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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 conse

upon him. Nothing could more encourage carelessness than 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 a 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 I a new trial ordered.

The other justices concurred.

RAILWAY COMPANY v. HUTCHINS.
SUPREME COURT COMMISSION OF Ohio. 1877.

[Reported 32 Ohio St. 571.] ERROR to the District Court of Cuyahoga County.

The petition in this case avers that the said minors Joseph and Edward Barbour are owners in fee simple of a certain tract of land in Lake County, and then proceeds as follows: —

Said land, when owned by said minors, was thickly wooded with excellent timber, and was very valuable on that account; that all, or nearly all, of said timber, while said land was owned by said minors, was cut down and removed by persons now to this plaintiff unknown, without any authority whatever, and the same taken, used, and possessed for its own benefit, without any authority whatever, by the Cleveland, Painesville, and Ashtabula Railroad Company, which was, on or about the 1st day of April, 1869, consolidated with certain other railroad companies under the name and style of the Lake Shore and Michigan Southern Railway Company, which last named company is made the defendant in this action.

By reason of said timber being taken from said land and converted to its own use by the Cleveland, Painesville, and Ashtabula Railroad Company, said minor children were damaged in the amount of four thousand six hundred and fifty dollars ($4,650), for which sum, by reason of the premises, plaintiff asks judgment against the defendant, the Lake Shore and Michigan Southern Railway Company.

It is denied in the answer, that plaintiffs were owners in fee simple of the land in question.

A large quantity of wood and railroad ties was cut, upon this land, by persons who were trespassers, acting without legal right. There is some attempt in the evidence to show that these trespassers had some lawful claim, by virtue of a tax title, to part of the premises. But for the purposes of the case, this claim is ignored, and it is assumed that the timber was actually stolen. Having been thus unlawfully appropriated, it was sold by the parties who took it to the railroad company, but it is admitted that the company purchased and paid for the wood, trees, and ties, in good faith, without notice of plaintiffs' rights, or that any wrong had been or was done his woods.

The fair value of the timber standing upon plaintiffs' land, and before cut into cord wood, and hauled to the defendant's railroad, was about $1 per cord — after being so cut and hauled it was worth about $3 per cord. There was the same difference as to the relative value of standing timber and that cut into ties and hauled.

The railroad company claimed, as the rule of damages, that it was liable only for the value of the timber as it stood upon the ground, say $1 per cord. Plaintiff's claim that the company was liable for the wood, as it was increased in value by the labor of the trespasser, cutting and hauling it, say $3 per cord. Defendant, the railroad company, asked the court to charge:

“ 2. That if the jury find the fact to be that the defendant cut no timber upon the land of plaintiff's said wards, and employed no person to do so, but purchased all the wood and timber of all sorts that it is charged with the conversion of from persons who did cut and remove it from the land and sold it to the defendant; that the defendant would not be liable to the plaintiff for the value of the timber, wood, and ties purchased, at the time of the purchase, but only for the value of the timber before it was cut into wood and ties and sold to defendant. That the measure of damages if the defendant purchased said property in good faith was the fair value of the timber standing on the plaintiffs’ woodland, and, before it was cut into wood or ties and hauled onto defendant's railway and sold to it.”

This charge was refused, and the court did charge as follows:

" Judge Foot in a former trial of this case settled the rule of damages to be the value of the timber, in the condition it was in at the time it was received and converted by the defendant. This I also say to you should be the rule you should adopt in ascertaining the amount of your verdict.

“I have found it much easier to repose confidence in the court, and adopt its consideration in this question of damages than reconcile my. self to its correctness. But you will take it as the law of the case.”

The refusal to charge as requested, and the charge as given was excepted to.

On the first trial to the court, November term, 1871, plaintiff recovered a judgment of $2,500. On the second trial to a jury, February term, 1872, the verdict was $3,843.72. This judgment was reversed in the District Court. At the third trial, November term, 1873, the verdict for plaintiff was $5,680, which was reduced by the court to $3,412.72, and judgment was rendered for that amount.

The principal errors assigned are, in the charge as to the matter of title, and the rule of damages.

The District Court having affirmed the judgment of the Cominon Pleas, a petition in error was filed in the Supreme Court.

J. Mason, Estep & Burke, and W. J. Boardman, for plaintiff's in error.

J. E. Ingersoll, for defendant in error.

WRIGHT, J. We have not deemed it necessary to solve all the nice and difficult questions that relate to the plaintiffs' (Barbours') title to this land. Whether or not they had the legal, they did also claim an equitable title, and there was some evidence to sustain the claim. This question of fact was left to the jury, who found upon it for plaintiffs below. We are not clear that this finding was so palpably against the weight of evidence as to justify interference by us. We therefore

i the point ng cut down upod and tie

assume that plaintiffs bad title sufficient to maintain the action in that respect, and proceed to the second point, the rule of damages.

