We do not look upon this case as one in which counsel for the town are seriously contending for compensation for the state franchise in respect to the municipal interests within the territory condemned. It will probably be found that the great majority of cases which hold that the value of the franchise right is to be considered upon the question of compensation, like United States v. Great Falls Mfg. Co. 112 U. S. 645, 28 L. ed. 846, 5 Sup. Ct. Rep. 306, Great Falls Mfg. Co. v. Atty. Gen. (Great Falls Mfg. Co. v. Garland) 124 U. S. 581, 31 L. ed. 527, 8 Sup. Ct. Rep. 631, and the Monongahela Nav. Co. Case, 148 U. S. 343, 37 L. ed. 463, 13 Sup. Ct. Rep. 622, have reference to a franchise granted to a corporation only quasi public,—one where the right relates to a situation into which the public interest enters somewhat, but which chiefly involves an enterprise for remunerative results to the corporation.

Ordinarily structures and certain kinds of fixtures are compensated for by appraising them as a part of the realty. This is probably universally true where land is taken from the owner for public purposes. We have no doubt, however, upon principles of natural justice and of right, that a municipality should be compensated upon an appraisement of its tangible property resting upon and under land which it does not own, but with which its property is connected in the exercise of a public franchise for public purposes; and, assuming this to be so, in estimating its value all the capabilities of the property, and all the uses to which it may be applied or to which it is adapted, are to be considered. 2 Lewis, Em. Dom. 1048; Smith, Modern Law of Mun. Corp. 719.

The petition prays for an impartial appraisement of property taken, including "all damages sustained by the owner or owners thereof." Still, in view of the general character of the claim of the town, for indemnity for the interruption to its water and sewer systems which results from taking a part thereof, we do not feel called upon to determine whether, in arriving at just compensation, or, in other words, whether, in making the municipality whole by returning an equivalent for what has been taken, just compensation for property actually taken is to be ascertained by reference to its capabilities, and uses in connection with the part not taken, or (Lewis, Em. Dom. §§ 471, 471a) by ascertaining the difference between the value of the whole property before the taking and the value of the remainder after the taking, or by ascertaining the value of the part taken, to

We do not think the claim or the offer of proof sufficiently definite to justify us in assuming to decide which rule should be applied. It is said in Lewis on Eminent Domain (§ 464) that, "when part is taken, just compensation includes damages to the remainder. Upon this point there is entire unanimity of opinion. "The constitutional provision cannot be carried out, in its letter and spirit, by anything short of a just compensation for all the direct damages to the owner.'" To these propositions there are gathered many authorities in the notes contained in the second edition of that work. Dillon says: "Regard must be had to the condition as to the shape, use, and convenience in which the residue of the property will be left" (2 Dill. Mun. Corp. § 624), while Mr. Justice Peckham, speaking for the Supreme Court, leaves the question in this way: "As to the effect of the taking upon the land remaining, that is more a question of the amount of compensation. If the part taken by the government is essential to enable the railroad corporation to perform its functions, or if the value of the remaining property is impaired, such facts might enter into the question of the amount of the compensation to be awarded." United States v. Gettysburg Electric R. Co. 160 U. S. 668, 685, 40 L. ed. 576, 582, 16 Sup. Ct. Rep. 427, 431. See also Cooley, Const. Lim. 6th ed. 697, 700, and notes. United States v. Alexander, 148 U. S. 186, 37 L. ed. 415, 13 Sup. Ct. Rep. 529; United States v. Truesdell, 148 U. S. 196, 37 L. ed. 419, 13 Sup. Ct. Rep. 532; Great Falls Mfg. Co. v. Atty. Gen. (Great Falls Mfg. Co. v. Garland) 124 U. S. 581, 31 L. ed. 527, 8 Sup. Ct. Rep. 631; Pumpelly v. Green Bay & M. Canal Co.

13 Wall. 166, 177, 178, 20 L. ed. 557, 560;

Laflin v. Chicago, W. & N. R. Co. 33 Fed. 415; 18 Am. Dig. Century ed. col. 1277, $365, and numerous cases there cited.

We do not decide upon which view this cause should be submitted to the jury. Perhaps either would be correct. Any view which would give the town just compensation for its property taken would answer the requirement of the Constitution. It is possible that a verdict based upon the value of the structures and materials and other tangible properties of the town actually taken, together with a special verdict for the damage resulting to parts of property not taken, might solve tne situation.

As we hold that the Federal proceeding takes hold of the situation ex proprio

of any interest therein.

of the action.

A

(Wilkes, J., dissents.)

