120 US 376 Martin v. Thompson

120 U.S. 376

7 S.Ct. 586

30 L.Ed. 679


February 7, 1887.

M. Mullany, for motion.

No brief filed in opposition.


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This suit was brought by Martin, the defendant in error in durand v. Martin, infra, just decided, to recover of Thompson, one of the plaintiffs in error, a crop of wheat raised by him during the year 1878 on the land described in that case, which he took from the possession of Martin in 1876, and occupied adversely thereafter. The court has found as a fact that Martin never had possession of the crop before the commencement of this suit, and that it was raised by Thompson with his own labor and at his own expense, while he held exclusive possession of the land adversely to Martin and claiming title. From this it is clear that the question of the title to the land was not necessarily involved in this case; and, on looking into the opinion, which in California forms part of the record, we find that the decision was put entirely on the ground that the owner of land out of possession cannot recover from one in possession holding adversely under claim of title the crops raised by him in cultivating the soil. The remedy in such a case is by an appropriae action for the recovery of the possession of the land and damages for the detention. This does not present a federal question, and the motion to dismiss is granted.