
    John Stevens v. Peter Perrier.
    July Term, 1873.
    1. Appeal: Pleadings on: Discretion of Court. An appeal was taken-from the judgment of a justice of the peace to the district court in 1869, in accordance with the law as it then was, but the petition was not filed as required by rule 15 of the supreme court then in force. The trial was. had nearly two years after the petition was filed, at which time, after the plaintiff had rested his case, the court allowed the defendant to file an answer which did not set up anything but what the defendant had a right to prove in the justice’s court. The trial then proceeded to a termination, both parties introducing evidence, and neither asking for a continuance. Held, that it was within the discretion of the court below to allow said answer to be filed, and that the court did not err in so doing. [Prater v. Snead, post, *447.]
    2. Contract: Timber on Government Land. A contract between two-individuals for the purchase and sale of timber standing on government land is void.
    3. Trespass on Government Lands: Action by Trespasser. Where P. resides upon and occupies a piece of government land as a “claim,” and S., without any authority from P., cuts timber thereon for saw-logs and rails, and allows the same to remain on said land, and P. afterwards uses. the timber, held, that S. has no action against P. for the recovery of anything for said timber.
    [4. Trespass: Ownership. A trespasser who severs property from the realty, and lets it remain on the land from which he severs it, never be- - comes, even in criminal law, the possessor of it.]
    
      Error from Neosho district court.
    The case is stated in the opinion.
    
      Stillwell é Bay lies, for plaintiff in error.
    
      C. F. Hutchings, for defendant in error.
   * Valentine, J.

On the eighteenth of December, 1868, Stevens sued Perrier and two other persons, before a justice of the peace, to recover $100 for the alleged conversion by Perrier and his co-defendants of certain saw-logs and rail timbers which Stevens claimed to have cut down and severed from the land on which they stood. Stevens recovered a judgment, December 30, 1868, on default, before said justice, for the full amount of his claim, from which judgment the defendant, on the ninth of January, 1869, appealed to the district court. The transcript of the proceedings before the justice was filed in the office of the clerk of the district court on the twenty-ninth of February then next, and the plaintiff filed his petition with said clerk on the fourteenth of April following. The ease was continued from term to term in the district court until December 13, 1871, when it was tried before the court and a jury. After the plaintiff had .rested his case, the defendant, by leave of court, filed an answer, admitting the taking of the logs and rail timbers, but claiming property in himself. The trial then proceeded to a termination, the defendant introducing evidence, and the plaintiff introducing additional evidence. The jury found for the defendant, and judgment was rendered accordingly. A motion for a new trial having been made and overruled, Stevens now brings the case to this court for review.

The first error assigned is that the court below erred in allowing the defendant to file his answer as aforesaid. We shall decide this, case upon the theory that rule 15 of the supreme court rules (2 Kan. *12) was valid, and applied to this case, and still we think that no such error was committed as will justify a reversal of the. judgment. Under the pleadings as they stood in the justice’s court, the defendant had a right in that court to prove any defense, counter-claim, or set-off that he might have had, and therefore his answer in the district . court did not give him any more or greater rights than *he had in the justice’s court. The petition itself does not seem to have been filed in the district court within the time prescribed by said rule 15, and therefore a strict compliance with the rule should not have been required in the filing of the answer. We do not think that it was intended by rule 15 to take away all discretion from the district court in allowing defenses to be set up in that court after the time fixed for filing an answer had by that rule expired. We suppose that the district court could still, after said rule 15 was adopted, allow defenses to be set up in that court upon such terms as would promote justice, although the time fixed for filing an answer had already expired under said rule. We cannot suppose that the rule was intended to be mora rigid, unyielding, unbending, unrelaxing, than the rule of law is in similar cases. The only question, in our opinion, is whether the court below abused its discretion in allowing said answer to be filed. We cannot say that it did. The plaintiff did not pretend to,be surprised, nor suggest any terms upon which the answer might be filed, nor ask for a continuance, nor object to proceeding immediately with the trial, nor make any pretense that he was not then as well prepared for a trial as he ever had been, or ever would be, or ever could be. The court probably did just right.

There are many assignments of error, and many questions raised by the briefs of counsel, but the one main question in the case is as to the right of the plaintiff to recover upon the facts proved. The plaintiff and defendant resided upon adjoining “claims.” The plaintiff’s claim was prairie, and the defendant’s claim was principally timber. The land occupied by these claims belonged to the government of the United States, and was a part of the “Osage Ceded Lands.” The said timber was cut on the defendant’s claim. Prior to the cutting of the same, and while said claim was occupied by one Chaney, the plaintiff, by a parol contract, purchased said timber from said Chaney. The timber was cut down while the claim was occupied by the defendant, and was allowed to remain on the ground *where cut. The defendant afterwards used this timber. We think the evidence shows that he used it in making improvements on his claim, and did not remove it from the claim; but this is not very clear. Afterwards, and in December, 1869, the defendant purchased his claim from the government, under the joint resolution of congress of April 10, 1869, (16 U. S. St. at Large, 55,) and now owns the land occupied as said claim. Under these facts we think the plaintiff never had any right to or interest in said timber. The parol contract with Chaney was void, for Chaney had no right to sell timber standing on government land, by parol contract, or by any other kind of contract. The plaintiff never obtained any kind of ownership to said timber. When he cut it, he had no interest in it, and he never obtained even that kind of ownership which a trespasser may obtain by reducing the property of another to his own possession. Instead of removing it, as he might have done, and thereby reducing it to his own possession, he let it remain where he cut it, on the land of the government, in the constructive possession of the government, and in the actual possession of the defendant.'/ A trespasser who severs property from the realty, and .lets it remain on the land from which he severs it, never becomes, even in criminal law, the possessor of it. If he severs it from the realty and carries it away by the same act, he thereby so reduces it to his own possession that he does not commit larceny with regard to that property, for no man can commit larceny at common law by taking or converting property already in his own possession. But if he severs the’ property from the realty, and allows it to remain on the land from which he severs: it, it then becomes so absolutely the personal property of the owner of the land, and so perfectly in the possession of such owner, that if' the trespasser should afterwards return, and take the property, he would commit larceny. 2 Bish. Crim. Law, §§ 677-680. Even as between the plaintiff and defendant, the defendant had the better-right to the timber. Admitting that they were both trespassers upon government land, (and technically we suppose they were, ^although probably neither of them thought so at the time,) and still the defendant had the better right, for the plaintiff was not only a trespasser upon the government, but he was also a. trespasser upon the actual possession of the defendant. When the plaintiff cut the timber, he allowed it to remain, not only upon government land, but upon land in the actual possession of the defendant; and in so doing he really allowed it to remain in the actual possession of the defendant; and, as between trespassers, the trespasser in possession always has the better right. Taking this view of the case, the defendant, as between the plaintiff and defendant, must be deemed to have been the owner of said timber. This timber was not cut within the inclosure of the defendant. It was cut outside of the same, but it was cut on the defendant’s claim, and that, we suppose, is sufficient to place it within the actual possession of the defendant. The judgment of the court below is affirmed.

(All the justices concurring.)  