728 land in Templeton, with a dwelling-house thereon, to secure the pay Peirce & Gobhard oftwarde with new & with The Davenport mortaaged telling home & lot & B.he trole town house & with the materiale porte - zorth materiales, built a new boneze. Be they aold nur house to sef. Pl mainted old force property of Pi + 2. had ve right & it down thould not acquire any property = materiais & wrondfuck act. That nor touse built party of his motorists resome property of PC & accersion + anid not conse Good Witte't and the materials secame a st: wethe prongsung takes to natur ? # materials was thaused dard) the pectold. The ownerc property in them nos directed ou effectually un as the the had teen destroyed. Dovenpart slove responsite for testions ect. eration, sold the last-mentioned lot and house to the defendant. The plaintiff's counsel insist, that the old house was the property of That Davenport is responsible for taking down and removing the old house, cannot admit of a doubt; but it does not follow, that the property in the new house vested in the plaintiff. The rules of law, by which the right of property may be acquired by accession or adjunction, were principally derived from the civil law, his trade, or by a mortgagor after the estate had been mortgaged, we ཁ it is void. For these reasons, the court are of opinion, that the verdict, which was for the defendant, must be set aside, and a new trial granted. Lathrop, I C. Bates, and Forbes, for the defendant. Wells, Alvord, and W. G. Bates, contra. PEIRCE v. GODDARD. SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1839. [Reported 22 Pick. 559.] TROVER. The writ contained two counts, one, for the conversion of a dwelling-house, and the other, for the conversion of the materials of a dwelling-house. By an agreed statement of facts it appeared that Oliver G. Davenport, on the 16th of January, 1836, mortgaged to the plaintiff a lot of land in Templeton, with a dwelling-house thereon, to secure the payment of a promissory note of that date for the sum of $450, upon which there was still due the sum of about $270; that after such mortgage was made, Davenport, having purchased another lot of land in Templeton, undertook to remove the house to such lot; but that after having removed it from sixty to eighty rods from its former site, he took it all to pieces and carried the materials to the subsequently purchased lot, and there erected a house of the same dimensions as the former house; that in the construction of the new house, he made use of the materials of the old house, so far as they would answer the purpose, together with new materials, which were furnished by himself; that the removal of the old house and the erection of the new one, were known to the defendant; but there was no evidence that he knew of the mortgage, other than what resulted from the record thereof. It further appeared, that when the new house was completed, Davenport, for a valuable consideration, conveyed the lot on which it stood, together with the house, to the defendant, who occupied the same from that time until after the commencement of this action, when he sold the same to a third person. A nonsuit or a default was to be entered, as the court should determine. Washburn and Hartshorn, for the plaintiff. C. Allen, for the defendant. This action is sub WILDE, J., drew up the opinion of the court. mitted on an agreed statement of facts, by which it appears, that one Davenport, being the owner of a lot of land with a dwelling-house t thereon, mortgaged the same to the plaintiff; that afterwards he took down the house, and with the materials partly, and partly with new materials, built a new house on another lot of his at some distance; and that after the new house was completed, he, for a valuable consideration, sold the last-mentioned lot and house to the defendant. There are two counts in the declaration: one, for the conversion of the newly erected house; and the other, for the conversion of the materials with which it was built, belonging to the old house. The plaintiff's counsel insist, that the old house was the property of the plaintiff, and that Davenport had no right to take it down, and could not therefore acquire any property in the materials by such a wrongful act; that the new house, being built with the materials from the old house in part, became the property of the plaintiff, although new materials were added, by right of accession; and that Davenport, having no property in the house, as against the plaintiff, could convey no title to it to the defendant. That Davenport is responsible for taking down and removing the old house, cannot admit of a doubt; but it does not follow, that the property in the new house vested in the plaintiff. The rules of law, by which the right of property may be acquired by accession or adjunction, were principally derived from the civil law, but have been long sanctioned by the courts of England and of this country as established principles of law. The general rule is, that the owner of property, whether the property be movable or immovable, has the right to that which is united to it by accession or adjunction. But by the law of England as well as by the civil law, a trespasser, who wilfully takes the property of another, can acquire no right in it on the principle of accession, but the owner may reclaim it, whatever alteration of form it may have undergone, unless it be changed into a different species and be incapable of being restored to its former state; and even then the trespasser, by the civil law, could acquire no right by the accession, unless the materials had been taken away in ignorance of their being the property of another. 