CHOICE OF ACTIONS 79 



or trespass for their value * if they are subsequently re- 

 moved by the tenant. 



Since co-tenants of land each have an equal right of pos- 

 session of the premises, it is held that a tenant in common 

 cannot, except under statutory provisions, maintain an 

 action of trespass quare clausum fregit or trover for enter- 

 ing and removing timber; 2 nor does replevin he against a 

 co-tennant for seizing and holding timber which the first 

 tennant has cut for removal from the common land, 3 but 

 the cutting and removal of timber to which a tenant in 

 common is not entitled or the sale of the same will render 

 him liable to his co-tenants' in trover or trespass. 4 In the 

 absence of statute, or agreement to the contrary, the ordi- 

 nary measure of the liability of a tenant in common for 

 timber removed by him in good faith from the lands held 

 in common is the value of the timber while standing. 5 

 If no question as to title in land is involved, 6 a tenant in 

 common who receives money or other property for timber 

 unlawfully cut from the land held in common will be liable 

 in assumpsit to his co-tenants for their shares of the amount 

 received, 7 and it has been held that an action for an ac- 

 counting is not the proper method of determining the inter- 

 est of the co-tenants in a case of wrongful timber cutting. 8 



77. Recovery by Replevin. Where the circumstances 

 are such as to sustain the action of replevin the owner may 

 not only recover the logs 9 cut from the trees wrongfully 

 severed but he may ordinarily follow the product of the 



1. Lane v. Thompson, 43 N. H. 320; Schermerhorn v. Buell, 4 Den. (N. Y.) 422. 



2. Kane v. Garfleld, 60 Vt. 79, 13 Atl. 800; Wait v. Richardson, 33 Vt. 190, 78 Am. 



Dec. 622; But See, Mills, v. Richardson, 44 Me. 79. 



3. Bohlen v. Arthurs, 115 U. 8. 482, 6 S. Ct. 114, 29 L. Ed. 454; See also, LeBarren 



v. Babcock, 46 Hun. (N. Y.) 598, (afld. in 122 N. Y. 153, 25 N. E. 253, 19 Am. 

 St. Rep. 488, 9 L. R. A. 625). 



4. Clow v. Plummer, 85 Mich. 550, 48 N. W. 795; See, Trout v. Kennedy, 47 Pa. St. 



387; Wilson v. Reed, 3 Johns. (N. Y.) 175. 



5. Paepcke-Leicht Lbr. Co. v. Collins, 85 Ark. 414, 108 S. W. 511; Dodge v. Davis, 



85 Iowa 77, 52 N. W. 2; See also, Clow v. Plummer, 85 Mich. 550, 48 N. W. 795; 

 Walling v. Burroughs, 43 N. C. 60. 



6. Kran v. Case, 123 111. App. 214. 



7. Miller v. Miller, 7 Pick. (Mass.) 133, 19 Am. Dec. 264; White v. Brooks, 43 N. H. 



402; Blake v. Milliden, 14 N. H. 213; Holt v. Robertson, McMull. Eq. (S. C.) 

 475; But see, Mooers v. Bunker, 29 N. H. 420; Gilmore v. Wilbur, 12 Pick. 

 (Mass.) 120, 22 Am. Dec. 410; Grossman v. Lauber, 29 Ind. 618. 



8. U. S. v. Northern Pac. R. Co., 6 Mont. 351, 12 Pac. 769; See also, McGahan v. 



Rondout Nat'l Bank, 156 U. S. 218, 15 S. Ct. 347, 39 L. Ed. 403. 



9. Firmin v. Firnain, 9 Hun. (N. Y.) 572; Nesbitt v. St. Paul Lbr. Co., 21 Minn. 491; 



Ely v. U. S., 4 Dillon 464 (U. S. Cir. Ct. Minn. 1867). 



