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The judgment of the Supreme Court should be reversed and a new trial ordered.
GARDINER, JEWETT, HURLBUT, and PRATT, JJ., concurred.
BRONSON, Ch. J. Two very able arguments here, against the opinion which I delivered when the case was before the Supreme Court, (4 Denio, 332,) have only served to confirm me in the conclusion at which I then arrived. I shall add but little now to what I said on the former occasion.
The owner may, as a general rule, follow and retake the property of which he has been wrongfully deprived so long as the same thing remains, though it may have been changed in form and value by the labor and skill of the wrong-doer. But when, as in this case, the identity of the thing has been destroyed by a chemical process, so that the senses can no longer take cognizance of it — when it has not only changed its form and appearance, but has so combined with other elements that it has ceased to be the same thing, and become something else, the owner can, I think, follow it no longer: bis remedy is an action for damages. Such I take to be the rule of the common law; and that is our law.
The rule for which the defendants contend, that in the case of a wilful trespass, the owner may follow and retake his property after it has been changed into a thing of a different species — that he may trace corn into whisky, and take the new product — is open to several objections. First: it would be nearly or quite impossible to administer such a rule in trials by jury. Second : the rule would often work injustice, by going beyond the proper measure of either redress or punishment; while an action for damages would render exact justice to both parties. It is very true that a wilful trespasser should be punished : but that proves nothing. All agree that he should be made to suffer ; but the mode and measure of punishment are questions which still remain. If one has knowingly taken six pence worth of his neighbor's goods as a trespasser, he should neither be imprisoned for life, nor should he forfeit a thousand dollars. We should not lose sight of the fact, that the rule now to be established is one for future, as well as present use; and it may work much greater injustice in other cases than it can in this. Third : there is no authority at the common law for following and retaking the new product in a case like this. I make the remark with the more confidence, because the very diligent counsel for the defendants, after having had several years, pending this controversy, for research, has only been able to produce some dicta of a single jurist, without so much as one common law adjudication in support of the rule for which he contends. He is driven to the civil law; and then the argument is, that because we, in common with the civilians, allow the owner to retake his property in certain cases, we must be deemed to have adopted the rule of the civil law on this subject in its whole extent. But that is a non sequitur. It often happens that our laws and those of the Romans -- and, indeed, of all civilized nations - are found to agree in
some particulars, while they are widely different in others; and this is true of laws relating to a single subject. There is no force, therefore, in the argument, that because our law touching this matter is to some extent like the civil law, it may be presumed that the two systems are alike in every particular. And clearly, the burden of showing that the Roman law is our law, lies on those who affirm that fact. There is not only the absence of any common law adjudication in favor of the rule for which the defendants contend, but in one of the earliest cases on the subject to be found in our books, (Year Book, 5 H. 7, fo. 15, 4 Denio, 335, note, the court plainly recognized the distinction which has been mentioned, and admitted that the owner could not retake the property after its identity had been destroyed ; and grain taken and malt made of it” was given as an example.
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 wilful 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 can not 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 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. Thus far our courts have gone, and there they have stopped. We have neither precedent nor reason in favor of taking another step; and I can not take it.
Judge Harris agrees with me in the opinion that the judgment of the Supreme Court is right, and should be affirmed. TAYLOR, J. did not hear the argument, and gave no opinion.
PULCIFER v. PAGE.
SUPREME COURT OF MAINE. 1851.
[Reported 32 Me. 404.] TRESPASS for an iron chain, which each of the parties claimed to own.
The evidence tended to show, that each of the parties had a chain ;that each chain had been broken into several pieces; that the plaintiff, without the consent or knowledge of the defendant, carried all the pieces to a blacksmith, and had them made up into two chains ; - and that the defendant carried away one of them into which some part of his own chain had been incorporated. It was for this chain, that this suit is brought.
The judge instructed the jury that if the plaintiff had only incorporated into this chain some small portion of the defendant's chain without his consent, not exceeding two or three links, it would not thereby become the property of the defendant. To this ruling the defendant excepted.
Woodman, for the defendant.
HOWARD, J. This case presents a question of acquisition of property by accession, but does not involve an inquiry concerning the admixture or confusion of goods. It is a general rule of law, that if the materials of one person are united to the materials of another, by labor, forming a joint product, the owner of the principal materials will acquire the right of property in the whole, by right of accession. This was a rule of the Roman, and of the English law, and has been adopted, as it is understood, in the United States, generally. Dig. 6, 1, 61; Bracton de acq. rerum dom. B. 2, c. 2, $ 3, 4; Molloy, B. 2, c. 1, $ 7; Pothier, Trait du droit de propriété, L. 1, c. 2, art. 3, No. 169–180 ; 2 Black. Com. 404; 1 Bro. Civil Law, 241 ; Glover v. Austin, 6 Pick. 209 ; Sumner v. Hamlet, 12 Pick. 83; Merritt v. Johnson, 7 Johns. 474; 2 Kent's Com. 361.
The distinctions and qualifications, that may be appropriate and necessary in the application of this doctrine to a variety of cases that may arise, do not require consideration, in determining this case. The first instruction stated was favorable to the defendant, and forms no ground of exceptions for him; and the plaintiff does not complain of it. The second instruction, that “ if the plaintiff had only incorporated into this chain some small portion of the defendant's chain, without his consent, not exceeding two or three links, the chain would not by the incor
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