PETEY MFG. CO. v. MORRIS. 1. REPLEVIN (8 11*)-DEMAND-NECESSITY. Though generally a demand is a prerequisite to replevin, it is not necessary where defendant claims ownership of the property, and a demand would be unavailing. [Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 85-97; Dec. Dig. § 11.*] 2. REPLEVIN (§_72*)—IDENTITY OF PROPERTY -EVIDENCE-SUFFICIENCY. In an action to replevy logs, evidence held sufficient to identify the logs as those to which plaintiff was entitled under certain deeds and agreements. [Ed. Note. For other cases, see Replevin, Cent. Dig. §§ 292-295; Dec. Dig. § 72.*] 3. TRIAL (§ 139*)-PROVINCE OF JURY-EVI James E. Ellegood, as trustee under a decree of court, sold the land upon which the trees in question were then growing to the Powellville Manufacturing Company, a corporation; but, before a conveyance was made by the trustee to said company, it had entered into an agreement with Elijah A. Perdue for the sale of said land to him, reserving to itself certain described timber standing on said land. Subsequently, the trustee united with the said company in a deed of said land to said Perdue, conveying to him all the right and title of the parties to the cause in which the trustee had been appointed to sell, and all the right and title of the said company in the land sold, and described in said deed, with the following reservation: "Reserving nevertheless from the operation of this deed, to the Powellville Company, all the pine timber measuring eight inches and over in diameter, at the height of six inches from the surface of the ground. And it is further agreed that the said Powellville Manufacturing Company is to have the right of ingress and egress for the term of eight years from January 1, 1903, for the purpose of cutting and taking away the timber hereby reserved; the said grantee having no right to cut any pine timber until the term aforesaid has expired." On October 3, 1903, Perdue and wife sold and conveyed the same land to Manlius K. Morris, the defendant, reserving, however, to the Powellville Company all the timber reserved in the deed above mentioned; the language of the first reservation being repeated in the deed last mentioned. In March, 1906, the Powellville Company, by an agreement in writing, sold all the timber so reserved to it to the appellants, copartners trading as the Petey Manufacturing Company, "with free ingress and egress for the purpose of cutting, hauling, or removing the said timber and lumber; the said party of the second part, its suc31, 1909, within which to cut and remove cessors, or assigns, to have until January said timber;" and on March 24, 1908, by another agreement in writing, the time for that purpose was extended until January 1, 1911. It was testified by one of the plaintiffs, without contradiction, "that the timber de James E. Ellegood, for appellant. John H. scribed in the replevin proceedings was a Handy, for appellee. PEARCE, J. This appeal is from a judgment of the circuit court for Wicomico county, directing a verdict in favor of the defendant below, in an action of replevin by the appellants for certain pine sawlogs and pine trees cut down and lying upon land belonging, at the time the suit was instituted, to the appellee. part of the timber described in the said deeds and agreements, and was all cut into logs upon the said land and ready to be hauled off of the same to the mill of the plaintiffs before January 1, 1911; that the last of it was cut about December 23, 1910, but that he had been unable to remove it all before January 1, 1911, and that on January 4, 1911, he went upon the land of the defendant, and hauled off one load of said timber, and thereupon the defendant notified the plaintiffs not to haul or remove any more of The appellants claim title to the property replevied upon the following state of facts: said timber; and that the plaintiffs there- upon it. Wetherall v. Garrett, 28 Md. 450. upon sued out the writ of replevin." The pleas were non cepit and property in defendant, upon which issues were joined, and the case was tried before the court, without a jury. [1] The defendant's first contention is that the case was properly withdrawn from the jury, because there was no evidence of demand by plaintiffs before the writ issued. It is true that the general rule requires a demand to be made before an action of replevin in the detinet (as this is) can be brought. "But when the plaintiff claims the ownership of the property, and the right of possession as incident to that ownership, and the defendant's right claimed is precisely the same, no demand is necessary." Cobbey on Replevin, § 447. “Where the defendant pleads ownership in himself [as he does here], he cannot defeat a recovery under the pretense that he would have surrendered the property, if demand had been made." Id. § 448. Morris on Replevin, § 78. Where circumstances show that a demand would have been unavailing, no demand is necessary. Howard v. Braun, 14 S. D. 579, 86 N. W. 635; Raper v. Harrison, 37 Kan. 243, 15 Pac. 219; Pringle v. Phillips, 5 Sandf. (N. Y.) 161. The circumstances of this case, and the defendant's plea of property in himself, preclude any idea