By deed defendant, McGill, conveyed to plaintiff, Holman, certain pine timber standing on a tract of land described in the deed. One covenant of the deed was, in substance, that the timber was to be cut and removed prior to July 1, 1919. Some trees had been cut and were lying upon the ground when the time for removal expired, and shortly afterwards plaintiff proposed to go upon the land for the purpose of removing them, but defendant forbade the plaintiff to do so, warning him to stay off the land. There can be no doubt that defendant's purpose was to prevent plaintiff getting the logs; but with the logs themselves, as they lay in the woods, defendant interfered not at all. Plaintiff sued in trover and had judgment. Defendant appeals.
Since the decision in Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380,42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58 (1906), the law of this state has been that the title to standing timber in the case of a conveyance like this remains in the grantee after expiration of the time limited for its removal, but the grantee has no right to go upon the land in order to remove the trees. Wright v. Bantley Lumber Co.,186 Ala. 616, 65 So. 353; Mt. Vernon Lumber Co. v. Shepard,190 Ala. 574, 67 So. 286. This state of the law brings about anomalous complications, as the court has come to realize in more recent years, and the Legislature, conscious also of the confusion inherent in this situation, has by the act of September 30, 1919, attempted to introduce a change (Acts 1919, p. 836), but with no effect, I fear, because the question involved is judicial, not legislative. The act does not affect this case. But the court, considering that a rule of property has been established, has been unwilling to recede from the doctrine of the Zimmerman Case. The writer, speaking for himself, has never been able to understand wherein the rule might serve any beneficial purpose.
Here the trees in controversy were cut prior to the expiration of the time limited for their cutting and removal. According to the doctrine of the Zimmerman Case, they became and remained the personal property of plaintiff. Their legal status did not differ from any other personal property upon the premises of another. In general, the owner of property may take possession of it wherever he finds it. But he must commit no trespass, provoke no breach of the peace; and if he cannot regain possession peaceably — in this case the possession plaintiff had during the life of the contract — he must appeal to the courts of the country. Folmar v. Copeland, 57 Ala. 588. Necessarily, we think — the rule of the Zimmerman Case being operative — defendant's refusal to allow plaintiff to remove the logs was tortious. Such removal would not have involved possession of any part of the freehold, but only passage over it. True, defendant merely warned plaintiff to stay off the premises, ex cautela saying nothing about the logs; but the jury, in the exercise of their common sense, were authorized to look through this transparency and find that one, if not the chief, purpose of defendant's inhibition was to deprive plaintiff of the use, enjoyment, and possession of his property. Thereby defendant exercised dominion over the property in exclusion or defiance of plaintiff's right and was guilty of a conversion. Conner v. Allen, 33 Ala. 515.
I would get away from an impossible state of the adjudicated law. I would hold that the court committed no error in submitting this cause to the jury. In this view ANDERSON, C. J., and MILLER, J., concur.