Betts v. Lee — 5 Johns. 348

Majority

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Betts and Church against Lee.

Headnote

A. the owner' of land, broughtan action of pespass against B. for enuring and t"ec™Sisc. ‘tTi” promiseiiT “mi L paid the dapromised, and mag' s to a" the"18 value of the^ trees, sawcd and" split Senrarls^todi giesf ands1‘b" brought an aetion ot trespass against him, for iyingSaway the licUi8 6 that 'the the” trespass by ti'c damages' to A. did not ti ans- fer tlio property in the tiers rut down, to B. iiordidB.by con-bur hito shingles of'propeny1”1'1 Whatei-er aifevalion m iorm, property may have undergone, the original owner may take it, in its new shape, if he can identify the original materials.

ON certiorari, from a justice’s court. Lee sued the plaintiffs in error, in the court below, for a tresnass, in _ taking and carrying away a quantity of shingles, and stuff for making shingles. Lee had cut down the timber °f which the shingles were made, on land belonging to R0lert £. Boxvne. Robert L. Boxvne. An action of trespass was brought ^7 Boxvne against Lee, for cutting down the trees ; and the attorney of Boxvne discontinued the suit, on the defendant’s paying thirty dollars.^ It was proved that the attorney, who settled the suit in behalf of Boxvne, had said) that in compromising several suits, for this and other trespasses of the same kind, he had charged as r 1 ° much to those who had not carried off the timber cut down, as to those who had carried away what they had cut; and that those who had not taken off the timber cut down, would have as much right to carry it away, as those who had done so, before the settlement of the suits.^

The land on which the timber was cut down, and. the shingles made, was conveyed by Boxvne to the plain-. . 6 ’ , . e * . . , , tiffs m error; and at the time ol executing the deed, a power of attorney from Boxvne to the plaintiffs in error, was a^so executed, authorizing them to sue all persons, in the name of Boxvne, for trespasses, before that time 3 r committed, in cutting timber on the land. It was proved

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that the deed and power of attorney were executed prior to the suit brought by Botone, and settled in the manner above stated. The plaintiffs in error, as owners of the land, claimed the timber cut down, and prepared for making shingles, as well as the shingles not taken away by Lee, prior to the said suit, and prohibited him from taking them ; and converted them to their own us*-. The jury foxmd a verdict for Lee, the plaintiff belew, for twenty-five dollars, on which the justice gave judgment.

The question was, whose property were the shingles, and timber cut down, after the settlement of the suit, brought by Bowne against Lee for cutting down the trees.

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

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being 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..