2 Kent's Com. 362; Betts v. Lee, 5 Johns. R. 348. But there are exceptions to the general rule. It is laid down by Molloy as a settled principle of law, that if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing of a dwelling-house, nay, though some of them are for shipping, and builds a ship, the property follows not the owners but the builders. Mol. de Jure Mar. lib. 2, c. 1, § 7. Another similar exception is laid down by Chancellor Kent in his Commentaries, which is directly in point in the present case. says, A. builds a house on his own land with the materials of another, the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged to answer to the owner of the materials for the value of them. 2 Kent's Com. 360, 361. This principle is fully sustained by the authorities. In Bro. tit. Property, pl. 23, it is said, that if timber be taken and made) into a house, it cannot be reclaimed by the owner; for the nature of it is changed, and it has become a part of the freehold. In Moore, 20, it was held, that if a man takes trees of another and makes them into boards, still the owner may retake them, but that if a house be made with the timber it is otherwise. In Popham, 38, this principle is further extended. The plaintiff in that case had mixed his own hay with hay of the defendant on his land, and the defendant took away the hay thus intermixed; and it was held, that he had a right so to do. But it was also held, that if the plaintiff had taken the defendant's hay and carried it to his house and there intermixed it with his own hay, the defendant could not take back his hay, but would be put to his action against the plaintiff, for taking his hay. If there be any doubt of the doctrine laid down in this case, it does not affect the present case. The doctrine laid down in the former cases is fully supported by the Year-Books, 5 Hen. 7, 16; and I am not aware of any modern decision or authority, in which this old doctrine of the English law has been controverted. The case of Russell v. Richards, 1 Fairfield, 429, cited by the plaintiff's counsel, was decided on the ground, that the building in controversy was personal property and had never become a part of the freehold. In the present case it cannot be questioned, that the newly erected dwelling-house was a part of the freehold, and was the property of Davenport. The materials used in its construction ceased to be personal property, and the owner's property in them was divested as effectually as though they had been destroyed. It is clear, therefore, that the plaintiff could not maintain an action even against Davenport, for the conversion of the new house. And it is equally clear, that he cannot maintain the present action for the conversion of the materials taken from the old house. The taking down that house and using the materials in the construction of the new building, was the tortious act of Davenport, for which he alone is responsible. Plaintiff nonsuit.1 RICHARDSON v. COPELAND. SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1856. [Reported 6 Gray, 536.] ACTION of tort for the conversion of a steam-engine and boiler, which were manufactured and set up by John Putnam and others, under a contract with Josiah Richardson, upon his land in Leominster, in a building erected for the purpose of receiving them, and were used to run the machinery in the adjoining shop of said Richardson. The boiler was set into the brick-work in such a manner that it could not be removed without taking down the brick-work; and the engine was placed upon a granite block, and fastened by a bolt or pin. After the work was finished and the engine was in operation, said Putnam and others gave a bill of sale of the engine and boiler to Richardson; and at the same time received back a mortgage thereof, which was recorded as a mortgage of personal property; and afterwards, upon breach of the condition thereof, due notice was given of intention to foreclose the same as such a mortgage. Richardson subsequently became insolvent, and said real estate was sold by his assignees by order of the commissioner, on the petition of mortgagees thereof, (some of whose mortgages were made before the erection of the engine and boiler, and some since,) to one Harlow, who had full knowledge of the mortgage to Putnam and others, and of the proceedings thereon, and who afterwards sold the engine and boiler to the defendant, to be taken away, and the defendant removed them. The plaintiff afterwards purchased all the rights of Putnam and others, and gave notice thereof to the defendant, and demanded the property of him. The plaintiff also offered to prove that, by the general usage and custom of trade between manufacturers and vendees of such property, it was regarded and treated in all respects as personal property. But the Court of Common Pleas held the evidence incompetent. The parties submitted the foregoing case to this court, with an agree 1 See Central Branch R. R. Co. v. Fritz, 20 Kans. 430. |