(February 18, 1905.) PPEAL by the administrator of Hizar Beaty, deceased, from a judgment of the

An action of replevin does not lie for the purpose of litigating and determining the title to real estate between adverse claimants. Baker v. Campbell, 32 Mo. App. 529, obiter.

So, the owner of land may not bring replevin for chattels severed when the land is in the adverse possession of the defendant, or of a third person. The law does not permit him to assert his title to the land against the person in adverse possession in that manner. Anderson v. Hapler, 34 Ill. 436, 85 Am. Dec. 318.

And so, when the person severing timber from land is in the adverse possession thereof, the owner may not maintain detinue therefor, since title and right of possession of lands cannot be determined in such an action. Street v. Nelson, 80 Ala. 231.

An action in replevin is not maintainable by one not in the actual, exclusive possession of a quarry, for slates taken therefrom, whatever his title may be, against one who is in the possession under a claim of right. This decision is based upon the ground that title cannot be decided in a transitory action because that might lead to the trial of title of a coal mine in England in an action of replevin for coal dug out of the mine and carried to Pennsylvania; and title to the soil in a foreign nation might thus be tried in a transitory action. Brown v Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 660. This decision, however, is abrogated by a statute which now exists in Pennsylvania, providing as follows: "In all actions of replevin now pend. ing, or hereafter brought, to recover timber, lumber, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute: Provided, said plaintiff shows title in himself at the time of the severance." Act May 15, 1871, P. L. 268, § 1.

The plaintiff out of possession cannot sue for property severed from the freehold when the defendant is in possession of the premises from which the property was severed, holding them adversely, in good faith, under the claim and color of title; in other words, the personal action cannot be made the means of litigating and determining the title to the real property as between conflicting claimants. Halleck V. Mixer, 16 Cal. 574.

And so, where defendant is in the actual possession of real estate, in good faith claiming title thereto, a party, upon the claim that he

The facts are stated in the opinion. Mr. John F. McNutt, for appellant: Before plaintiffs are entitled to the judg ment for the possession of the logs replevied in the case, they must show that they were the true and lawful owners of the lands

from which said logs were cut and removed, or that they were in the actual and exclusive possession of said lands.

Collier v. Yearwood, 5 Baxt. 581. Plaintiffs cannot recover where the property belongs to a third party.

McFerrin v. Perry, 1 Sneed, 314; Robb

is the true owner of the real estate, may not, by claim and delivery, secure possession of a portion of a house severed by defendant from the land, and sold. The title to the land cannot be litigated in that kind of an action. Hines v. Good, 128 Cal. 38, 79 Am. St. Rep. 22, 60 Pac. 527.

In order to maintain an action of replevin for things severed from the realty, the plaintiff must have had the actual or constructive possession of the land; and, as the title to land cannot be tried ex directo, in replevin, if the series of acts, in which the severance and taking away has occurred, are sufficient to create an adverse possession in the defendant, replevin cannot be maintained. Washburn v. Cutter, 17 Minn. 361, Gil. 335.

The plaintiff may not introduce his title papers to show that he was the owner of land, in an action of replevin to recover grain harvested therefrom, when the defendant had been in possession of the land for several years. Caldwell v. Custard, 7 Kan. 303.

In an action of replevin brought by one in the actual possession of land under claim of right, for oats taken therefrom by parties attempting to take possession of part of the land, testimony to show that the plaintiff's possession of the land was not in good faith, but that she was merely acting for her father in obtaining title from the government because he could not enter the land, was inadmissible. "The controversy in the case was not as to the title of the land, but simply as to the possession there. of, and as to the ownership of the oats." Barnhart v. Ford, 37 Kan. 520, 15 Pac. 542.

A replevin action may not be made the means of litigating and determining the title to the realty as between the conflicting claimants; and therefore, in an action brought by one claiming to be the true owner of the premises, against another in the actual possession thereof and claiming title adversely to the plaintiff by reason of a tax deed, who had removed a house from the premises, an adjudication of the invalidity of the tax deed, and consequent rendition of judgment in favor of the plaintiff, was error. Rees v. Higgins, 9 Kan. App. 832, 61 Pac. 500.

The same principle holds good when a plaintiff in the adverse possession of lands brings an action of replevin for things severed during his occupancy.

Thus, in an action of replevin for crops,

▼. Cherry, 98 Tenn. 72, 38 S. W. 412; 24 Am. & Eng. Enc. Law, 2d ed. p. 486. The plaintiffs must prove either general or special property in themselves, or they cannot recover.

Parham v. Riley, 4 Coldw. 5.

