held, however, in some jurisdictions that a demand must be made of one who in good faith purchases goods from one who has no right to sell them, before there can be any liability.65

§ 588. Who may Complain of Conversion-Title.The wrong being to the possession of personal property, and the action of trover being in the nature of a possessory action, the rule is that to enable one to complain he must have at the time of the conversion title absolute of the property, or the right of property, either general or special, and also the possession, or the right to the immediate possession. There must be a concurrence both of the right of property, general or special, and of the actual possession or the right to immediate possession, and this concurrence must exist at the time of conversion. Furthermore, the party complaining must rely upon the strength of his own title, and not upon the weakness of that of his adversary. So a warehouseman,

66

Vermont: Deering v. Austin, 34 Vt. 330; Courtis v. Cane, 32 Vt. 232, 76 Am. Dec. 174.

Wisconsin: Eldred v. Oconto Co., 33 Wis. 133; Oleson v. Merrill, 20 Wis. 462, 91 Am. Dec. 428.

65 Wood v. Cohen, 6 Ind. 455, 63 Am. Dec. 389; Barrett v. Warren, 3 Hill, 348; Torian v. McClure, 83 Ind. 312.

66 Union Stockyard etc. Co. v. Mallory, 157 Ill. 554, 48 Am. St. Rep. 341, 41 N. E. 888. Trover cannot be maintained when the plaintiff has neither the right of property in, nor the right of possession to, the chattels: Johnson etc. Co. v. Central Nat. Bank, 116 Mo. 558, 38 Am. St. Rep. 615, 22 S. W. 813.

Plaintiff must prove property in himself, and a right of possession at the time of conversion.

Arkansas: Danley v. Rector, 10 Ark. 211, 50 Am. Dec. 242.

Alabama: Whitlock v. Heard, 13 Ala. 776, 48 Am. Dec. 73.

Illinois: Davidson v. Waldron, 31 Ill. 120, 83 Am. Dec. 206; Owens v. Weedman, 82 Ill. 409.

Kansas.-A mortgagee may: Howard v. Burns, 44 Kan. 543, 24 Pac. 981. Must have possession or the immediate right of pos session: Hoisington v. Armstrong, 22 Kan. 110.

with whom grain is stored, having the right of possession may, after demand and refusal, maintain trover against an officer who levies upon and sells the same under a writ against such warehouseman.67 If a warehouseman sells more than his outstanding receipts, a depositor may follow the grain into the hands of the purchaser and recover of him for a conversion.68 A lessee of mining land may maintain an action of trover against a person who was in the actual possession under a claim of right for the wrongful conversion by the latter of unmined ore in the land, where the only possession he has is such as to enable him to mine and convert the ore, his claim of title being decided against him.69 A second mortgagee of chattels who is neither in actual possession nor entitled to such possession, cannot maintain an action for their conversion.70 So may an officer having property in his possession under a levy Maine: Ames v. Palmer, 42 Me. 197, 66 Am. Dec. 271.

Massachusetts: Ring v. Neale, 114 Mass. 111, 19 Am. Rep. 316. In Michigan one who has the right to possession may maintain the action: Wilson v. Hoffman, 93 Mich. 72, 32 Am. St. Rep. 485, 52 N. W. 1037.

Missouri: Turley v. Tucker, 6 Mo. 583, 35 Am. Dec. 449.

North Carolina: Brazier v. Ansley, 11 Ired. 12, 51 Am. Dec. 408. Pennsylvania: One who has the right cannot as against one in adverse actual possession: Mather v. Trinity Church, 3 Serg. & R. 509, 8 Am. Dec. 663; South Carolina, Gage v. Allison, 1 Brev. 495, 2 Am. Dec. 682; Vermont, Baxter v. Bush, 29 Vt. 465, 70 Am. Dec. 429.

67 Yockey v. Smith, 181 Ill. 564, 72 Am. St. Rep. 286, 54 N. E. 1048.

68 Hull v. Pillsbury, 43 Minn. 33, 19 Am. St. Rep. 209, 44 N. W. 673.

69 Hartford etc. Co. v. Cambria Min. Co., 93 Mich. 90, 32 Am. St. Rep. 488, 53 N. W. 4.

70 Baker v. Seavey, 163 Mass. 522, 47 Am. St. Rep. 475, 40 N. E. 863; Ring v. Neale, 114 Mass. 111, 19 Am. Rep. 316. Nor will an equitable assignment of the first mortgage enable him to sue: Id.