that he would have heeded a demand. [2] The next contention of the defendant was that there was no evidence identifying the timber replevied as that which the plaintiffs were entitled to take under the deeds and agreements offered in evidence—that is, that it was cut from the land described in the said deeds and agreement, and that it was eight inches across the stump six inches above the ground-but we cannot agree to this. The witness Wimbrow testified that he was in charge of the cutting and hauling of the timber on the land described in the deeds and agreements; "that the timber described in the replevin proceedings was a part of the timber described in the deeds and agreements." This could not be so, unless it was eight inches across the stump six inches above the ground. He also testified that "it was all cut into logs upon the said land and ready to be hauled off of the same to the plaintiffs' mill before January 1, 1911; that the last of it was cut about December 23, 1910, and that the logs in dispute were on the said land of the defendant on January 1, 1911, but he was unable to haul them until January 4, 1911, when he went upon said land and hauled one load of logs, when defendant forbade him to haul any more; and that the plaintiffs then sued out this replevin." Before the court could, on that ground, have granted an instruction that the plaintiff was not entitled to recover, it must have assumed the truth of all Wimbrow's testimony tending to identify the timber, and all inferences of fact fairly deducible therefrom. Leopard v. C. & O. Canal, 1 Gill, 222; and the instruction given could not have been properly granted on that ground. [5] The final contention of the defendant is that all right and title of the plaintiffs in and to the timber described in the said deeds and agreements, whether then attached to the soil, or severed and worked into logs and remaining on the land on January 1, 1911, was on that date forfeited, under the express terms of said deeds and agreements, to the appellee as owner of the land upon which said timber was grown, notwithstanding that the purchase price of said timber had been fully paid, and notwithstanding that in this state, ever since the decision in Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104, a sale of standing timber was held to be "a sale of goods only," and the timber so sold thereafter to retain its character of goods and chattels. In Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449, Judge McSherry, speaking for the court, said: "We have no disposition to unsettle a doctrine that has been accepted and not questioned in Maryland for more than 40 years. It seems to us that the conclusion reached in Smith v. Bryan is sound. In transactions of the kind there and here involved, it is obvious that the intention of the parties to the contract-the owner of the timber on the one side, and the purchaser of it on the otherwas, not to deal with an interest in the land upon which the timber stood, but, respectively, to sell and acquire the product of the soil, and nothing more." And he adopted the language of Littledale, J., in Smith v. Lurman, 9 B. & C. 561, where it was said: "The object of a party who sells timber is, not to give the vendee any interest in his land, but to pass to him an interest in the trees, when they become goods and chattels." Here the trees not only became in legal contemplation goods and chattels in virtue of the intention of the parties to the contract, but by severance from the soil before January 1, 1911, they assumed the physical aspect and characteristics of chattels from the moment of severance. There is no reported decision in this state of the question here raised; but it has been considered in numerous cases in different states of this country, and so variously decided that reconciliation of the decisions is impossible. It may be said, however, that in the American courts the apparent cur[3,4] Even if this testimony were conced- rent and weight of authority seems to be ed to be inconclusive, yet, being derived from that timber, not severed from the soil on the a legal source, and being pertinent to the is- date limited for its removal, cannot be sever generally assigned therefor being that to hold otherwise would be to subject the owner of the soil to an unlimited restriction upon the use of his land, going almost to the destruction of the value of the land for any other use than the support of the timber for the exclusive benefit of the purchaser of the timber. In Williams v. Flood, 63 Mich. 491, 30 N. W. 93, the court said: "If the limitation as to time of removal should be construed as a covenant on the part of the purchaser that he would remove the timber in the time specified, the title to the timber would remain in the purchaser after the time specified, and he could still enter upon the premises and remove the same at his pleasure, being liable to the vendor for such damages as he should cause in so doing. The vendor would also have a right of action for a breach of the covenant in not performing the covenant as he had agreed. But it is perceptible at a glance that this might be a very inadequate remedy. The standing