The Isle Royal Mining Co. v. Hertin.

foundation for it by showing the cutting of the wood under an honest mistake as to the location of their land, the taking possession of the wood afterward by the mining company, and its value in the condition in which it then was and where it was, as compared with its value standing in the woods.

We understand it to be admitted by the plaintiffs that no authority can be found in support of the proposition thus stated. It is conceded that at the common law when one thus goes upon the land of another on an assumption of ownership, though in perfect good faith and under honest mistake as to his rights, he may be held responsible as a trespasser. His good faith does not excuse him from the payment of damages, the law requiring him at his peril to ascertain what his rights are, and not to invade the possession, actual and constructive, of another. If he cannot thus protect himself from the payment of damages, still less, it would seem, can he establish in himself any affirmative rights, based upon his unlawful, though unintentional encroachment upon the rights of another. Such is unquestionably the rule of the common law, and such it is admitted to be.

It is said, however, that an exception to this rule is admitted under certain circumstances, and that a trespasser is even permitted to make title in himself to the property of another where in good faith he has expended his own labor upon it, under circumstances which would render it grossly unjust to permit the other party to appropriate the benefit of such labor. The doctrine here invoked is the familiar one of title by accession, and though it is not claimed that the present case is strictly within it, it is insisted that it is within its equity, and that there would be no departure from settled principles in giving these plaintiffs the benefit of it.

The doctrine of title by accession is in the common law as old as the law itself, and was previously known in other systems. Its general principles may therefore be assumed to be well settled. A willful trespasser who expends his money or labor upon the property of another, no matter to what extent, will acquire no property therein, but the owner may reclaim it so long as its identity is not changed by conversion into some new product. Indeed, some authorities hold that it may be followed even after its identity is lost in a new product; that grapes may be reclaimed after they have been converted into wine, and grain in the form of distilled liquors. Silsbury v. McCoon, 3 N. Y. 379. See Riddle v. Driver,

The Isle Royal Mining Co. v. Hertin.

12 Ala. 590. And while other authorities refuse to go so far, it is on all hands conceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the value of the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the value of the article as it was before the conversion. This is a thoroughly equitable doctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from any loss. But where the identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush. Perhaps no case has gone further than Wetherbee v. Green, 22 Mich. 311; s. c., 7 Am. Rep 653, in which it was held that one who, by unintentional trespass, had taken from the land of another, young trees of the value of $25, and converted them into hoops worth $700, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established.

But there is no such disparity in value between the standing trees and the cord wood in this case as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed as a rule that a man prefers his trees cut into cord wood rather than left standing, and if his right to leave them uncut is interfered with even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage carelessness than

The Isle Royal Mining Co. v. Hertin.

the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration. Why should one be vigilant and careful of the rights of others if such were the law? Whether mistaken or not is all the same to him, for in either case he has employment and receives his remuneration; while the inconveniences, if any, are left to rest with the innocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.

A case could seldom arise in which the claim to compensation could be more favorably presented by the facts than it is in this; since it is highly probable that the defendant would suffer neither hardship nor inconvenience if compelled to pay the plaintiffs for their labor. But a general principle is to be tested, not by its operation in an individual case, but by its general workings. If a mechanic employed to alter over one man's dwelling-house shall by mistake go to another which happens to be unoccupied and before his mistake is discovered, at large expenditure of labor shall thoroughly overhaul and change it, will it be said that the owner, who did not desire his house disturbed, must either abandon it. altogether, or if he takes possession, must pay for labor expended upon it which he neither contracted for, desired nor consented to? And if so, what bounds can be prescribed to which the application of this doctrine can be limited? The man who by mistake carries off the property of another will next be demanding payment for the transportation; and the only person reasonably secure against demands he has never assented to create will be the person who, possessing nothing, is thereby protected against any thing being accidentally improved by another at his cost and to his ruin.

The judgment of the Circuit Court must be reversed, with costs, and a new trial ordered.

Judgment reversed.

