Nova Scotia. This was an action of replevin (brought by the respondents in the Supreme Court of Nova Scotia, against appellant,) for 1,440 spruce and pine logs cut on lots 815 and 816 in the township of Horton, in the County of King's, chiefly known as the Johnston lot. The writ contained, besides the first count in replevin, two other counts in trover, but the verdict for the plaintiffs was taken only on the first count. Plaintiffs claimed and had actual possession of the land under an agreement, under seal, made in 1873, with one Moore, to whom the lots had been conveyed by deed in 1854. In 1875 having built a barn and also a camp on the land, plaintiffs commenced and continued logging all winter and out 1,700 trees, and so also in subsequent years. In 1877 defendant, claiming title under one Benjamin, cut 600 trees on the disputed lot, and put them partly inside and partly outside of the plaintiff's boom, mixing them with some 900 logs cut by the plaintiffs in such a way that they could not be distinguished.
As to Benjamin's title, it consisted in a deed dated 2nd March, 1872, by which certain parties, who had been authorized at a meeting of the inhabitants of the townships held in 1847 for the purpose of making provision for the poor, .
conveyed to him and others a certain tract of land situate in Horton township and known as vacant lands, containing seven thousand acres. This deed was accompanied by a power of attorney, empowering Benjamin and the other grantees, to ask, demand and receive compensation and damages from all persons liable for trespasses committed on the lot described in the deed. The defendant then claimed the whole of the logs.as his own, and resisted the plaintiffs attempt to remove them, whereupon the plaintiffs took out a writ of replevin, under which they took all they could identify and enough to make up the number cut on the Johnston land and by themselves.
The cause was tried before the Hon. Mr. Justice Des- Barres and a jury at Kentville, and resulted in a verdict for the respondents. The appellant having taken out a rule nisi to set this verdict aside, the Supreme Court of Nova Scotia after argument gave judgment discharging the rule nisi with costs, from which judgment the present appeal was taken.
The appeal was argued exparte by Mr. Rigby, Q.O., for appellant:
This was an action of replevin with counts in trover, and although the Judge at the trial directed a verdict to be entered on the replevin count alone, I contend this does not remedy the defect and that the jury have found on a bad writ
This was taken as one of the grounds in the motion for non-suit.
Appellant having entered upon the lands described in his deed, was in possession with color of title and had a legal right to the trees, all of which were cut upon those lands, as against the respondents, who were trespassers without right other than could be obtained by the mere act of cutting them. Washburn on Real Property
But admitting respondents to be entitled to the trees cut by them, these only amounted to 930, whereas they replevied 1443, or over 500 that had been cut by appellant.
The alleged admixture by appellant of his logs with those cut by respondents, (a point taken for the first time in the judgment of the Court below) is not sufficient to justify the verdict for the following reasons: The fact of the admixture or confusion was not submitted to the jury, and was not found by them, it is a question of fact, and cannot be set up by the Court as a matter of law, as it has been in this case.
The appellant having intermixed the logs innocently, and under a claim of right, believing that those placed within the boom by respondents had been cut upon his land and were his property, the whole quantity became the common property of the appellant and respondents, and the latter had no right to take more than their own property, i. e., 930 trees.
In any case, admitting that the admixture was wilful and wrongful, yet still the respondents have got 209 trees at least more than they were entitled to. They placed all that they had ct within the boom, and while appellant placed some that he had cut with these, within the boom, he also placed 209 on the landing outside the boom where they were not commingled with any logs of the respondents, but these latter were taken under the replevin and the respondents right to them confirmed by the verdict, whereas, at least as to them, there should have been a judgment de returno habendo. Spence v. Union Marine Ins. Co. (2) ; Byder v. Hathaway (1); Lawrie v. Rathbun, et al. (2); Waterman on Trespass
A.
I also submit there was evidence improperly admitted
The alleged plan of the township of Horton, most material evidence for respondents, Upon which their whole title rested, was admitted, in the face of the objection of appellant's counsel, upon the evidence of a clerk from the Crown Land Office that he got the plan in that office where it had been since he first became a clerk there eleven years previously, and that he had been told -it was the plan of Horton township. No evidence of any partition or survey was given.
RITCHIE, C.J.:
The plaintiffs were in actual possession of the property in dispute, and, neither party showing title to it, the party in possession, as against the wrong doer, was entitled to claim for trespass.
In my opinion the mixing of the logs is not important in this case, it has no bearing upon the case in any way.
