The court are to draw such conclusions of fact as well as law, as the facts stated in the case seem to warrant. I think the facts stated warrant the conclusion that the plaintiff; in 1848, knew that the property in the stones, about which this controversy has arisen, passed out of Enoch Gove; and it is very probable that he also knew at that time all the terms of the bargain, as well between the defendant's *Page 63 father and Gove, as between the defendant and his father. It is enough, however, that he knew the stones then ceased to be the property of Enoch Gove, and, of course, that they ceased to be part of the realty. It is of no consequence whether he supposed or did not suppose they passed by the deed of Wm. H. and Levi Gove to him. Having once had imposed upon them the character of chattels by being split out and moved, they did not pass by that deed, whatever the parties may have supposed, unless something had been done in the meantime to clothe them again with their original character of real estate. What had happened to them? The case shows nothing at all. They had not been appropriated to any use, or moved from the spot where they were originally left. The owners of the farm had never said or done anything by way of asserting a claim to them or otherwise. So I find that, at the time of the deed from Wm. H. and Levi Gove to the plaintiff, they were chattels, and did not pass by that deed.
Then comes the question whether they have become the property of the plaintiff by anything that has happened or failed to happen, — that is, by anything that has been done or omitted by the parties since the plaintiff became the owner of the soil on which they have been allowed to rest. For six or eight years after the deed, nothing was done or said by either party in reference to them. Each supposed himself to be the owner; but this was merely a condition of mind, a mental state, by which, I apprehend, no rights could be gained by either against the other. To be sure, the belief as to his ownership entertained by each might be a reason why nothing was done by either in the way of asserting his supposed rights. Such a belief, however, could not affect the title.
But the plaintiff had possession of the land, and the stones lay upon it, and this state of things continued six years or more before anything was done or even said between the parties as to their ownership; — thereupon the plaintiff contends that, by some application of the statute of limitations, they became his property. I think that is not so.
Undoubtedly the statute of limitations is now regarded as one of repose, and if chattels come into the possession of one not the owner, he may, without question, be thereby quieted in their enjoyment. But I think, in order that the statute should have such effect, there must be some act of appropriation, some use or enjoyment of the thing, such as would lay the foundation of an action for its recovery in favor of the owner.
It is true, the defendant slept on his rights for a very long time, and, if his property had been of a kind to yield to the assaults of the elements, he would probably have thus been saved the trouble and expense of the present litigation; but the stones were indestructible, and the precise question now is, not whether the defendant has lost them by his long repose, but whether the plaintiff has gained them since he went into possession of the land under his deed in 1861.
There is room to argue that, inasmuch as the plaintiff knew the *Page 64 stones became personal property in 1848, and that the title to them then passed out of Enoch Gove, the ancestor of his grantors, his quietly allowing them to remain, as he did, where they were left, amounted to a license to the owner to store them there, which would be good until revoked; and if that was so, the owner would doubtless be entitled to a reasonable time after such license was revoked in which to remove them. Cornish v. Stubbs, Law Rep., 5 C. P. 334, Mellor v. Watkins, Law Rep., 9 Q. B. 400. I put my opinion, however, on the ground already stated, that the title to chattels will not pass by operation of the statute of limitations unless there be some act of dominion or use on the part of the possessor inconsistent with an absolute right of property in the owner.
But I think the utmost that can be said with respect to the defendant's right to enter upon the plaintiff's land for the purpose of removing the stones, admitting that such right as against the plaintiff ever existed, is, that he must do so within a reasonable time after the dispute about the ownership in 1867 or 1869. It seems to me five, or even three years was not a reasonable time, and for this reason I am of opinion the plaintiff is entitled to judgment for nominal damages only.