The petition, it will be noticed, is not as for a trespass to real estate, but to recover the value of the wood and timber stolen ; the action throughout was treated as one to recover that value, and the case is so treated here.

Upon the point now to be determined, the case is thus : A large amount of wood was cut down upon plaintiffs' land, and stolen. The thieves worked it up into cord wood and ties, thus increasing its value threefold. The depredators then sell it to the railroad company, who is entirely innocent in the whole matter. The real owner now sues the railroad company for the property taken from his land. Shall he recover one dollar or three?

It is said upon the one hand to be an universal rule of law that a man's property cannot be taken from him without his consent, unless by law, and that stealing can convey no title to the thief. In Silsbury

in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntary act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking.” It is then argued that the thief, having none himself, could convey no title to any other person taking it however innocently. Hence when the railroad company obtained the property they obtained what was the plaintiffs', and thes could have replevied it, increased in value as it was, by the labor of the thief. If this were so, then it is argued that the company were liable for the value of the wood in its improved condition, enhanced to the extent of threefold.

it might be conceded that the full amount could be recovered. This we understand to be upon the principle in odium spoliatoris. The thief will not be allowed to have anything by virtue of his own wrong, and if he has spent his labor upon stolen goods, he shall not profit by it. It is his own loss.

"The English law will not allow one man to gain a title to the property of another, upon the principle of accession, if he took the other's property willfully as a trespasser.” 2 Kent, 363.

But it seems to be well understood that the rights of the parties are made to depend, to a great extent, upon the intent with which the conversion of property has been brought about. If it was taken mula fide, by theft, or with a wilful purpose to do wrong, the consequences are different from those which follow upon the act done under an honest mistake, and perhaps it is as wise to punish the robber as to protect the innocent.

In treating of confusion of goods, Blackstone speaks of the difference between cases where admixture is by consent of both parties, and where it is by the wilful act of one, and in regard to the latter the author says: “ Our law, to guard against fraud, gives the entire property, without any account to him whose original dominion is invaded." In case of the confusion by consent, it is otherwise, and each party retains his interest.

Mr. Cooley, in his note to page 404, book 2, recognizes the same distinction between a fraudulent purpose, and an innocent mistake. The same distinction is made in 2 Kent, 363 ; Sedg. Dam. 484.

Field on Damages, section 818, says: “ There should certainly be a distinction between a case of mere technical conversion, when, perhaps, the defendant acts in good faith, and that of a wilful conversion and wrong done by the defendant.”

The cases as to what is the proper rule of damages, where property has been taken and by the taker improved in condition or enhanced in value, are numerous, but a reference to some will show some of the difficulties attending the subject.

In Silsbury v. Mc Coon, the corn of one Wood had been manufactured into whiskey by plaintiff. The defendants, as judgment creditors of Wood, took it, and plaintiff sued for the value of the whiskey. The case is first reported 6 Hill, 425. Here it is decided that the change from corn to whiskey was a change of identity, and transferred the property to plaintiffs, who were the manufacturers producing the change. This decision goes wholly upon the question of identity.

There is a learned note to this case, which discusses the question of innocent and wrongful conversion, and the citations there given from Puffendorf, Justinian, and Wood's Institutes are apposite.

This case is again reported in 4 Denio, 332. Here the idea that the rights of the parties depend upon motive or intention is flatly repudiated, the court holding that as long as the owner can trace his property, he may regain it; thus again making identity the criterion.

The case is reversed in 3 Comstock, 381, upon the ground that the animus with which the corn was converted was an important element, and that if plaintiffs, when they took it, knew that they had no right to it, they could obtain no title, although by the manufacture into wbiskey they had changed the identity.

The simple fact, therefore, that the property can be traced into its. improved state is not always sufficient to insure a recovery of the improved article or its value.

It must be remarked, however, that the text books do assert that the proposition of identity is the controlling one. Kent says: “ It was a principle settled as early as the time of the Year Books, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, and be entitled to it in its state of improvement, if he could prove the identity of the original materials ; as if leather be made into shoes, or cloth into a coat, or a tree be squared into timber.” 2 Kent, 363; Betts v. Lee, 5 Johns. 348; 2 Bl. Com. 404. It will, however, appear that other considerations enter into the solution of the question.

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