Osborn v. Rabe, 67 Ill. 108 (1873)

Jan. 1873 · Illinois Supreme Court
67 Ill. 108
Richard Osborn v. William Rabe

Richard Osborn v. William Rabe.

Real estate—whether nursery trees cure. Where the ownership of land and nursery trees growing thereon is in the samé person, the latter, like fruit trees and grass, are part of the freehold, and descend with it to the heir, and can not he seized as chattels under an execution until severed from the land.

Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding. • •

This was an action of trespass quare clausum fregit, by William Rabe against Richard Osborn, for entering plaintiff’s close and digging up and carrying away trees, and shrubs growing upon the plaintiff’s land in a nursery. The defendant justified under two writs of execution against the plaintiff. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $325, from which judgment the'defendant prosecuted this appeal.

Messrs. Rowell & Hamilton, and Mr. O. W. Aldrich, for the appellant.

Messrs. Hughes & McCart, for the appellee.

Mr. Justice McAllister

delivered the opinion of the Court:

Appellee was the owner of the soil on which trees were growing in a nursery. Appellant, as sheriff, and having a fieri fiadas against appellee, levied it upon the growing trees as personal property, dug them up and removed them, for which appellee brought trespass and recovered. Appellant insists that growing trees in a nursery are personal property.*109Under some circumstances they may be, but when the ownership of the land and the trees is in the same person, they are part of the freehold. Growing trees, fruit and grass are parcel of the land, and descend with it to the heir, and can not be seized as chattels under an execution until severed from the land. Smith v. Price, 39 Ill. 28; Bank of Lansingburg v. Crary, 1 Barbour Sup. Ct. R. 542, and authorities there cited. This rule is so elementary that it is unnecessary to multiply citations.

We are of opinion that the rulings of the court below were correct, and that the evidence sustains the verdict. The judgment will, therefore, be affirmed.

Judgment affirmed.