Brown v. Sax & Kimble
7 Cow. 94
N.Y. Sup. Ct.
1827
Check Treatment

Lead Opinion

Ouria.

Here was, beyond all doubt, a tortious taking of the trees. The consent of the owner is not pretended. The taking of the logs by the defendants was also tortious. The only question is, whether the former was entitled to the boards which the defendants made of them. We think the property was not changed by this act. The rule, in ease of a wrongful taking, is that the taker cannot, by any *97act owni accl™e title, unless he either destroy thi of the thing: as by changing money into a cup, ox grain into malt; or annexing it to, and making it a part oi some other thing, which is the principal; or changing its nature from personal to real property; as where it is worked into a dwelling house. Thus, cloth made into a garment, leather into shoes, trees squared into timber, and iron made into bars, may be reclaimed by the original owner, in their new and improved state. Bro. Property, pl. 23; F. Moor. Rep. 20, pl. 67. These authorities are translated by Yiner, in his Aridgment, (Property (E) pl. 5;) and the doctrine traced up to the Year Books. The same distinctions are laid down by several cases in this court. Betts v. Lee, 5 John. 338; Curtis v. Groat, 6 id. 168; Babcock v. Gill, 10 id. 287. A part of the original case in Moore, cited by Yiner, puts the very point before the court, and gives an opinion upon it thus: “ M si home prist certain arbres, and puis il fait boards de eux ; uncore le owner poit *eux reprendei; quia major pars substantice remanei”[1]

The civil law required the thing 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 being the property of another. Vinnius. Inst. lib. 2, tit. 1, § 25.



Dissenting Opinion

Sutherland, J.,

(dissenting) The value of the logs was proved to be 187 dollars 56 cents; of the boards made from them, 309 dollars 46 cents; making a difference of 121 dollars 90 cents.

Suppose the plaintiff’slogs had not only been sawed into boards; but from boards had been wrought by the defendants into bureaus, tables, book cases, or other articles, in which the labor constituted, by far, the greatest value. The transformation of boards into these articles, would not be a greater change than to convert logs into boards. Suppose a mass of iron ore, tortiously taken by a manufacturer in its rough state, and, by his skill, refined, and converted into the valuable and costly articles into which that metal *98is capable of being wrought: would the owner of the raw material, in an action of trover, he entitled to recover the value of the manufactured articles by way of damages ? If my neighbor takes my wool or flax, can I wait until they are converted into broadcloth or linen; and then, in an action of trover, recover the value of those commodities ?

Where the original taking was wilful and tortious, as in the case now before us, this rule of damages would not, perhaps, appear to be oppressive or unjust. But it must be recollected, that the action may be brought against any person, who has in his possession, by any means whatever, the personal property of another, and sells or uses it without the consent of the owner, or refuses to deliver it when demanded. 1 Chit. Pl. 147; Bull. N. P. 32. The conversion is the gist of the action; and the manner in which the goods came to the hands of the defendants, is only inducement ; and cannot be traversed. If a gentleman delivers a piece of broad-cloth to a tailor, to be made into a suit of clothes; and the tailor, instead of re-delivering them, when made, sells them to a third person, no doubt trover would lie against the vendee. But would the plaintiff be entitled to recover the value of the clothes, or of the cloth, only ? Suppose the tailor bad made them to fit himself, and had used them accordingly.

*It has been held, that if jewels, sealed up in a bag, be lodged with a banker for safe custody; and he break open the bag, and sell or pawn them, the owner may bring trover against the vendee or pawnee. Bull N. P. 32. But suppose the vendee, before they were demanded from him, had had them new set, so as to add fifty per cent, to their value, at the time when he purchased them; would that be the measure of damages which the owner would be entitled to recover ?

The opinion expressed by the judge upon this point, I think, was erroneous.

Hew trial denied.