BOHLEN V. ARTHURS, 115 U. S. 482 (1885)

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U.S. Supreme Court

Bohlen v. Arthurs, 115 U.S. 482 (1885)

Bohlen v. Arthurs

Submitted November 12, 1885

Decided November 23, 1885

115 U.S. 482


A tenant in common cannot maintain replevin against a cotenant, because they have each and equally a right of possession, and that rule is recognized in Pennsylvania.

Where, under an agreement for the purchase of an undivided interest in land to be conveyed to the purchaser on his paying for it, he acquires no right to cut timber on the land without the consent of the owners of the remaining interest, who are tenants in common with him of the land, if he cuts such timber and removes it, and it is taken possession of by such owners of the remaining interest, he has no such right of possession in it as will sustain an action of replevin by him against them.

The Pennsylvania Act of May 15, 1871, No. 249, sec. 6, which provides as follows:

"In all actions of replevin now pending or hereafter brought to recover timber, lumber, coal or other property severed from realty, the plaintiff shall be entitled to recover notwithstanding the fact that the title to the land from which said property was severed may be in dispute, provided said plaintiff shows title in himself at the time of the severance"

has no operation as between tenants in common.

This is an action of replevin brought in the Circuit Court of the United States for the Western District of Pennsylvania to recover a quantity of square white pine timber logs in rafts. At the trial, the court directed a verdict for the defendants, and after a judgment accordingly, the plaintiff has brought this writ of error. The defendants who pleaded, setting up property in themselves, were one Arthurs, assignee in bankruptcy of Baum and Carrier, and one McClure. Each party, plaintiff and defendants, claimed title to the timber under Baum and Carrier and one Osborne, who had title before December 18, 1872, to the lands from which the timber was taken. On that day, Baum, Carrier, and Osborne made a written agreement with one Phillips to the effect that they would convey to him, his heirs and assigns, by warranty deed in fee simple, the undivided one-half of certain specified lands in the Counties of Clearfield and Jefferson in the State of Pennsylvania, on his paying the consideration

Page 115 U. S. 483

and performing the covenants mentioned in the agreement. These were that he should pay them $125 per acre for such undivided one-half, amounting to $206,000,

"payment thereof to be made out of the proceeds of said lands when and as soon as moneys shall be realized from the sale of any part of said lands, or from the sale of timber thereon, or coal or other minerals therein contained, or lumber manufactured upon said premises in mills thereon to be erected, as hereinafter mentioned and provided for."

Phillips was to pay no interest and to have the right to pay at any time the consideration money for the whole or any part of the lands and receive a deed. Phillips agreed

"to advance and pay the one-half of such amounts of money as may be necessary to construct and erect a first-class saw mill or saw mills, and such fixtures and machinery appurtenant thereto, and such other and additional improvements"

as he (Phillips) might, "from time to time, consider and determine to be advantageous and necessary for the profitable and full development" of the lands. Then followed these clauses:

"And the said saw mills, machinery, and other improvements shall be located on such parts of said lands as may be mutually agreed upon by the said parties of the first and second parts herein named, holding as tenants in common and not as partners. And it is hereby expressly covenanted and agreed that the said Wm. Phillips, party of the second part named in this agreement, shall have the right and power to control all improvements made or to be made on said property, and to direct and manage the development of the lands herein described and held by said parties hereto as tenants in common, and not as partners."

Phillips died, and his administrators, in June, 1874, assigned to the plaintiff and one Whitney all the interest of Phillips under the agreement of December, 1872, and in and to the lands described therein. At the same time, the heirs at law of Phillips quitclaimed to the plaintiff and Whitney the undivided one-half of the said lands so agreed to be conveyed to Phillips. The timber in question was cut and taken from those lands. Under a contract between the plaintiff and Whitney and one McCracken, made in September, 1876, the latter agreed to cut

Page 115 U. S. 484

from the lands a specified quantity of square pine timber for a stipulated price and deliver it to the plaintiff and Whitney at Pittsburgh. In April, 1877, Whitney assigned to the plaintiff all his interest in that timber. McCracken, in pursuance of this contract, cut from the lands the timber in question. It was taken by the marshal under the writ in this suit, in April, 1877, and was bonded by the defendants and delivered to them.

The foregoing facts being proved at the trial, the court instructed the jury that the plaintiff had failed to show sufficient property in the timber to sustain replevin, and directed a verdict for the defendants, to which direction the plaintiff excepted.

Geo. Shiras, Jr., for plaintiff in error.

Page 115 U. S. 485

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