timber would be an incumbrance upon his land, and would deprive him of its use for agricultural purposes, and it would be a constantly recurring injury, quite incapable of estimation in dollars, and would depreciate the marketable value of his land while the timber remained." In that case some timber was cut, and some was still standing. The action was trespass by the vendee of the timber against the grantees of the vendor, who refused to permit the vendee to continue cutting, or to remove any cut timber. The trial court allowed a verdict for the value of both the cut and standing timber; and the court held the direction right as to the cut timber, but wrong as to standing timber. It thus held that as to the uncut timber the contract was upon a condition, the breach of which worked a forfeiture of the plaintiff's right and title to the remaining uncut timber, but not as to the timber cut up to the time when the defendant forbade his cutting more; and that, if the defendant refused to permit him to enter for the purpose of removing the timber cut up to that time, it would in law, amount to a conversion by the defendant of the timber so cut. The case of Plumer v. Prescott, 43 N. H. 277, was thus: Plumer sold to Prescott all the wood and timber on a certain lot; Prescott to have until a certain day to take it off. He cut all within the time limited, but left a part lying on the lot, and after the day limited entered and hauled it off. In an action for breaking the plaintiff's close and taking away his trees, it was held he could recover for the breaking of his close, but could not include in his damages the value of the wood. The court said: "When these trees were lawfully cut by the vendee within the time limited by the contract, they became the personal property of the vendee; waived or forfeited his title to the timber by neglecting to remove it within the time, it must stand, for aught we can see, upon the footing of any other personal property of the vendee, which, by his fault or neglect, and without any fault of the vendor, is upon the land of the latter. It is very clear, we think, that, having been lawfully severed from the land, it has become personal property; and at any period before the expiration of the limited time, at least, the title is vested in the vendee as fully as any other chattels If this be the case, it is difficult to see how the title can be lost by the neglect to remove it." In a later case, Hoit v. Stratton Mills, 54 N. H. 109, 20 Am. Rep. 119, the court went further and held, in a well-reasoned opinion, that an absolute grant of growing trees is not made a conditional grant by a stipulation, express or implied, as to the time of removal, and that if the grantee, after the expiration, either of a time expressly limited, or after a reasonable time, in the absence of express limitation, enters and cuts and carries away the trees so granted, he is liable for the entry, but not for the value of the trees; and the same conclusion was reached by the Supreme Court of Alabama in the recent case of Zimmerman Manufacturing Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58, where the authorities are reviewed in an elaborate opinion. In Halstead v. Jessup, 150 Ind. 85, 49 N. E. 821, the purchaser of certain timber was given four years to remove it, and at the expiration of that time some of the timber had been cut, but was lying on the land, and some had not been severed from the soil. The purchaser, being forbidden to remove any of this timber, sued for the value of all, cut and uncut. The trial court allowed a recovery for the cut timber, but not for that uncut, and the Supreme Court reversed the judgment, saying: "The law does not favor forfeitures, and will not enforce them, in the absence of clearly stated conditions of forfeitures." The foregoing three cases go farther than is necessary for us to go, as here we have only to consider cut timber, and our opinion is confined to the case before us. In Hicks v. Smith, 77 Wis. 146, 46 N. W. 133, certain pine timber was conveyed to plaintiff, with a stipulation it should be cut and removed before a certain date, and the defendants bought the land with knowledge of all the facts. Held, that all timber severed from the soil before the date fixed became the personal property of the purchaser, and could be recovered by him in replevin. In Macomber v. Detroit & Lansing R. R., 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. Rep. 713, the Supreme Court of Michigan, approving the Wisconsin case, supra, held that failure to remove logs, after they are cut, within the time named in the In Walker v. Johnson, 116 Ill. App. 145, it | mitted other passengers to indulge in drinking was held that such a time limit is a covenant to remove, and not a condition on which to base a forfeiture. In Irons v. Webb, 41 N. J. Law, 203, 32 Am. Rep. 193, it was held that, where in a deed of lands the timber was excepted, a stipulation that such timber should be removed in a given time did not make such exception conditional on removal; and the court stated, in Hoit v. Stratton Mills, supra, that, "where there is no express stipulation that the passing of the title shall