maintain trover against anyone who takes it from him.71

§ 589. Property Subject to Conversion.-Conversion can only be made of personal property, tangible or intangible. There is certain property that by reason of its relation to real estate, which by virtue of an agreement made between parties, or of relation as well as by agreement, express or implied, which deserves special mention, viz., fixtures, sand, gravel, stone, minerals, oil, timber, buildings, crops, etc. All of these, except the last, may pertain primarily to the realty, but an agreement of the parties, or their relation, may or may not change their character, according to circumstances. Sand and gravel, while in its original bed, is as much a part of the realty as the earth itself, and hence trover will not lie for its conversion. The cutting and taking away timber upon land, according to the generally accepted view, constitutes trespass to realty.73 Personal property, other than tangible, as stock in a corporation, is subject to conversion, for which trover will lie, as where the corporate officers refuse to transfer a certificate.74

Mr. Justice Mitchell, of the supreme court of Pennsylvania, speaking with reference to gas, water and ore, says: "Gas, it is true, is a mineral; but it is a mineral with some peculiar attributes, which require the application of precedents arising out of the ordinary mineral rights, with much more careful con

71 Penland v. Leatherwood, 101 N. C. 509, 9 Am. St. Rep. 38, 8 S. E. 234; Lockwood v. Bull, 1 Cow. 322, 13 Am. Dec. 539; Davidson v. Waldron, 31 Ill. 120, 83 Am. Dec. 206.

72 Glencoe Land etc. Co. v. Hudson Bros. etc. Co., 138 Mo. 439, 60 Am. St. Rep. 560, 40 S. W. 93.

74 Craig v. Hesperia Land etc. Co., 113 Cal. 7, 54 Am. St. Rep. 316, 45 Pac. 10; State v. Carpenter, 51 Ohio St. 83, 46 Am. St. Rep. 556, 37 N. E. 261.

sideration of the principles involved than of the mere decisions. Water also is a mineral, but the decisions in ordinary cases of mining rights, etc., have never been held as unqualified precedents in regard to flowing, or even percolating, waters. Water and oil, and still more strongly gas, may be classed by themselves, if the analogy be not too fanciful, as minerals ferae naturae. In common with animals, and unlike other minerals, they have the power and tendency to escape without the volition of the owner. . . ... They belong to the owner of the land, and are part of it, so long as they are on or in it, and are subject to his control; but when they escape and go into other land, or come under another's control, the title of the former is gone. Possession of the land, therefore, isnot necessarily possession of the gas. If an adjoining, or even a distant, owner, drills his own land, and taps your gas so that it comes into his well and under his control, it is no longer yours, but his." 75 The question of fixtures will be further considered.

§ 590, Detention or Conversion of Removable Annexations to land-Fixtures.-Whether or not property annexed to realty remains personalty, and hence is subject to conversion, depends upon principles to be next discussed. It is sufficient to state here that whatever is annexed to land in such a way and under such circumstances as not to become part of it, but to remain personalty, it is then subject to conversion, and trover will lie against anyone who retains it.76 When such property may be subject to con

75 Westmoreland etc. Gas Co. v. De Witt, 130 Pa. St. 235, 18 Atl. 724.

76 Hopewell Mills v. Taunton Sav. Bank, 150 Mass. 519, 15 Am. St. Rep. 235, 23 N. E. 327; Canning v. Owen, 22 R. I. 624, 84 Am. St. Rep. 858, 48 Atl. 1033; Fuller & Warren Co. v. Harter, 110 Wis. 80, 84 Am. St. Rep. 867, 85 N. W. 698; Peck v. Batchelder, 40 Vt.

version and when not will depend upon the substantive character of the property. A brief discussion of the principles of law relating thereto will next follow.

§ 591. Things Annexed to Realty by Agreement, When Fixtures and When not-The General Principle. The term "fixture" denotes something personal, which has been annexed to real property in such a way, or under such conditions or circumstances, as to become part thereof. We are concerned in this chapter with only that class of personalty annexed temporarily to realty, and which does not become a part of it. "Fixtures belong to that class of property which stands upon the boundary line between the two grand divisions of things real and things personal, into which the law has classified property— a distinction not merely artificial, but founded on reason and the nature of things; regarding not only the natural qualities of immobility on the one hand and the mobility on the other, but also the legal constitution and incidents to which each class respectfully is subject." 77 When and under what circumstances a chattel becomes attached to realty so as to become part thereof depends primarily upon the intention of the party so annexing it, and secondly upon the manner of annexation. The intention of the party annexing the thing, as in other questions involving intent, is not always susceptible of direct proof, but is oftentimes to be presumed from the manner of annexation, and more especially from the relation which the party annexing the chattel sustains to the realty. The intent may, however, be 233, 94 Am. Dec. 392; Dutton v. Ensley, 21 Ind. App. 46, 69 Am. St. Rep. 340, 51 N. E. 380: Hill v. Sewald, 53 Pa. St. 271, 91 Am. Dec. 209.

77 Teaff v. Hewitt, 1 Ohio St. 511, 59 Am. Dec. 634.