Smith v. Colby , 67 Me. 169 ( 1878 )

Peters, J.

The question is, whether an action of trover is maintainable upon the following facts: The defendant was superintendent of the poor house of the town of Brunswick ; the plaintiff, being an adjoining proprietor, located a portion of his fence over upon the land of the town ; the defendant removed the fence under the direction of the selectmen of the town, carrying it some distance away, and refused, upon demand, to return it without the direction or permission of the town officers to do so; it turned out that, in removing the fence which plaintiff had wrongfully located over upon the poor farm, the defendant also took op and carried away a small section of fence belonging to the plaintiff and situated either on the dividing line between the plaintiff’s land and the town farm or upon the plaintiff’s land. For this small portion of the fence the plaintiff recovered. We think the verdict must stand.

It is true, as contended, that a person acting under'the direction of another as servant or bailee might not be guilty of conversion merely by carrying articles from place to place, without any knowledge of wrong doing, supposing the articles to belong to or to be rightfully in the possession of the person from whom the same are received. It is usually a protection to such person that the chattels are received from one in possession of them, possession being deemed prima facie evidence that he is the owner thereof. A different rule would impose innumerable burdens and liabilities upon servants, trustees, bailees, carriers and other agents. Burditt v. Hunt, 25 Maine, 419. Fifield v. Maine Central, 62 Maine, 77, 82. Nor does a demand upon such agent, servant or bailee to deliver to the true owner, and a neglect to comply with the demand, amount to conversion, if at the time of the demand it is not- within the power of such person to deliver the property. Davis v. Buffum, 51 Maine, 160; and cases supra.

This case, however, differs from the cases supposed. Here, the defendant with his eyes open took and carried the plaintiff’s property away. He took it from the plaintiff’s possession if not from his land. He knew that the controversy between the plaintiff and the town related only to fence upon the town land. Whether done through blunder or misjudgment, the taking was wrongful and its responsibility rests upon him. This act amounts to conversion, whether the property was afterwards wrongfully detained or not.

Exceptions overruled.

Appleton, C. J., Walton, Virgin and Libbey JJ., concurred».