dissenting.
I agree that the Novotnys are in no position to complain of the working interest owners’ intervention in this case. I also agree that the working interest owners are and were the owners of the equipment when Fuel Exploration commenced this replevin action and that Fuel Exploration was and is not. I further agree that the equipment never lost its character as chattels and that the Novotnys therefore never acquired therein any interest whatsoever.
Yet, I dissent because I consider the result reached, although perhaps “fair” in the sense that it allows the owners to recover possession from those who have absolutely no interest in the equipment, to be legally incorrect.
The majority opinion ignores a basic principle of the law of replevin, that the plaintiff must recover on the strength of its *26own interest in the property involved and not on any weakness in the interest of the defendant. Putnam Ranches, Inc. v. Corkle, 189 Neb. 533, 203 N.W.2d 502 (1973); Bank of Keystone v. Kayton, 155 Neb. 79, 50 N.W.2d 511 (1951). When that rule is applied, together with those cited by the majority, that the right to recover is dependent upon the facts as they existed at the time the action was commenced, that the plaintiff must prove the interest pled, and that proof of a special ownership interest does not support an allegation of general ownership, the inescapably correct legal conclusion is that because Fuel Exploration pled a general ownership interest rather than the special one it proved to have at the commencement of the action, and because the working interest owners pled they had no ownership interest when in fact the evidence establishes they did have such an interest when the action was commenced, neither Fuel Exploration nor the working interest owners are legally entitled to recover possession of the equipment in this action.
The majority’s effort to distinguish this case from State Farm Mutual Auto. Ins. Co. v. Drawbaugh, 159 Neb. 149, 65 N.W.2d 542 (1954), overruled in part on other grounds, First Nat. Bank & Trust Co. v. Ohio Cas. Ins. Co., 196 Neb. 595, 244 N.W.2d 209 (1976), and Robinson v. Kilpatrick-Koch Dry Goods Co., 50 Neb. 795, 70 N.W. 378 (1897), fails. The Novotnys’ fallacious claim that they had become the owners of the equipment once it was attached to their land is no more colorable or less colorable than the plaintiff’s incorrect claim in State Farm that it had acquired a paramount interest in the automobile by virtue of having paid for its loss by theft. In like fashion, the Novotnys’ claim is no more colorable or less colorable than that of the defendant in error in Robinson, which erroneously asserted it had a general ownership by virtue of its rights under chattel mortgages. (I agree that Griffing v. Curtis, 50 Neb. 334, 69 N.W. 968 (1897), does not rest on the rule that proof of a special ownership interest does not support an allegation of general ownership.)
Accordingly, I would reverse the judgment of the district court returning possession of the equipment to Fuel Exploration and the working interest owners. Neb. Rev. Stat. *27§ 25-10,103 (Reissue 1979). Since the Novotnys had no use for the equipment, I would affirm the award of $1 in nominal damages to them. Neb. Rev. Stat. § 25-10,104(1) (Reissue 1979).
It seems to me that the majority opinion is an aberration which does no more than demonstrate that hard facts make bad law.