Opinion
May 1, 1908.
James P. Kohler [ Benjamin F. Norris with him on the brief], for the appellant.
Edwin C. Low [ Alfred Pagelow with him on the brief], for the respondent.
The plaintiff placed his building sand upon the land of Meeks without permission from Meeks. Meeks sold the land with the sand upon it to Abrams. Abrams sold and delivered the sand to Purcell. This action is against Abrams and Purcell for conversion. The court dismissed the case as to Abrams at the close of plaintiff's case, and at the close of the whole case gave judgment for Purcell. The plaintiff appeals. I think that the court erred in each disposition.
As this sand had been taken from its bed it was a subject of conversion ( Land Gravel Co. v. Commission Co., 138 Mo. 444), unless it thereafter became realty. That sand could not be regarded as realty, for it is clear that it was not put down for improvement or change of the soil, but merely for storage. There is no proof that Meeks ever regarded or treated the sand as annexed, and there is proof that Abrams did not, inasmuch as he sold it as personal property on the avowed theory that he owned it because he had bought land with the sand upon it. As Abrams sold and delivered the sand it was immaterial that he was ignorant of the plaintiff's ownership or honestly believed that he himself was the owner thereof. ( Pease v. Smith, 61 N.Y. 477. ) And no demand upon Abrams was necessary, inasmuch as he sold and delivered up the sand to the purchaser. ( Ibid; Glassner v. Wheaton, 2 E.D. Smith, 352.) Of course, the owner of a thing may abandon it, and he who gains possession thereof may thereupon become the owner of it. So it is entirely possible that one might deposit sand upon the land of another and by his conduct thereafter justify the owner of the land in the belief that the ownership had been abandoned, that he thereupon was clothed with ownership and, therefore, was entitled to dispose of it. But the proof as to abandonment thereof must be unequivocal, cogent and decisive. And such proof was not presented in this case. As to Purcell it is established clearly that he knew when he bought and took away the sand that the plaintiff asserted his ownership thereof. But Purcell turned his back on the plaintiff and dealt with Abrams on the theory that the latter owned the sand because the plaintiff had deposited it on the land. (See Babcock v. Gill, 10 Johns. 287.) It matters not if the plaintiff trespassed when he placed the sand upon the land, for that wrong neither divested him of his property nor deprived him of his right to recover it or its value by legal proceedings. ( Davis v. Davis, 72 App. Div. 593. )
The judgment is reversed and a new trial is ordered, costs to abide the event.
WOODWARD, HOOKER and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.