The case comes back to this court for instructions as to the law governing the rights of the parties, the presiding justice finding it impracticable to determine what is the reasonable course to be pursued until those rights are more fully defined. The plaintiff seeks to replevy the trees, or to have the entire growth removed by a receiver. The defendant does not wish to have his trees cut at present and offers money compensation for the plaintiff's rights.
Replevin will not lie. By the common law of this state, the remedy was available only in cases where there was wrongful taking. Mere wrongful detention was not sufficient. In the latter case detinue was the appropriate remedy, the distinction being the same as that between trespass and trover. Dame v. Dame, 43 N.H. 37; Woodward v. Railway, 46 N.H. 524; Mitchell v. Roberts, 50 N.H. 486. Two years after the decision in the case last cited, the law was changed so that the action could be maintained for a wrongful detention as well as for a tortious taking. Laws 1873, c. 21, s. 1; P. S., c. 241, s. 2; Carter v. Piper, 57 N.H. 217; Kittredge v. Holt,55 N.H. 621. But the right of action, as enlarged by the act of 1873, is not so extensive as to cut off all *Page 47 right of one who came lawfully into possession of property to retain the same until doubtful questions touching the right to hold the property are investigated. There must be a wrongful withholding. A retention of the chattel while reasonable investigation is being made is not wrongful.
"If there is a reasonable doubt of the demandant's right to the possession of the property, a refusal to deliver it until a reasonable opportunity is had to ascertain his right is not sufficient evidence of a conversion. In such a case the law does not require one to act on the instant and either comply with or deny the demand at his peril. . . . It is immaterial on what particular point material to the justice of the demand the doubt exists. It may arise upon the question of lien by the holder, or the amount of the lien, as well as upon the identity or authority of the person making the demand. Where the facts are undisputed and the doubt is upon a question of law, a refusal to deliver until the advice of counsel can be obtained may be considered as the result of a reasonable hesitation in a doubtful matter." Hett v. Railroad, 69 N.H. 139; Stahl v. Railroad, 71 N.H. 57.
One question in this case (as yet undecided) is whether the defendant may not now be entitled to have the plaintiff's property remain upon the land. It can hardly be claimed that the question is not at least a doubtful one, upon which the defendant may reasonably hesitate before becoming a wrongdoer by refusing to comply with the plaintiff's demands. The question of the right to take or receive this property is now in issue in the present proceeding. The plaintiff attempts to replevy the property while this suit in equity is pending, and thereby render nugatory any adverse decree which may hereafter be entered. The same reasoning which forbids a re-replevin while the first suit is pending applies here. "The title to the property, or the right of possession, was the only question in dispute, and it was the same question in both cases. Being impleaded in the first case, the plaintiff could try his right there, but could not duplicate or multiply the same proceeding for vexatious or other purposes. . . . Reason, authority, and public policy forbid such a proceeding, and require that litigation, once commenced, shall proceed to its end without delay or vexation." Bonney v. Smith, 59 N.H. 411, 412.
There is a further fundamental objection to the maintenance of the suit. Replevin is a strictly possessory action. It lies only in behalf of one entitled to the immediate possession of the property. *Page 48 Mitchell v. Roberts, 50 N.H. 486. It was decided in the former opinion in this case that the plaintiff had not the right to enter to take the property, and that the court had no power to confer such right upon him. As the right did not exist, it could not be created by the issue of a replevin writ.
The former decision is attacked upon the ground that it leaves the plaintiff holding title to the trees, but denied the right to get the possession necessary to make his title of any value. The position taken is not entirely correct on either point. While the plaintiff's title is recognized, it is no longer a complete one. By his own act he has incumbered [encumbered] his property. It is now subject to certain rights of the defendant. And though the plaintiff cannot enter to recover the trees, it does not follow that he is without remedy to compel the defendant to do what is reasonable in the matter of restoring to the plaintiff the trees or the value of the plaintiff's interest therein.
The important factor in the situation is that the right of ridding the defendant's land of the plaintiff's property or title has passed beyond the control of the plaintiff, and is now vested in the defendant. It is the defendant's right (viewed from his standpoint) and his duty (viewed from the plaintiff's position) to do what is reasonable to terminate the present condition of the property of the contending parties. Whether, in order to protect himself from future litigation, the landowner might in the first instance maintain a bill to obtain a decree directing his course in the premises, it is not now necessary to consider. He has been brought into equity by the action of the tree-owner, and a final disposition of the controversy will be made in this proceeding. There is at present no ground for the appointment of a receiver. If, when the decree is entered, the landowner refuses or neglects to perform the acts found to be reasonably necessary to be done by him, it may be necessary that they be done by an officer of the court. If so done, they would still be his acts in contemplation of law. It cannot be assumed in advance that he will so refuse to do his duty; and until he does, there is no ground for usurping his privilege.
In ruling pro forma against the defendant's motion for a decree that the plaintiff's claim be satisfied by a money payment, the superior court suggests that if such decree were made it would "compel the plaintiff to sell his property." The presiding justice expresses his doubt of the power so to do. If this would be the effect of the order, the doubt expressed would be well founded and *Page 49 would be supported by the reasoning of the former opinion in this case. But the situation may be such that the tree-owner has already lost his title to the specific property. There is no case in this state deciding that he cannot lose it. All that is determined by the prior cases is that the mere leaving of the trees upon the land, so that they wrongfully subsist upon the landowner's estate, does not transfer the title to the trees to the landowner. Hoit v. Stratton Mills, 54 N.H. 109. An additional feature is now presented in this case. Not only has the tree-owner unlawfully abstracted nutriment from the landowner's estate, but in process of time the new growth which belongs to the landowner has become commingled with the larger growth sold to the tree-owner. The question of the confusion of goods distinguishes this case from those which have preceded it, and may lead to a different result as to the rights of the parties. The landowner is entitled to a reasonable use of his estate. This includes a right to cultivate, develop, and market his growing forest product. If under all the circumstances it is a reasonable use of his premises to insist that his young trees shall not be disturbed, the owner of the older ones cannot be heard to complain. Stackpole v. Railroad, 62 N.H. 493. The landowner's right extends to the destruction of the offending property, if that is necessary to the reasonable enjoyment of his own property. Hoit v. Stratton Mills, supra. It can make no difference in principle whether that destruction is brought about by swift combustion caused by burning the trees with fire, or by the slow combustion of natural decay. Whether one who has willfully and defiantly intermingled his property with, or affixed it to, that of another can have any equitable claim for benefits conferred may not be a doubtful question; but it is not necessary to investigate it here, for the landowner does not insist on the right (if he has it) to keep the property without compensation. He is willing to pay the full market value of the property wrongfully commingled with his own. If it shall hereafter be found that it is reasonable that he be left to carry out his ideas of forestry without disturbance, a decree that his title is freed from all claim of the plaintiff upon payment of the proffered sum will end the case. If, however, it is found that it is not reasonable for the landowner to thus insist upon the use of his own premises, it will be necessary to determine what course he must reasonably take to rid his land of the incumbrance, [encumbrance] and a decree will in that event be entered in accordance with such finding.
A final order cannot now be made because the facts are not yet *Page 50 found. When it has been ascertained what the rule of reasonable conduct under the circumstances requires of the defendant, the order to be made will follow as a legal conclusion. The relief to be granted is discretionary only in that the finding of the facts as to reasonableness rests with the justice presiding at the trial.
Case discharged.
All concurred.