J.:- I think this appeal ought to be dismissed, but not for the reasons given in the judgment of the court below. The mixing by the defendant of the 500 logs cut by him with the 980 cut by the plaintiffs did not entitle the plaintiffs to replevy the whole 1,430, as held- by the Supreme Court of Nova Scotia.
The question of title to chattels caused by one party wrongfully commingling his own property with that of another, has frequently arisen with reference to chattels of the description of those in question here, and it is well settled that all that tho party whose logs are intermingled can require, is that he should be permitted (1) Tick.
(2) U. C. Q. B.
to take from the whole lot an equivalent in number and quality for those which he originally possessed. Mr. Justice Cooley thus states the results of numerous authorities on this point in Michigan :- For another reason, however, I am of opinion that the plaintiffs were entitled to recover. It is apparent from the evidence that whether the true boundaries of lot 815 were or were not those contended for by the plaintiffs, they were in possession constructively of all the land claimed by them to be lot 315, upon which their own 930 logs as well as the 500 logs of the defendant were cut. The possession of the plaintiffs was not of course such possession as would be had of cultivated land, but it would have been sufficient, in the course of time, to have conferred upon them a title to this land under the Statute of Limitations, supposing they had not a title under the agreement in pursuance of which they took possession. The plaintiffs dlaimed the whole of this land, by the description of Lot 315, under a paper title. Therefore, when they took actual possession of part and built a barn upon it, they were, on the authorities under the Statute of Limitations, constructively in the possession of the whole. Then the defendant had not any possession, for mere occasional acts of trespass cannot constitute a possession, and he had no title, it being absurd to call that a title, which was derived from the pretended authority of the town meeting held in 1847.
The consequence is that the plaintiff's possession being prindfadie evidence of seisin in fee, the title to the logs cut by plaintiffs as well as by defendant, vested as soon as cut in the plaintiffs, who were therefore entitled to recover the whole in this *.
action of replevin, and for that reason this appeal must be dismissed with costs.
J.
FoURNIER and JJ., concurred with Strong, J.:
HENRY, J.:
For the reasons given by the learned Chief Justice when delivering the judgment of the court in the court below and in the charge of Mr. Justice Des Barres, before whom the issues in this case were tried, I think the respondents entitled to recover.
They were in possession of the lands upon which the greater number of the logs were cut for several years under a purchase from Daniel Moore, and, for three or tour or years previous had been in the sole occupation of it, and each year had cut logs on it and hauled them off it. They had also erected upon it a barn.
While so in possession they out during the winter of 1878 930 trees and hauled them out to a lake on the same land upon which they had been cut, where they placed them on the ice protected by a boom which they placed around them to prevent their being floated away when the ice should break up. Some few of the logs were marked, but the far greater number were not.
Some time shortly afterwards, the appellant placed five hundred and thirteen logs, cut on the same land as those cut by the respondents, unmarked, inside the respondents boom and mixed up with those of the respondents. The respondents subsequently attempted to distinguish their logs from those of the appellant and mark them, but were prevented from doing so by the appellant's servants and the appellant claimed all the logs in the boom placed there by both parties. The respondents then commenced the present action by a writ containing the COURT Op declaration with one count in replevin and two in trover. At the trial the joinder of those counts was objected to, and thereupon, the presiding judge left . the case to the jury solely on the first count, and the jury found a verdict for the respondents.
It was J shown on the trial that Daniel Moore from whom the respondents had several years before received a convey. ance of the land in question, and had previously sold it to another party, who went into possession of it, and occupied it several years by working on and taking logs from it, but failing to pay for it, gave back the posses. sion of it to Moore. The respondents therefore were in possession, not as squatters or trespassers, but as purchasers from one who also claimed it under a title and had possession of it. The logs or trees were therefore in the possession of the respondents 'claiming them as owners, and no person would be justified in interfering with that possession but one who could show himself to be the titled owner of the land upon which they had been cut. The appellant claimed title by a conveyance from parties who had themselves no title, and who were never shown to have ever been in possession of the land. The deed to Benjamin, under whom the appellant claims was not made until 1872, while 1Moore's title was in 1852, and at the time when the former deed was given he was in the adverse possession of the land. By the law in Nova Scotia, the deed so made would be void as against Moore, and therefore no title would pass to Benjamin.
The defence is set up under the pleas of non cepit and non detenit, and other pleas alleging title. There is sufficient evidence of the taking and detaining. No title, as I previously said, is shown in Benjamin in the 930 trees cut by respondents, and there was no pretence of any in McDonald.
As to the balance of the logs, 513, I entirely agree