This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law-writers. Besides, the plaintiff in this case, after alleging the above-mentioned wrongs, then asks for damages only for the wrongful conversion of the sand, which was personal property, and does not ask for damages for injuries done to his real estate. He seems to waive all the wrongs and injuries done with reference to his real estate and to his possession thereof, provided the digging and the removal of the sand was any injury to either, and sues only for the value of the sand which was converted. We think it is true, as is claimed by the defendant, that the petition states facts sufficient to constitute a cause of action in the nature of trespass quare clausum fregit; but it also states facts sufficient to constitute a cause of action in the nature of trespass de bonis asportatis and of trover; and we think the plaintiff may recover upon either of these latter causes of action, for they are unquestionably transitory; although it must be conceded that he cannot recover upon the former cause of action, for it is admittedly local in its character, and because the plaintiff has brought his action in a jurisdiction foreign to the one where this local cause of action arose. But as the plaintiff asks no relief pertaining specially to the local cause of action, but only such as may be given upon the facts of the transitory cause of action, we think he may recover.
All the old forms of action are abolished in Kansas. We now have no action of trespass quare clausum fregit, nor of trespass de bonis asportatis, nor of trover; but only one form of action, called a civil action. (Civil Code, sec. 10.) And under such form of action all civil actions must be prosecuted; and all that is necessary in order to state a good cause of action under this form is to state the facts of the case in ordinary and concise language, without repetition. (Civil Code, sec. 87.) And when the plaintiff has stated the facts of his case, he will be entitled to recover thereon just what such fact will authorize. Fitzpatrick v. Gebhart, 7 Kans. 42, 43; Kunz v. Ward, 28 Id. 132. We now look to the substance of things, and not merely to forms and fictions. If the facts stated by the plaintiff would authorize a recovery under any of the old forms of action, he will still be entitled to recover, provided he proves the facts. If the facts stated would authorize one or two or more kinds of relief, he may then elect as to which kind of relief he will obtain; and the prayer of his petition will generally indicate his election. And if one kind of relief is beyond the jurisdiction of the court, and the other within such jurisdiction, the plaintiff may elect to receive that kind of relief which is within the jurisdiction of the court.
We think the plaintiff may maintain his present action as an action in the nature of trespass de bonis asportatis, or trover When the sand was severed from the real estate it became personal property, but the title to the same was not changed or transferred. It still remained in the plaintiff. He still owned the sand, and had the right to follow it and reclaim it, in to whatever jurisdiction it might be taken. He could recover it in an action of replevin, Richardson v. York, 14 Me. 216; Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 374. Or he could maintain an action in the nature of trespass de bonis asportatis, for damages for its unlawful removal, Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 232; or he could maintain an action in the nature of trover for damages for its conversion, if it were in fact converted, Tyson v. McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; Riley v. Boston W. P. Co., 65 Mass. 11; Nelson v. Burt, 15 Mass. 204; Forsyth v. Wells, 41 Pa St. 291; Wright v. Guier, 9 Watts, 172; Mooers v. Wait, 3 Wend. 104; or he could maintain an action in the nature of assumpsit, for damages for money had and received, if the trespasser sold the property and received money therefor, Powell v. Pees, 7 Ad. & L. 426; Whidden v. Seelye, 40 Me. 255; Halleck v. Mixer, 16 Cal. 574; see also in this connection the case of Fanson v. Linsley, 20 Kans. 235.
In all cases of wrong, the tort or a portion thereof may be waived by the party injured, and he may recover on the remaining portion of the tort or on an implied contract, provided the remaining facts will authorize such a recovery. Mr. Waterman, in his work on Trespass, uses the following language:
"Section 1102. Although as standing trees are part of the inheritance and the severing them from it is deemed an injury to the freehold, for which trespass quare clausum f regit is the appropriate remedy, yet the party may waive that ground of recovery, and claim the value of the timber only thus severed and carried away. In the one case, the entering and breaking of the close is the gist of the action; in the other, the taking and carrying away of the property. In the latter case, the action is transitory, and not local." See also Nelson v. Burt, 15 Mass. 204; Halleck v. Mixer, 16 Cal. 574.
The plaintiff in error, defendant below, has cited a large number of authorities, but under our code of practice and procedure they hardly apply to the facts of this case. Those nearest applicable are the following: Am. Un. Tel. Co. v. Middleton, 80 N. Y. 408; Frost v. Duncan, 19 Barb. 560; Howe v. Wilson, 1 Denio, 181; Sturgis v. Warren, 11 Vt. 433; Baker v. Howell, 6 Serg. & R. 476; Powell v. Smith, 2 Watts, 126; Uttendorffer v. Saegers, 50 Cal. 496. The case of The Telegraph Company v. Middleton, supra, was where the defendant committed a trespass by cutting down telegraph poles in a highway, and throwing them in the ditches and on the fences on the sides of the highway, and leaving them there. There was no asportation from the premises, no conversion, and no intended asportation or conversion; and the court held that the action was, therefore, trespass quare clausum fregit, and not trover, and that the action was, therefore, local in its character and not transitory. The case of Frost v. Duncan, supra, was not decided by a court of last resort; and the main question decided was that two causes of action were improperly joined in one count. Besides, in that case the defendants were in the actual possession of the land, claiming the same as their own under a deed. The next four cases were not decided under any reformed code of procedure, and we do not think that the seventh and last case cited conflicts with the views that we have expressed. The fact that the question of title to real estate was incidentally raised in this case makes no difference. See the cases heretofore cited, and especially Harlen v. Harlen, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574. The plaintiff was in possession, claiming to own the property, while the defendant was a mere wrongdoer, with no claim of interest in the land.