Ordinarily a mere trespasser on land derives no benefit from his wrongful act and therefore may not be sued in assumpsit. If, however, he severs and removes timber, stone, minerals, soil, or any products of the soil, he may be required to make restitution in value.2 And since the trespass on the land and the conversion of the thing severed from the land probably constitute but a single cause of action, the election to sue in assumpsit precludes any action for damages.3
It is evident that one who wrongfully takes possession of and occupies another's land is unjustly benefited to the extent of the value of its use. Where possession is taken under claim of right and a question of title is thereby raised, assumpsit may be thought an unsuitable remedy.1 But where the entry is conceded to be wrongful, assumpsit for use and occupation would seem to be appropriate. For a reason of an historical nature, however, it is unavailable.2 Apparently because the action of debt for rent reserved survived the tenant, and moreover could not be defeated by wager of law, the courts thought it unnecessary to recognize indebitatus assumpsit as a proper remedy for the collection of rent. And though by special act of Parliament3 indebitatus assumpsit was finally allowed against a tenant upon a parol demise, the courts have restricted its use to the cases of genuine tenancy contemplated by the statute.4 They have held, furthermore, that since the trespasser cannot be held in assumpsit for the use and occupation of the land, the income that he may derive from letting the land is not recoverable in the count for money had and received.1
1 For a more extended criticism of Cooper v. Cooper, supra, see Keener, "Quasi-Contracts," pp. 323-326.
2 Powell v. Rees, 1837, 7 Adol. & El. 426, (coal); Phelps v. Church of Our Lady, 1900, 99 Fed. 683; 40 C. C. A. 72, (stone); Asher v. Cornett, 1908, (Ky.) 113 S. W. 131, (timber); Welch v. Bagg, 1863, 12 Mich. 41, (pasturing cows: but see St. John v. Antrim Iron Co., 1899, 122 Mich. 68; 80 N. W. 998); Norden v. Jones, 1873, 33 Wis. 600; 14 Am. Rep. 782. See Stearns v. Dillingham, 1850, 22 Vt. 624; 54 Am. Dec. 88, (must be turned into money). But see Bigelow v. Jones, 1830, 10 Pick. (Mass.) 161; Parks v. Morris, Layfield & Co., 1907, 63 W. Va. 51; 59 S. E. 753, (assumpsit will not lie when title to land involved).
3 Roberts v. Moss, 1907, 127 Ky. 657; 32 Ky. Law Rep. 525; 106 S. W. 297; 17 L. R. A. (N. S.) 280.
1 See Lindon v. Hooper, 1776, Cowp. 414; Phelps v. Church of Our Lady, 1900, 99 Fed. 683; 40 C. C. A. 72; Downs v. Finnegan, 1894, 58 Minn. 112; 59 N. W. 981; 49 Am. St. Rep. 488; Parks v. Morris, Layfield & Co., 1907, 63 W. Va. 51; 59 S. E. 753. But see Illinois, etc., R. Co. v. Ross, 1904, 26 Ky. Law Rep. 1251; 83 S. W. 635, 638.
2 See Ames, "Assumpsit for Use and Occupation," 2 Harv. Law Rev. 377.
3 Statutes 11 Geo. II. c. 19, sec. 14.
4 Tew. v. Jones, 1844, 13 Mees. & W. 12; Adsit v. Kaufman, 1903, 121 Fed. 355; 58 C. C. A. 33 ; Stringfellow v. Curry, 1884, 76 Ala. 394 ; Stockett v. Watkin's Admrs., 1830, 2 Gill & J. (Md.) 326; 20 Am. Dec. 438; Central Mills Co. v. Hart, 1878, 124 Mass. 123; Lockwood v. Thunder, etc., Boom Co., 1880, 42 Mich. 536; 4 N. W. 292; Henderson v. Detroit, 1886, 61 Mich. 378; 28 N. W. 133; Hurley v. La-moreaux, 1882, 29 Minn. 138; 12 N. W. 447; McLane v. Kelly, 1898, 72 Minn. 395; 75 N. W. 601; Aull Savings Bank v. Aull, 1883, 80 Mo. 199; Janouch v. Pence, 1903, 3 Neb. (Unof.) 867; 93 N. W. 217; Dixon v. Ahern, 1887, 19 Nev. 422; 14 Pac. 598; Smith v. Stewart, 1810, 6 Johns. (N. Y.) 46; 5 Am. Dec. 186; Preston v. Hawley, 1886, 101 N. Y. 586; 5 N. E. 770; Ackerman v. Lyman, 1866, 20 Wis. 454. See Woodbury v. Woodbury, 1866, 47 N. H. 11, 21-22; 90 Am. Dec. 555; Baldwin v. Bohl, 1909, 23 S. D. 395; 122 N. W. 247. But see Mayor, etc., of Newport v. Saunders, 1832, 3 Barn. & Ad. 411; Illinois, etc., R. Co. v. Ross. 1904, 26 Ky. Law Rep. 1251; 83 S. W. 635, 638; National Oil Refining Co. v. Bush. 1879, 88 Pa. St. 335. For a criticism of the rule, see "Action of Use and Occupation against a Trespasser," Eugene McQuillan, 23 Cent. Law Journal 387.
It is interesting to note, in this connection, that the measure of recovery in the tort action for mesne profits is not the damages suffered by the plaintiff, but the reasonable value of the use and occupation of the land,2 - precisely the same rule as would be enforced in an action in indebitatus assumpsit.
Even if the trespass consists merely of a wrongful but not exclusive use of land - for instance, the occasional use of one's building for the storage of the trespasser's goods, or of one's private roadway for their transportation, - the wrongdoer, it would appear, is enriched to the extent of the value of such use. But here, again, indebitatus assumpsit will not lie. Moreover, in a case of this sort in which it appeared that a trespasser had used an underground roadway for the carriage of coal, relief in equity was denied on the ground that the trespasser "saved his estate expense, but he did not bring into it any additional property or value belonging to another person." 3 This decision is criticized in another section (ante, Sec. 275).