| N.Y. Sup. Ct. | Feb 15, 1810

Per Curiam.

The evidence detailed in the return to the certiorari, does not prove, that when the suit for a trespass, brought by Bowne against Lee, was compromised, the attorney of Bowne, or the present plaintiffs, sold the shingles, &c. to Lee, or permitted him to take them. The thirty dollars paid by Lee to the attorney, was for the damages of the trespass he had committed, in cutting down the trees. A loose and equivocal observation made at another time to a stranger, was •not sufficient evidence to establish such a sale or consent. The settling of the suit for the trespass, and recovering a compensation, did not, per se, transfer to the trespasser a right to the timber cut down, and remaining on the land ; nor did the working one part into shingles, and the other part into short logs, change the title to the property.

The civil law required the th^ng to be changed into a “ •• different species, and to be incapable of being restored to its ancient form, as grapes made into wine, before the original proprietor could lose his title; nor even then, did the other party acquire any title by the accession, unless the materials had been taken away, in ignorance of their *350being the property of another. (Vinnius, Inst. lib. 2. tit. 1. § 25. Dig. 10. 4. 12. 3.) The civil law, in its usual wisdom, gave no encouragenient to trespassers. But this very point has been decided against the trespasser,- by the English common law. It is laid down, in the Tear Books, after solemn argument on demurrer, that whatever alteration of form any property has undergone, the owner may seize it, in its new shape, if he can 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. (5 Hen. VII. 15. 12 Hen. VIII. 10. Fitz. Abr. Bar. 144. Bro. tit. Property, 23.) We are of opinion, therefore, that the judgment below ought to be reversed.

Judgment reversed..