The original owner of lands sold to pay taxes cannot maintain replevin for the timber cut by the purchaser between the times of sale and of redemption.

Cromelien v. Brink, 29 Pa. 522.

The trial judge erred in declining to pass on the title.

Hart v. Vinsant, 6 Heisk. 616.

Messrs. L. T. Smith, J. T. Wheeler, and A. M. Roberts also for defendants. Messrs. Conatser & Case, for appellees: Plaintiffs below were not required to brought by a plaintiff in the actual adverse possession of the land, the defendant cannot defend upon his alleged better title to the land. Lehman v. Kellerman, 65 Pa. 489.

II. Nature of the adverse possession.

a. In general.

The adverse possession, however, to be ef fectual in giving a right to the possession and disposition of the severed chattels, must be more than a mere unsubstantiated claim. It must be entered into and continued in good faith, and under at least claim, and perhaps color, of title.

Thus, an action to recover wood cut from land is maintainable by the true owner against the parties who cut the wood, who were in the adverse possession of the land at the time, but were so in possession without title, or color of title. Kimball v. Lohmas, 31 Cal. 154. The court in this case seems to regard the commonlaw rule to be that replevin cannot be maintained for property severed from the freehold while in the adverse possession of the defendant. no matter what may be the character of his possession in other respects,--whether founded upon title, or taken by bow and spear. In commenting adversely upon this rule, the court says: "Upon authority, it is not easy to say precisely what it is, or where it came from. The cases by no means agree, and, when they attempt a reason, they are equally wide apart. Considered by the light of principle, there seems to be very little principle, if any, involved. The wood in question, having been cut from the land of the plaintiff, is as much his property now as before it was cut. By the severance from the freehold it was changed from real to personal property, but its tit e was unaffected. If, then, it is his property, why is he not entitled to its possession? And, if entitled to the possession, why is he not entitled to an action for it?"

identify the logs cut from the land with absolute certainty after they had been mixed with logs from other land by defendants below.

Eldred v. Oconto Co. 33 Wis. 133. Defendants had no possession of the land off which the logs were cut.

A champertous deed is no protection whatever for any purpose. It could not be offered as an outstanding title. It is void for all purposes.

Williams v. Hogan, Meigs, 189; Fowler v. Nixon, 7 Heisk. 728; Gheen v. Osborne, 11 Heisk. 70.

Description by reference to entry number was sufficient.

Smith v. Greaves, 15 Lea, 459; Solomon v. Thatcher, 2 Shannon, Cas. 37.

by the true owner of the trees is maintainable. Phillips v. Gastrell, 61 Miss. 413.

It is settled that an action in replevin will not lie in favor of the legal owner of land for crops planted and harvested thereon by a person in the actual and exclusive possession of the land in good faith as a pre-emption claimant, holding the same adversely to all other persons. Smith v. Cunningham, 67 Cal. 263, 7 Pac. 679, obiter.

An action to recover grains sown and harvested by the defendant upon lands to which he claimed title, and of which he had the actual, adverse, and exclusive possession, cannot be maintained. Martin v. Thompson, 62 Cal. 618, Followed without opinion in Martin v. Durand, 62 Cal. 623.

And an action of replevin is not maintainable against defendants, who raised and harvested the wheat in controversy from land in which they were in the actual possession, claiming title thereto under an invalid conveyance from plaintiff, i. e., under color of title. Emerson v. Whitaker, 83 Cal. 147, 23 Pac. 285.

The court conceded, obiter, in Johnson v. Elwood, 53 N. Y. 431, that, if a plaintiff who was attempting to maintain an action of replevin for chattels severed from realty upon the ground of constructive possession under a tax deed which proved to be a nullity, had been in actual possession of the land under such a deed, it might have served as the foundation of title by adverse possession, which would have enabled the plaintiff to protect himself against mere trespassers and intruders.

An action of replevin is not maintainable for rails and posts made from trees cut from land, when the defendant at the time of the taking was in possession of the land under an actual claim of title. Snyder v. Vaux, 2 Rawle, 423, 21 Am. Dec. 466.

And so an action of claim and delivery, to recover logs severed from the land while the defendant was in possession thereof under a claim of title, is not maintainable. Harrison v. Hoff, 102 N. C. 126, 9 S. E. 638.

An action in replevin cannot be maintained against one who has purchased hay taken from a farm, from a party in possession of the farm claiming it as his own against the world, and holding it adversely, the action being brought before the plaintiff recovered possession of the farm. Stockwell v. Phelps, 34 N. Y. 363, 90