to recover both the value of the use and occupation and the crop or damages equaling its value. It is hardly necessary to call attention to the extraordinary results which would follow a holding that it might do so. The result, however, would be that the defendant would be paying the plaintiff for the privilege of furnishing the seed, all the labor, and machinery necessary to sow and harvest the crop, and at the same time giving plaintiff the entire crop raised by his industry. In other words, defendant would be paying rent to plaintiff for the privilege of raising a crop for plaintiff.

We find still another reason why the plaintiff's right to recover is limited. It has seen fit to proceed against the defendant under the provisions of chapter 31, Rev. Codes 1905. This chapter provides for actions to determine conflicting claims to real property, and § 7520, the second section in said chapter, and § 7534, fix the nature of the recovery which may be had in an action brought under that chapter. The last-numbered section is not applicable to the case at bar, but § 7520 provides that a recovery may be had in an action by any party against the defendant personally served or who has appeared, or against the plaintiff, for the value of the use and occupation of the premises and for the value of the property wasted or removed therefrom, in case of a vendee holding over or a trespasser, as well as in case where the relation of vendor has existed. If such recovery is desired by plaintiff, he shall allege the fact, stating particularly the value of the use and occupation, the value of the property wasted or removed, and the value of the real property aside from the waste or removal, and demand appropriate relief in his complaint. A recovery of possession may also be had by the plaintiff or any defendant asking for the affirmative relief.

We think this plaintiff, who has proceeded under the chapter named, is limited to damages for the use of the land in case of his recovery. What we have already said shows the inequity and injustice of the rule contended for by appellant. In Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756, this question is directly passed upon, and the supreme court of that state says: "The fact that the owner of the premises may recover the rents and profits of the land for which it is being withheld precludes the idea of his right to recover the crops. It is the value and use of the land which the

owner recovers; and not the fruits of the land. A contrary rule would give the owner the value of the use of the land and the value of the labor of the farmer in producing the crop, for the crop contains the value of both. In this case not only did Nelson sow and care for the crop before plaintiff became the owner of the land, but he continued in possession of the same thereafter, and was permitted to harvest and thresh it and remove the same to his own granary. It would be an oppressive rule to permit the plaintiff to remain inactive while this was going on and Nelson adding to the gross value of the crop he had raised in the course of months of husbandry, and then deprive him of the entire property. We sanction no such rule." See also Brown v. Newman, 15 N. D. 1, 105 N. W. 941, which has some bearing on this question.

Section 4752, Rev. Codes 1905, provides that the owner of a thing owns all its products and accessions, and it is urged that this makes the appellant the owner of the crop raised on the land in controversy. No authorities are cited, and it is stated in appellant's brief that this statute has never been construed. Without deciding whether this section has any application to the present controversy, we remark that we have the impression that the word "accession" thus used applies to things added to the realty, and that there may be a point of time when the products of a farm cease to be the property of the owner of the land, and that where a crop has been raised by one in adverse possession, it ceases to be the property of the owner of the fee out of possession and becomes the property of the adverse possessor on its severance from the soil. We cite some authorities to this effect: Churchill v. Ackerman, 22 Wash. 227, 60 Pac. 406; Stockwell v. Phelps, 34 N. Y. 363, 90 Am. Dec. 710; Page v. Fowler, 39 Cal. 412, 2 Am. Rep. 462; Martin v. Thompson, 62 Cal. 618, 45 Am. Rep. 663; Lindsay v. Winona & St. P. R. Co. 29 Minn. 411, 43 Am. Rep. 228, 13 N. W. 191; Woodcock v. Carlson, 41 Minn. 542, 43 N. W. 479; Aultman & T. Co. v. O'Dowd, 73 Minn. 58, 72 Am. St. Rep. 603, 75 N. W. 756; Phillips v. Keysaw, 7 Okla. 674, 56 Pac. 695; Kirtley v. Dykes, 10 Okla. 16, 62 Pac. 808; Killebrew v. Hynes, 104 N. C. 182, 17 Am. St. Rep. 672, 10 S. E. 159, 251; Hinton v. Walston, 115 N. C. 7, 20 S. E. 164; Jenkins v. McCoy, 50 Mo. 348; Dollar v. Roddenbery, 97 Ga. 148, 25 S. E. 410; 8 Ballard, Real Prop. § 99; Cobbey, Replevin,