depend upon removal within the time fixed, it does not necessarily follow as a matter of law (and, as a matter of fact, the parties do not generally understand) that the title is affected and the sale defeated by the nonperformance of that stipulation." The decisions upon this question, as we have said, are in much conflict, and there are cases from courts of high repute that the title of the grantee terminates with his right of entry. and disorderly conduct and to throw bottles out other passengers, that one of the bottles so of the car windows endangering the safety of thrown struck a passing train and broke, and a piece of the broken bottle entered the window due care, and cut and injured his eye, and furwhere plaintiff was sitting in the exercise of ther alleging that the injuries were caused by defendant's negligence in permitting such disorderly conduct, and that his injury could have been prevented by the use of due care by defendant, was not demurrable as failing to allege that defendant or its employés knew or could have known of such disorderly conduct long enough before the injury to have prevented failing to allege that such conduct was of such the throwing of the bottle in question, or as a character that defendant or its employés had reason to anticipate the accident, since it was not necessary that defendant's employés should have anticipated an accident from the throwing of the particular bottle if they should have anticipated an accident from the disorderly conduct. Cent. Dig. §§ 1260, 1270, 1273-1280; Dec. Dig. [Ed. Note.-For other cases, see Carriers, § 314.*] 2. WITNESSES (§ 268*)-CROSS-EXAMINATION -SCOPE-CONCLUSIONS. In Boisaubin v. Reed, 41* N. Y. 323, it was In a passenger's action for injuries caused held by the Court of Appeals that "the ven- by the disorderly conduct of fellow passengers, dee of timber has no title thereto by cutting after plaintiff had testified that he made no complaint about the disorder to any of the logs and leaving them upon the land; but to trainmen, he was asked why he thought it was complete his title he must also remove the the duty of the trainmen to interfere. Held, logs within the term. * * The defend- that an objection to such question was properant here cut down more timber than he couldly sustained, since its purpose was not to impeach or discredit the witness, disclose prejuremove within his term. He knew that his dice or bias, or test his truthfulness or acright to enter and carry away expired at a curacy, but merely to elicit his opinion upon a particular day. He attempted to overreach matter of law. the letter of his covenant, and must be allowed to bear his loss without remedy." In Saltonstall v. Little, 90 Pa. 423, 35 Am. Rep. 683, there was a reservation from a deed of land of all the pine timber thereon, with the privilege to cut and remove the same within 12 years thereafter; and it was held that, the parties having fixed their own time for the removal of the timber, the right of entry, as well as the right of property therein, fell with the expiration of the time. We are of opinion that the doctrine of the line of cases we have cited, sustaining the purchaser's title and right to the timber in controversy in the case before us, is the sounder and juster doctrine, and should be followed, rather than the harsh rule of forfeiture declared in New York and apparently in the Pennsylvania case cited. Judgment reversed, and cause remanded for a new trial, appellee to pay the costs. BALTIMORE & O. R. CO. v. RUDY. (Court of Appeals of Maryland. March 27, 1912.) 1. CARRIERS (§ 314*)-ACTIONS FOR INJURIES -DECLARATION-SUFFICIENCY. Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.*1 [Ed. Note. For other cases, see Witnesses, 3. CARRIERS (8 317*)-ACTIONS FOR INJURIES -EVIDENCE-ADMISSIBILITY. In an action by a passenger on an excursion train for injuries caused by disorderly conduct of other passengers sustained by him on she saw drinking on the train, was asked the return trip, a witness, after testifying that whether this was on the down trip or the return trip, to which objection was made after the witness had answered that it was on the down trip. the conditions on the down trip continued for On plaintiff's offer to show that such a length of time that they should have been known to the trainmen, the objection was who were drinking on the down trip were the overruled. Held, it appearing that the parties same as those so engaged on the return trip, the objection was properly overruled, since the testimony bore on the question whether danger anticipated. from the disorderly conduct should have been [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. 317.*] 4. CARRIERS (§ 318*)-ACTIONS FOR INJURIES -EVIDENCE-WEIGHT AND SUFFICIENCY. In a passenger's action for injuries caused by the disorderly conduct of fellow passengers, evidence held to support a recovery for plaintiff. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. 318.