarrass a fair trial of the case. (p. 1083.) PLEADING-Extent of Damages Recoverable. - Where a declaration claims damages amounting to five hundred dollars, if the declaration states any cause of action, damages not exceeding five hundred dollars could be recovered thereon. (p. 1083.)

TELEGRAPH COMPANIES-How Duty to Transmit Messages Promptly is Created. The authority, franchises and privileges which a telegraph company must have and exercise in serving the public, and without which it cannot render the service, are conferred by law for the purpose of providing for the public the prompt transmission and delivery of a correct copy of messages. (p. 1084.)

TELEGRAPH COMPANIES Their Duty to the Public.-In undertaking to render the public service by virtue of the franchises and privileges conferred upon it by law, a telegraph company assumes the duty to transmit messages with care and skill and to deliver a correct copy of messages received for transmission. The compensation allowed by law to be received by the company for its services in that respect is allowed and received for a careful and skillful transmission of such messages and the delivery of correct copies of the messages transmitted. (p. 1084.)

UNREPEATED TELEGRAMS-Effect of Printed Blank Provisions Limiting Damages to Price of Transmission.—In receiving a message and taking the price of transmission, a telegraph company undertakes to send and deliver it correctly, and if it fails in doing so without legal excuse, it cannot avoid its liability for such failure on the ground that the sender used a printed blank in delivering the message to it, which provided that the company "shall not be liable for mistakes and delays in the transmission or delivery of any unrepeated message"; that is, a message telegraphed back to the originating office for comparison. (p. 1085.)

TELEGRAPH COMPANIES are Entitled to a Reasonable Compensation, by law, for the services which they render, and the amount charged for transmitting the message should be a reasonable compensation for the complete performance of the service undertaken-i. e., the transmission and delivery of a correct copy of the message received for transmission. (p. 1086.)

NEGLIGENCE-Proximate Cause.-In cases where losses have been sustained by reason of the negligence of another, damages may be recovered for losses that would likely or probably result where such negligence is a proximate or directly contributing cause of the loss, and the plaintiff is not at fault. (p. 1989.)

A PROXIMATE CAUSE is One that leads to or produces or directly contributes to producing the result or loss. If the loss is not such as would likely or probably result from the negligence of the defendant, he is not liable, since he can ordinarily be held responsible only for the probable results of his negligence which he should have foreseen. (p. 1090.)

TELEGRAPH COMPANIES-Damages Recoverable.-In an action in tort against a telegraph company for the breach of a public duty in negligently transmitting an incorrect copy of a message de