Day, J.
— Respecting his ownership of the hay in question, the plaintiff testified as follows: “ This hay was on unenclosed prairie. The land upon which I cut this grass and stacked the hay was not mine. I .had gone on to the land, cut the grass and stacked it. My claim to be tbe owner of tbe bay is based on tbis: I cut it and put it up — tbat is all tbe claim I have. I bad no license to cut or stack bay there.” The defendant asked tbe court to instruct tbe jury as follows: “If tbe jury finds from tbe testimony tbat tbe plaintiff bad cut and stacked tbe bay, for tbe burning of which be seeks to recover'in tbis action, upon land wbicb be did not own, and if you further find tbat tbe plaintiff bad no license or permission to cut tbe grass upon said land, and stack tbe bay therefrom thereon, tbe title to said bay so cut and stacked was not in tbe plaintiff, and be cannot maintain an action to recover for tbe destruction thereof by fire wbicb burned over tbe prairie upon wbicb tbe same was stacked.” The' court refused tbis instruction and instructed tbe jury as follows: “ In tbe absence of some title or right ■ of defendant in tbe land upon wbicb the grass was stacked, and from wbicb it was grown and cut, tbe ownership of tho bay in plaintiff, as against defendant, is not disproved by showing that tlic said land from which tbe grass was grown and cut, and upon which it was stacked, was not tbe property of plaintiff, nor can tbe ownership of plaintiff be disproved as against defendant by showing tbat tbe plaintiff bad no license or permit from tbe owner of the land to cut the grass, or stack tbe same upon tbe land where it was burned.” Tbe action of the court in giving tbis instruction, and in refusing tbe one asked, is assigned as error.
I. "Where a party trespasses upon land of another, but in good faith and under a supposed proper authority, and takes therefrom property upon wbicb, by bis own labor, he bestows a value very greatly disproportioned to tbe value of tbe raw material, it lias been held tbat be acquires title by accession to the manufactured, article, and tbat tbe original owner can [475] recovey only the value of the material taken. In Witherbee v. Green, 22 Michigan, 311, when timber of the value of twenty-five dollars had been, in the exercise of what was supposed to be a proper authority, converted into hoops of the value of seven hundred dollars, it was held that the title to the property in its converted form passed to the party by whose labor, in good faith, the change had been wrought. In Royal Mining Co. v. Hintin, 37 Mich., 332, where cord-wood was cut upon the land of another, hauled to a landing and piled, and was then seized and sold by the owner, it was held that the parties cutting the -wood were not entitled to compensation, though they acted in good faith. The case was distinguished from Witherbee v. Green, in that the identity of the converted property was not destroyed, nor its value greatly increased.
A willful trespasser, however, acquires no property in the goods' of another by any change wrought in them by his labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. See Salisbury v. McKoon, 3 Comstock, 379. In this case it was held, where a quantity of corn was taken from the owner by a willful trespasser and converted by him into whisky, that the property was not changed, and that the whisky belonged to the owner of the original materials. In Chandler v. Edson, 9 Johnson, 362, it was held that where a party entered upon the land of another and cut down trees, of which he made shingles, he acquired no property in the timber or shingles. In Brock v. Smith, 14 Arkansas, 431, it was held that when one entered upon land as a trespasser, felled timber and split it up into cord-wood, the bestowal of his labor in splitting the timber into cord-wood neither wrought a change in its specific character nor gave him any title by accession. To the same effect are also the following cases: Betts v. Lee, 5 John., 348; Nesbit v. St. Raul Lumber Company, 21 Minn., 491; Brown v. Sax, 7 Cowen, 95; Freeman v. Underwood, 66 Maine, 229. In [476] tliis last case the defendant purchased a quantity of blueberries from persons who picked them from plaintiff’s land as trespassers, and it was held that, although he acted in good faith, he became liable in trover to the true owner.
We feel satisfied from the foregoing authorities, as well as upon principle, that by entering without license upon the land of another and cutting grass therefrom and making hay, the plaintiff acquired no property therein.' Under our statute, if he had removed the hay from the land, he would have committed a crime. Code, § 3983. '
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Day, J.
— Respecting his ownership of the hay in question, the plaintiff testified as follows: “ This hay was on unenclosed prairie. The land upon which I cut this grass and stacked the hay was not mine. I .had gone on to the land, cut the grass and stacked it. My claim to be tbe owner of tbe bay is based on tbis: I cut it and put it up — tbat is all tbe claim I have. I bad no license to cut or stack bay there.” The defendant asked tbe court to instruct tbe jury as follows: “If tbe jury finds from tbe testimony tbat tbe plaintiff bad cut and stacked tbe bay, for tbe burning of which be seeks to recover'in tbis action, upon land wbicb be did not own, and if you further find tbat tbe plaintiff bad no license or permission to cut tbe grass upon said land, and stack tbe bay therefrom thereon, tbe title to said bay so cut and stacked was not in tbe plaintiff, and be cannot maintain an action to recover for tbe destruction thereof by fire wbicb burned over tbe prairie upon wbicb tbe same was stacked.” The' court refused tbis instruction and instructed tbe jury as follows: “ In tbe absence of some title or right ■ of defendant in tbe land upon wbicb the grass was stacked, and from wbicb it was grown and cut, tbe ownership of tho bay in plaintiff, as against defendant, is not disproved by showing that tlic said land from which tbe grass was grown and cut, and upon which it was stacked, was not tbe property of plaintiff, nor can tbe ownership of plaintiff be disproved as against defendant by showing tbat tbe plaintiff bad no license or permit from tbe owner of the land to cut the grass, or stack tbe same upon tbe land where it was burned.” Tbe action of the court in giving tbis instruction, and in refusing tbe one asked, is assigned as error.
