The judgment appealed from must be affirmed. * * *

8. In the Method and Means of Vindicating Property Rights.

a. Kinds of Action.

(1.) For the Recovery of Property.

Ricketts V. Dorrel

55 Indiana, 470. - 1876.

Replevin by Dorrel for a quantity of rails and stakes which Ricketts had seized and built into a fence. Judgment below for Dorrel. On appeal the judgment was reversed. This is a petition for a rehearing.

Biddle, J. - The earnestness of the petition for a rehearing in this case convinces us of the sincerity of the petitioner, but it seems to us that he has misconceived the scope of the opinion pronounced. He labors to convince us that when a tree is wrongfully converted into rails, they may be replevied; and when timber is wrongfully cut and converted into coal, the coal may be replevied; and cites other similar cases. The opinion nowhere controverts these propositions. When an article is made personal property by being severed from the realty to which it first belonged, it may be replevied as long as its separate identity can be ascertained, whatever shape it may take; but when an article of personal property, though wrongfully taken, has become real estate by being attached to the realty, it cannot be replevied, because it has lost its separate identity, and its character as personal property. To apply these principles to the present case: - If rails are wrongfully taken from a fence, they become personal property and may be replevied by the owner; but if rails are wrongfully taken and put into a fence, and thus made a part of the realty, they cannot be replevied, because they have lost their separate identity, and cannot be delivered without detaching them from the realty, of which they have become a part. And this is precisely the case we are considering. We have examined the authorities cited by the petitioner, and, as we read them, all the cases in replevin are against the petitioner. In Davies v. Easley, 13 111. 192, it is held, that a party may maintain replevin for boards made from trees wrongfully cut on his land; and also held that the owner of personal property, wrongfully taken, may replevy it so long as it can be identified, unless it is annexed to or made a part of some other thing which is the principal, as timber converted into a house, grain converted into malt, or coin converted into a cup. The appellee also labors hard, and cites many authorities, to show us that a wrongdoer cannot obtain any title in the property he wrongfully takes, as against the owner - a proposition nowhere disputed; but it does not follow that the action of replevin will lie in all cases, merely because the owner has not lost the title to his property. Nor will our statute abolishing the distinction between the forms of actions aid the appellee. The Legislature cannot abolish the distinction between personal and real actions, nor between actions to enforce a specific performance of a contract or recover a specific article, and those which seek merely a money judgment; nor between actions arising out of tort, and those founded upon contract; because the distinction exists in fact, and not in mere form. The distinction between the actions of debt, covenant, assumpsit, trover, trespass, trespass on the case, and suits in equity to recover money directly, may be and is abolished by the code, because the remedy sought in all these cases is the same, namely, a money judg-ment. The appellee, therefore, cannot bring his action in replevin to recover his specific rails and, failing in that, maintain his case to recover a money judgment for their value, merely because he has not lost his property in the rails. The law affords him ample remedy if he rightly chooses it; but it is no part of the duty of this court to instruct him as to what that remedy is.

The petition is overruled.

Brewster V Hill

1 New Hampshire, 350. - 1818.

Trespass in ejectment to recover a term of years. Wheelock owned the premises in question in 1796 and leased them to O. for 985 years. O. entered on the premises and then died bequeathing all his "personal estate" to A. P. and wife, who, in 1807, conveyed their interest to plaintiff. Verdict for plaintiff subject to opinion of this court.

Woodbury, J. - delivered the opinion of the Court.

In this case the sole question is, whether the term mentioned in the plaintiff's writ would pass under a devise of "personal estate."

The boundaries between real and personal estate are, in certain instances, scarcely distinguishable; and, indeed, some species of property exist which have been deemed real or personal, according to the character of the claimants, and the purpose for which they claim. Vide, autho. cited, post; Mills v. Pierce, Rock. Feb. 1819.

But we are not aware of any established principles or precedents, which would make leases for years anything more than "personal estate." The law in relation to them was settled before the land itself could be conveyed. Bac. Leas. Co. Litt. 456. They were then for short terms, and with an exclusive view to aid great landholders in the cultivation of the soil. Hence the lease passed to the lessee no interest in the premises; but was a mere contract, for a breach of which a recovery in damages against the lessor was the only remedy. Vaugh. 127; Hayes v. Bickerstaff.

As the custom altered and leases for longer terms became common, the remedy of the lessee was by statute extended, and he was enabled to protect himself in the occupation of the land itself. 21 Hen. 8, ch. 15.

Yet all the incidents of a mere chattel were still attached to the term whether its continuance was for one or for a hundred years. Bac. Leas. Livery of seizin was not necessary to pass the interest as it was to pass real estate. Litt. sec. 59. The lessee could not sustain a real action; but when ousted was obliged, as this plaintiff has been in this instance, to resort to trespass in ejectment. 3 Bl.