NOTE BY THE Reporter.-The question of identity discussed in this case is sometimes a difficult one. The precise line at which the identity of the staple loses itself in the article manufactured from it, is not always easily determinable.

In Snyder v Vaux, 2 Rawle, 427, where a willful trespasser had cut trees into rails and posts, the court said: "A willful trespasser cannot acquire title to property, merely by changing it from one article into another, as by working trees cut down, into shingles, or into cord wood, logs, or rails. And that the law has been so from time immemorial, is evident from the year books, where it is said, that whatever alteration of form any property may undergo, the owner thereof may take it in its new shape, provided he can prove the

identity of the original materials; as if leather be made into shoes, cloth into a garment trees squared into timber, or iron made into bars." So held, in regard to trees converted into shingles; Betts v. Lee, 5 Johns. 848; wood converted into charcoal; Curtis v. Groat, 6 Johns. 168; logs converted into boards; Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505; and black salt converted into pearl ashes; Babcock v. Gill, 10 Johns. 287. In Süsbury v. McCoon, 4 Denio, 332, a case of corn converted into whisky, it was held by the New York Supreme Court, that the rule, that property wrongfully taken and changed by process of manufacture into a different species of property, so as to lose its identity, cannot be retaken by the former proprietor, does not depend on the motives of the wrong doer, but applied as well to the case of a willful trespass, as to a taking by mistake. This was reversed on appeal, 3 N. Y. 379, where it was conceded that if a chattel be converted by an innocent purchaser or holder into a thing of a different species, as where wheat is made into bread, olives into oil, or grapes into wine, the original owner cannot reclaim it. "In a case of this kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change; but he is put to his action for damages as for a thing consumed, and may recover its value as it was when the conversion or consumption took place." The court further say, page 386:

"There is great confusion in the books upon the question, what constitutes change of identity? In one case (5 Hen. 7, fol. 15), it is said that the owner may reclaim the goods so long as they may be known, or, in other words, ascertained by inspection. But this, in many cases, is by no means the best evidence of identity; and the examples put by way of illustration serve rather to disprove than to establish the rule. The court say that if grain be made into malt it cannot be reclaimed by the owner, because it cannot be known. But if cloth be made into a coat, a tree into square timber, or iron into a tool, it may. Now, as to the cases of the coat and the timber they may or may not be capable of identification by the senses merely, and the rule is entirely uncertain in its application: and as to the iron tool, it certainly cannot be identified as made of the original material, without other evidence. This illustration, therefore, contradicts the rule. In another case (Moore's Rep. 20) trees were made into timber, and it was adjudged that the owner of the trees might reclaim the timber, "because the greater part of the substance remained." But if this were the true criterion it would embrace the cases of wheat made into bread, milk into cheese, grain into malt, and others which are put into the books as examples of a change of identity. Other writers say that when the thing is so changed that it cannot be reduced from its new form, to its former state, its identity is gone. But this would include many cases in which it has been said by the courts that the identity is not gone; as the case of leather made into a garment, logs into timber or boards, cloth into a coat, etc. There is, therefore, no definite settled rule on this question; and although the want of such a rule may create embarrassment in a case in which the owner seeks to reclaim his property from the hands of an honest possessor, it presents no diffculty where he seeks to obtain it from the wrong-doer; provided the common law agrees with the civil in the principle applicable to such a case."

Judge BRONSON, who gave the prevailing opinion in the court below, was a member of the court of review, and, in a dissenting opinion, made the following observations on the subject of identity:

"There are many cases where the title to a personal chattel may be turned into a mere right of action without the consent of the owner, although the thing was taken by a willful trespasser, or even by a thief. If a man steal a piece of timber, and place it as a beam or rafter in his house, or a nail, and drive it into his ship, or paint, and put it upon his carriage, the owner cannot retake his goods, but is put to his action for damages; and this is so in the civil, as well as at the common law. If a thief take water from another's cistern, and use it in making beer; or salt, and use it in pickling pork; or fuel, and use it in smoking hams, I suppose no one will say, that the owner of the water, the salt or the fuel may seize the beer, the pork or the hams. And there is no better reason for giving him the new product, where sand is made into glass, malt into beer, coal into gas, or grain into whisky. In the case now before us, the civilians would not go so far as to say that