§ 378; Shinn, Rèplevin, § 227; 12 Cyc. Law & Proc. p. 977; 8 Am. & Eng. Enc. Law, p. 329. Many authorities are to the effect that even a trespasser or intruder is entitled to the crops raised by him, that is, crops not fructus naturales, after severance. Although the subject is elaborately discussed in many of these opinions, we only refer to one which seems to be most directly in point. In Churchill v. Ackerman, supra, the facts, in brief, were as follows: The defendant entered into possession of land in January, 1892, under a contract whereby the Northern Pacific Railway Company agreed to sell him such land. The contract provided that it should be forfeited in case of default, by serving notice upon the vendee in a manner substantially the same as that required by the statute of this state, and served by the appellant upon the respondent herein. On the defendant defaulting, the railway company, in October, 1896, notified him as provided in the contract, that all his right, title, interest, estate, and possession of, in, or to such land under said contract, had been wholly forfeited and terminated, and on the 31st of December, 1896, the defendant was again served with notice of forfeiture. The defendant remained in possession until about the 20th of August, 1897, and raised a crop during the season of 1897. About the 23d of July, 1897, the railway company sold by a similar contract the land to the plaintiff, who entered thereon and took 100 sacks of wheat raised, harvested, and threshed during that season by the defendant. The suit was brought to recover the value of the remainder of the wheat which had been retained by the defendant, and the court held that the title to crops follows actual possession, and not a right to possession merely, and that, therefore, when a person in adverse possession severs crops before recovery, the title is in him, and that the plaintiff could not recover for the crops raised and harvested by the defendant, although the crop was sown and the work of raising it all done subsequent to the notice of forfeiture taking effect, but that the defendant might recover from the plaintiff for the value of the crop so taken by him.

To entitle the appellant to a receiver of the crops raised in 1909, it is necessary for it to show ownership of the crop or some interest in it by way of lien or otherwise. Further discussion as to its ownership is unnecessary. That it had no lien upon it is clear. The contract between the parties created no lien in favor of the vendor on the

crop after severance. The debt of the respondent to the appellant,. if any, either before or after judgment, for the use and occupation, would be an unsecured indebtedness as to personal property of defendant until a levy of execution. To hold plaintiff entitled to a receiver to take possession of and conserve the crop, after severance, for the purpose of subjecting it to its claim for the value of the use and occupation, would be in effect to hold that any creditor may obtain a receiver over personal property, before judgment, to secure the payment of any simple and unsecured debt. Neither our statute nor the policy of our laws contemplates any such remedy.

The doctrine is thus stated: "To warrant the interposition of a court of equity by the aid of a receiver, it is essential that plaintiff should show, first, either a clear legal right in himself to the property in controversy, or that he has some lien upon it, or that it constitutes. a special fund out of which he is entitled to satisfaction of his demand, and, secondly, it must appear that possession of the property was obtained by defendant through fraud; or that the property itself or the income from it is in danger of loss from the neglect, waste, misconduct, or insolvency of the defendant. It is in all cases essential to the exercise of the jurisdiction that the plaintiff should have a present, existing interest in the property over which he seeks to have a receiver appointed." High, Receivers, §§ 11 & 12.

We are compelled to hold that a case was not made on the hearing on which the court could appoint a receiver.

The order of the District Court is affirmed.

LILLIAN B. TAUGHER v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, and Edwin P. Olson, Peter Kerner and Edwin P. Olson, Daniel Preszler and Adam Bollinger.

(129 N. W. 747.)

Witness - Impeachment - Cross-Exam

Trial — Evidence — Credibility of

ination.

1. In an action for damages for conversion of grain by a common carrier, in

Note.-For various phases of the question of conversion by carrier, see notes in 3 L.R.A. (N.S.) 1135; 6 L.R.A. (N.S.) 1048; and 18 L.R.A. (N.S.) 494.

trusted to it for transportation, one of the defenses relied upon by appellant was that the grain did not belong to the plaintiff consignor, but was the property of one C. In attempting to make proof of such ownership after proper foundation laid, and after C. had testified that the grain all belonged to plaintiff, C. was interrogated as to whether he had made statements to the effect that he owned the grain. Held: That such questions were proper as going to the credibility of C. as a witness, when offered for that purpose, and that it was reversible error of the trial court to sustain objections to such questions. Common Carriers Failure to Deliver Freight Evidence Contract.

2. On proof of delivery of property to a common carrier in sound condition, and of its failure to redeliver it, a sufficient case is made to sustain a recovery for loss in an action by the shipper on his contract, with certain exceptions, which have no application in this case, but other and different proof may be necessary in such case to sustain an action for conversion against the

3. To constitute conversion, there must be a positive tortious act, a tortious detention of personal property from the owner, or its destruction, or an exclusion or defiance of the owner's right, or the withholding of possession under a claim of title inconsistent with that of the owner.

Common Carriers

Failure to Deliver

Action on Contract.

4. The gist of the action on the contract in such case is the failure to deliver. while the gist of an action in trover is the conversion, and the mere showing of a breach of contract may not prove conversion.

5. If a shipper elects to sue for conversion and fails to establish the elements necessary to constitute conversion, his action must fail unless his complaint states facts necessary to sustain a recovery on the contract or some other proper form of recovery, as the burden is on the shipper, when he seeks the benefit of the measure of damages for conversion, to prove the act of conversion. Common Carriers Proof of Demand and Failure to Deliver.

Conversion

6. While proof of a demand and refusal to deliver the property or thing may establish conversion in connection with other facts, the demand and refusal are only evidence of conversion when the defendant was in such condition that it might have delivered the property if it would, and conversion does not lie against a common carrier for mere nonfeasance nor for goods stolen from the carrier, not for negligence causing the loss, nor for bare omission. Common Carriers

Attachment of Goods Carried

Duty to Notify Shipper. 7. When goods in transit are taken from the carrier by an officer under a writ of attachment against a third party, it is incumbent on the carrier, in an