I. "Where a party trespasses upon land of another, but in good faith and under a supposed proper authority, and takes therefrom property upon wbicb, by bis own labor, he bestows a value very greatly disproportioned to tbe value of tbe raw material, it lias been held tbat be acquires title by accession to the manufactured, article, and tbat tbe original owner can [475] recovey only the value of the material taken. In Witherbee v. Green, 22 Michigan, 311, when timber of the value of twenty-five dollars had been, in the exercise of what was supposed to be a proper authority, converted into hoops of the value of seven hundred dollars, it was held that the title to the property in its converted form passed to the party by whose labor, in good faith, the change had been wrought. In Royal Mining Co. v. Hintin, 37 Mich., 332, where cord-wood was cut upon the land of another, hauled to a landing and piled, and was then seized and sold by the owner, it was held that the parties cutting the -wood were not entitled to compensation, though they acted in good faith. The case was distinguished from Witherbee v. Green, in that the identity of the converted property was not destroyed, nor its value greatly increased.
A willful trespasser, however, acquires no property in the goods' of another by any change wrought in them by his labor or skill, however great the change may be, provided it can be proved that the improved article was made from the original material. See Salisbury v. McKoon, 3 Comstock, 379. In this case it was held, where a quantity of corn was taken from the owner by a willful trespasser and converted by him into whisky, that the property was not changed, and that the whisky belonged to the owner of the original materials. In Chandler v. Edson, 9 Johnson, 362, it was held that where a party entered upon the land of another and cut down trees, of which he made shingles, he acquired no property in the timber or shingles. In Brock v. Smith, 14 Arkansas, 431, it was held that when one entered upon land as a trespasser, felled timber and split it up into cord-wood, the bestowal of his labor in splitting the timber into cord-wood neither wrought a change in its specific character nor gave him any title by accession. To the same effect are also the following cases: Betts v. Lee, 5 John., 348; Nesbit v. St. Raul Lumber Company, 21 Minn., 491; Brown v. Sax, 7 Cowen, 95; Freeman v. Underwood, 66 Maine, 229. In [476] tliis last case the defendant purchased a quantity of blueberries from persons who picked them from plaintiff’s land as trespassers, and it was held that, although he acted in good faith, he became liable in trover to the true owner.
We feel satisfied from the foregoing authorities, as well as upon principle, that by entering without license upon the land of another and cutting grass therefrom and making hay, the plaintiff acquired no property therein.' Under our statute, if he had removed the hay from the land, he would have committed a crime. Code, § 3983. '
II. As the plaintiff did not own the land upon which the hay was stacked, he had no constructive possession of it. Having neither title nor possession, it seems to be a necessary consequence that he cannot recover. Upon this branch of the case the authority is abundant. ■ The case of Tuly v. Tucker, 6 Mo., 583, is.directly in point. The facts were as follows: The plaintiff was owner of a sawmill and had men employed to cut down trees in a pinery. Plaintiff’s employes cut down some one thousand and four hundred trees, cut off the tops and marked them in' convenient lengths for stocks, and left them there. The land on which plaintiff’s employes cut the trees was government land. Defendant Tucker hauled away some, of the trees cut by plaintiff’s employes, and plaintiff brought an action in trover against the defendant for the logs taken. In holding that the plaintiff liad^no right of action, the court say: “To maintain this action plaintiff must have a property, either absolute or special, and the possession, or the right to immediate possession,- of the goods - which are the subject of controversy. There is no pretense that plaintiff had the absolute — had he such a special property as will enable him to maintain an action of trover? The cases of special property, referi’ed to by the authorities in illustration of the maxim that mere possession is sufficient prima-facie evidence of property to xxxaintain an action agaixxst a wx’oxxg doer, are those of a bailee, a caniex*, a lessee for life, a lord who seizes an esti'ay, a sheriff [477] who lias levied on goods, and the finder of a jewel. In all these cases, and every other instance of special property, the possession has been peaceable and lawful possession, or a possession acquired by some show of title from the absolute owner. Did plaintiff, by cutting the timber on government land, acquire such possession? There is no case of a mere trespasser acquiring by his trespass constructive possession. It seems to be contrary to settled usage of law for courts to interfere in such cases, and aid one trespasser against another. For the peace of society the law will interfere so far as to protect actual possession, but will not raise a presumptive possession as the foundation of a special property. In this case the very evidence which establishes the possession proves .that possession to be tortious, and plaintiff !s prima facia evidence is rebutted by showing the absolute property in another.” See, also, Stephenson v. Little, 10 Mich., 434; Wineship v. Neale, 10 Gray, 332; Ridgely v. Bond, 17 Md., 14; Hurd v. Fleming, 34 Vt., 169; Hume v. Tufts, 6 Blackf., 136; Howe v. Fanow, 44 Me., 233; Muggudge v. Evileth, 9 Metc., 233; Putnam v. Wiley, 8 Johns., 432.
If plaintiff could not recover if one had hauled the hay in question away, and appropriated it, a fortiori, he cannot recover for a mere negligent act resulting in its destruction. If plaintiff should recover the value of the hay im question, the defendant could not plead the recovery in bar to an action by the real owner. “ The fact that a recovery by the holder of a merely colorable title is no bar to a recovery by the real owner demonstrates that none but the real owners can recover.” Hungerford v. Bedford, 29 Wis., 345.
The only authorities to which we have been referred which announce a doctrine contrary to that above expressed are, Wincher v. Shrewsbury, 2 Scam., 283, and Brown v. Throckmorton, 11 Illinois, 529. These cases are opposed to the weight of authority, and cannot, in our opinion, be sustained upon principle. The court erred in the instruction given, and in refusing to give the one asked.
Eevebsed.