Cases on the Law of Real Property (Classic Reprint)
Excerpt from Cases on the Law of Real PropertyAppeal from district court, Winnebago county; John C. Sherwin, Judge.Action in replevin. The subject of the controversy is an aerolite. In the district court the cause was tried without the aid of a jury, and the court gave judgment for the plaintiff, from which the defendant appealed.C. B. Elliot, C. H. Kelley, and W. S. Pat-tee, for appellant. Peters & Fisher and W. E. Bradford, for appellee.GRANGER, J. The district court found the following facts, with some others, not important on this trial: "That the plaintiff, John Goodard, is, and has been since about 1857, the owner in fee simple of the north half of section No. three, in township No. ninety-eight, range No. twenty-five, in Winnebago county, Iowa, and was such owner at the time of the fall of the meteorite hereinafter referred to. (2) That said land was prairie land, and that the grass privilege for the year 1890 was leased to one James Elickson. (3) That on the 2d day of May, 1890, an aerolite passed over northern and northwestern Iowa, and the aerolite, or fragment of the same, in question in this action, weighing, when replevied, and when produced in court on the trial of this cause, about 66 pounds, fell onto plaintiff's land, described above, and burled itself in the ground to a depth of three feet, and became imbedded therein at a point about 20 rods from the section line on the north. (4) That the clay after the aerolite in question fell it was dug out of the ground with a spade by one Peter Hoag-land, in the presence of the tenant, Elickson; that said Hoaglaud took it to his house, and claimed to own same, for the reason that he had found same and dug it up. (5) That on May 5, 1890, Hoagland sold the aerolite in suit to the defendant, H. V. Winchell, for $105, and the same was at once taken possession of by said defendant, and that the possession was held by him until same was taken under the writ of replevin herein; that defendant knew at the time of his purchase that it was an aerolite, and that it fell on the prairie south of Hoagland's land. (10) I find the value of said aerolite to be one hundred and one dollars ($101) as verbally stipulated in open court by the parties to this action; that the same weighs about 66 pounds, is of a black, smoky color on the outside, showing the effects of heat, and of a lighter and darkish gray color on the inside: that it is an aerolite, and fell from the heavens on the 2d of May, 1890; that a member of Hoagland's family saw the aerolite fall, and directed him to it." As conclusions of law, the district court found that the aerolite became a part of the soil on which it fell; that the plaintiff was the owner thereof; and that the act of Hoagland in removing it was wrongful.It is Insisted by appellant that the conclusions of law are erroneous; that the enlightened demands of the time in which we live call for, if not a modification, a liberal construction, of the ancient rule, "that whatever is affixed to the soil belongs to the soil," or, the more modern statement of the rule, that "a permanent annexation to the soil, of a thing in itself personal, makes it a part of the realty." In behalf of appellant is invoked a rule alike ancient and of undoubted merit, "that of title by occupancy;" and we are cited to the language of Blackstone, as follows: "Occupancy is the taking possession of those things which before belonged to nobody;" and "whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor, and as such arc returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or finder." In determining which of these rules is to govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules, and note, if at all, wherein the factЭта книга будет изготовлена в соответствии с Вашим заказом по технологии Print-on-Demand компанией ООО «Книга по Требованию». Print-on-Demand - это технология печати книг по Вашему заказу на цифровом типографском оборудовании. 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