January 1, 1875, 'and on divers other days from time to time continuously between that day and' and May 4, 1885, sundry persons for the benefit of the defendant cut and removed and sawed into logs a large quantity of timber, taking and converting it to the defendants' use. This was held by the court to be a single action, with trespass upon the land the principal thing and the conversion incidental only; and could not, therefore, be maintained by proof of the conversion of personal property, without also proving the trespass upon the real estate.
The Ellenwood case, supra, was cited and distinguished in Stone v. United States, 167 U.S. 178, 17 S. Ct. 778, 42 L. Ed. 127, in an action brought to recover the reasonable value of certain timber and railroad ties manufactured from trees alleged to have been unlawfully cut by the defendant from certain lands in Idaho, of which the United States was the averred owner. In the Stone case the action was brought in the District Court of the United States for the State of Washington, although the timber allegedly converted was from lands in Idaho.
In distinguishing the Ellenwood case the court stated (page 182 of 167 U.S. 178, 17 S. Ct. 779, 42 L. Ed. 127):
'It is contended in behalf of Stone that, as the lands from which the trees were alleged to have been unlawfully cut are in Idaho, the action is local to that state, and the district court of the United States for the district of Washington was without jurisdiction. Ellenwood v. Marietta Chair Co. (supra) is cited as an authority for this proposition. But that case proceeded upon the theory that the allegations of the petition, at the time it was tried, presented a single cause of action, in which the trespass upon the land was the principal thing, and the conversion of the property was incidental only, and, therefore, that the entire cause of action was local. In the present case the petition, it is true, avers that the United States was the owner of the lands from which the trees were cut, but the gravamen of the action was the conversion of the lumber and the railroad ties manufactured out of such trees; and a judgment was asked, not for trespass, but for the value of the personal property so converted by the defendant. The description in the petition of the lands and the averment of ownership in the United States were intended to show the right of the government to claim the value of the personal property manufactured from the trees, illegally taken from its lands. Although the government's denial of the ownership of the land made it necessary for it to prove its ownership, the action in its essential features related to personal property, was of a transitory nature, and could be brought in any jurisdiction in which the defendant could be found and served with process. And a suit could have been brought to recover the property wherever it could be found.'
Compare also the case of Peyton v. Desmond, 8 Cir., 129 F.1, where the holding of the Stone case was cited and followed.
In United States v. Ute Coal & Coke Co., 8 Cir., 158 F.20, the United States brought an action for trespass and conversion. There were two counts in the complaint, one for entering upon the land, extracting therefrom, carrying away and converting 210,030 tons of coal of the value of $ 630,090, and the other for the taking and converting 210,030 tons of coal of the value of $ 630,090. No damage to the land other than the conversion of the coal was alleged, and the proof was that both counts were for the conversion of the same coal. Error was alleged in that the lower court refused to submit the cause of action set forth in the first count to the jury. This was ruled to be no error because the two counts stated the same cause of action. In ruling that there was no error the court stated (page 22):
'The gist of the cause of action set forth in each was the conversion of the coal, and the only damages claimed in either was the loss of the value of the coal. The averment of trespass upon the land in the first count was mere inducement to the actual cause of action -- the conversion -- and proof of the title to the land, of the trespass, and of the taking was admissible without averments to prove the plaintiff's title to the coal and its conversion. The cause of action for trespass upon the land, and for the taking from it and conversion of coal, timber, or other personal property wherein the only damage alleged is the loss of the value of the personal property converted is the same in legal effect as a cause of action for the conversion of the personal property.' Citing Stone v. United States; and Peyton v. Desmond, supra.
While no question of jurisdiction was involved in the above case, the holding therein is of value in determining whether the instant case is one of a local or transitory nature, since such determination is dependent upon whether the cause of action set forth in the third count is essentially in the nature of a cause of action for the conversion of personal property, and hence transitory, or for trespass to land, therefore, local only.
It is my opinion that the remaining count in the instant action falls within the hold in the Stone case, supra. The gravamen of the complaint, as it now remains after abandonment of counts one and two, is the conversion of the earth, and judgment is asked not for the trespass, but for the value of the personal property so converted by the defendant. The averment of title to the land by the plaintiff is intended to show the right of the plaintiff to claim the value of the earth illegally removed and converted from its lands.
It is my determination, therefore, that the complaint, as it now remains after abandonment of counts one and two, sets forth a cause of action for the conversion of personal property, is transitory in nature, and is proper subject matter for the jurisdiction of this Court.
The first and second counts of complaint, by consent of counsel, are herewith dismissed and the third count remains for trial.
© 1992-2004 VersusLaw Inc.