The Isle Royal Mining Co. v. Hertin.

the owner of the grain might take the swine which were fattened on the refuse of the grain after it had gone through the process of distillation. And yet that would hardly be more unjust or absurd than it would be to give him the whisky. There must be a limit somewhere, and I know of none which is more safe, practical and just, than that which allows the owner to follow a chattel until it has either been changed into a different species, or been adjoined to something else, which is the principal thing, and stops there." The doctrine of Silsbury v. McCoon, was applied in Joslin v. Cowee, 60 Barb. 48, where wool had been partially manufactured into clothing.

In Rockwell v. Saunders, 19 Barb. 483, it was held by a majority of the court, obiter, that "if the plaintiffs did not take the logs from the land, but purchased them in good faith, and sawed them into lumber, believing they were his own property, the defendants have no right to take the property from them."

Mr. Schouler states the rule as follows (2 Pers. Prop. 37): "Upon the whole, this modern doctrine of accession appears to be thus properly summed up: One, whose personal property has been taken by another without authority, may follow and recover it from any willful trespasser who has worked it into the composition of any chattel which presents the appropriated materials as still capable of identification; and even, according to the New York cases, where the materials taken cannot be identified in the new product. Even where the trespass was not willful, but accidental, as through some mistake of fact, and the materials taken can still be identified, and the labor and materials of the trespasser are not shown to have gone farther than the appropriated materials toward producing the present valuable chattel, the owner of the materials is still entitled to the chattel. But where no element of willfulness or intentional wrong whatever appears on the part of him who applied another's materials, and the identity of those materials has formally disappeared in the new product, or where it can be shown that his own labor and materials contributed more to the value of the present chattel than those materials which he took without intending a wrong, he shall still keep the chattel as his own, making, however, due compensation to the owner of the materials for what he took. The true object of the rule is, first of all, to protect owners whose rights of property are invaded; next, to secure an involuntary or casual trespasser, who has expended of his own in good faith, from punishment more severe than mere carelessness or honest error deserves."

Although, as we have seen from the principal case, one cannot demand compensation for his voluntary additions to the value of another's property, without the assent of the owner, in an action for the value of what he has thus bestowed, yet where he stands on the defensive, and is sued for the value of the property, he will be compensated for such additions whenever he has acted in good faith. Thus, in the principal case, if the plaintiff had retained possession of the wood, and forced the defendant to sue for it or for damages for its conversion, he would have received the advantage of what labor he had in good faith bestowed on it in fitting it for market. This is certainly the law in this country, in trespass and trover, and in replevin where the property itself is not recovered. The rule as to a willful trespasser is undoubtedly different.

In Reid v. Fairbanks, 13 C. B. 729, trover for a ship which had been greatly improved after conversion, the measure of damages was held to be the value at the time of conversion. MAULE, J., said. It may be that the wrong-doer, who acquires no property in the thing he converts, acquires no lien for what he expends upon it; and the owner may bring detinue or trover. But it does not follow that if the owner brings trover, he is to recover the full value of the thing in its improved state. The proper measure of damages, as it seems to me, is the amount of the pecuniary loss the plaintiffs have sustained by the conversion of the ship." JERVIS, C. J.: "That is what she was really worth when the defendants converted her; the plaintiffs have lost the value of the vessel before the defendants began to lay out money upon her

The early New York cases cited above were all cases of willful trespass, but in recent New York cases the doctrine as to an unintentional trespasser was differently held.

In Aborn v Masom, 14 Blatchf. 405, A. had delivered wool and yarn to O. to be manufactured into cloth, at a specified price, the materials and the product to be continuously the property of A. O. began the manufacture, adding materials to a large amount by mixture with the original; but becoming bankrupt, the partly manufactured goods came into the Dossession of his assignee, from whom A. demanded them, offering to pay the charges.