*] 5. CARRIERS (§ 321*)—ACTIONS FOR INJURIES -INSTRUCTIONS. In a passenger's action for injuries, instructions that if plaintiff was a passenger on defendant's round trip excursion train, and if A declaration, alleging that plaintiff was a passenger, and that it was defendant's duty to carry plaintiff safely to his destination, that defendant and its employés for a long time prior to the injury complained of knowingly per'For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes during the going trip and the return a number 6. CARRIERS (§ 321*)-ACTIONS FOR INJURIES In a passenger's action for injuries caused by the disorderly conduct of a fellow passenger, an instruction that the railroad company was not an insurer of the passenger's safety, but was only bound to use reasonable care, was properly denied, since, although it stated a correct abstract legal proposition, it would have been misleading unless qualified by the statement that the company was liable for torts or injuries by fellow passengers if it could have prevented the injury with the force at its command. The prayers granted and rejected mentioned in the opinion were as follows: Plaintiff's first prayer (granted as modified): "The plaintiff, by his counsel, prays the court to instruct the jury that, if they shall find from the evidence that on the 11th day of June, 1911, the plaintiff was a passenger on the defendant's railway round trip excursion train from Romney, W. Va., to Washington, D. C., and return, and that on said train while running from Romney to Washington, and also when returning from Washington, for a period of from 30 to 45 minutes just after leaving Washington, persons had congregated and were engaged in drinking beer and were acting in a disorderly manner and throwing empty beer bottles from the train, and that the defendant's agents and servants in charge of said train knew, or by the exercise of ordinary care should have known, of the said disturbances and of the throwing of said bottles, and that the said train, returning, left Washington about 7 o'clock on the evening of the said 11th day of June, and that from the time that said train left Washington, and for a period of from 30 to 45 minutes thereafter, several of the same persons who had engaged in said acts of disorder on the downward trip, if the jury find such acts, in the car in which the plaintiff was seated, were drinking, carousing, and acting in a disorderly manner to the disturbance of the passengers on said car, and at frequent intervals were throwing empty beer bottles from said car toward the east-bound track of the defendant's railway, and shall further find that the agents and servants in charge of the said defendant's train knew that trains were passing or likely to pass on said east-bound track, and shall further find that the throwing of said bottles toward said east-bound track occurred with such frequency and at such intervals before the plaintiff was injured, that the said agents and servants in charge of said train knew, or by the exercise of ordinary care could have known, of the throwing of said bottles, and that the persons throwing the same were drinking. carousing, and acting in a disorderly manner, and shall further find that the said agents and servants of the defendant knew of said drinking, carousing, bottle, throwing, and disturbances, or by the exercise of ordinary care and caution could have known of said drinking, carousing, bottle throwing, and disturbances, for a sufficient time before the accident to have prevented the throwing of the bottles which caused the accident, if the jury find it was so caused, and that on said Appeal from Circuit Court, Allegany Coun- return trip, when said train was from 30 to ty; Robert R. Henderson, Judge. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*] 7. CARRIERS (§ 321*)—ACTIONS FOR INJURIESINSTRUCTIONS. In a passenger's action for injuries, an instruction that, if some person on the train threw a glass bottle through an open window striking against a passing train on another track and breaking and causing a particle of the broken glass to strike plaintiff in the eye, plaintiff could not recover unless the employés of defendant knew or could have known that such person was likely to throw such bottle a sufficient time in advance to have prevented its throwing, and another instruction that if the injury was the result of some misconduct by another passenger so sudden and unanticipated that defendant's employés did not have time, after knowing of it, to prevent the misconduct, plaintiff could not recover, were properly denied, where the evidence indicated that the party, of whom the person throwing the bottle was one, had been drinking and carousing and throwing bottles, since the first instruction expressly, and the second impliedly, made defendant's liability conditional on anticipation of the throwing of the particular bottle, whereas it was liable if it could have anticipated injury from the general disorderly conduct. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1247, 1326-1336, 1343; Dec. Dig. § 321.*] Action by James Rudy against the Baltimore & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. 45 minutes west of Washington, and while said train was proceeding on the west-bound track, that the plaintiff was seated in the coach wherein said drinking, carousing, and throwing of bottles occurred, and that while |