Bronson, Ch. J.
It is undoubtedly a general rule in every civilized state, that a man can only lose his title to property by the operation of law, or his own voluntary act. But this, like most other general rules, has its exceptions. If one wrongfully take the chattel of another, and merely change [334]*334its form and value by bestowing bis labor and skill upon it, without destroying its identity, the property still remains in the original owner, and he may either retake it, or recover the value in its state of improvement. Thus, where leather is made into boots and shoes, cloth into a garment, trees into square timber, iron into bars, or timber into boards, shingles, or coal, the title remains in the owner of the original materials, and he may either retake the chattel in its improved state, or recover its enhanced value. But if the thing be changed into a different species, so that it cannot be reduced to its former rude materials, it then belongs to the new operator; and he is only to make satisfaction to the former owner for the materials converted. Examples of this kind are, where grapes are made into wine, olives into oil, wheat into bread, milk into cheese, grain into malt, or com into whiskey. In such cases the property is changed, and the original proprietor only has an action to recover his damages. Thus far our lawyers have followed the rule of the civil law. It will be sufficient to refer to the report of this case when it was before us on a former occasion, and the learned note of the reporter, for the authorities on this subject. (Silsbury v. McCoon, 6 Hill, 425.) We there held, that when corn is wrongfully taken, and manufactured in to whiskey, by which the nature and species of the commodity is entirely changed, and its identity destroyed, the property is also changed, and the new product belongs to the manufacturer. The case has come back again upon an offer to show, that the corn was taken with the knowledge that it belonged to another; and we are referred to the further teaching of the civilians, who hold that where the property was taken by a wilful trespass, the title is not changed, however great may be the change which has been wrought in the original materials. But I do not find that this doctrine has ever been adopted into our law by any adjudication either here or in England. It was mentioned in Betts v. Lee, (5 John. 348,) and again in Curtis v. Groat, (6 id. 168:) but although the judge who wrote the “ per curiam” opinions in those cases, evidently had a strong leaning to the doctrine of the civilians, the decisions turned upon other [335]*335grounds. The changes had been from timber into shingles and coal: but the property had never been out of the possession of the original owner; and it was held in both cases that the identity of the original materials was sufficiently established. And where the change was from timber to coal, the only point necessarily decided was the one on which the case was put at the outset, that the matter in litigation was res adjudicata. The reasons for those judgments were, I presume, assigned by the learned commentator upon American law, who in his treatise still retained his former opinion. (2 Kent, 363.) But Blackstone, (2 Com. 404, 5,) lays down the rule, without any qualification, that when the thing is changed into a different species, as by making wine, oil, or bread, out of another’s grapes, olives or wheat, it belongs to the new operator; who is only to make satisfaction to the former proprietor for the materials converted. The decisions on the general subject commenced as early as the Year book, 5 H. 7, fo. 15;
The question is not, as it has been sometimes artfully put, whether the common law will allow the owner to be unjustly deprived of his property, or will give encouragement to a wilful trespasser. It will do neither. But in protecting the owner, and punishing the wrongdoer, our law gives such rules as are capable of practical application, and are best calculated to render exact justice to both parties. The proper inquiry is, in what manner, and to what extent should the trespasser be punished; and what should be the kind and measure of redress to the injured party. A trespasser who takes iron ore and converts it into watch springs, by which its value is increased a thousand fold, should not be hanged; nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch springs; for it would be more than a just measure of redress. Our law has therefore wisely provided other remedies and punishments. The owner may retake his ore, either with or without process, so long as its identity remains; and may also recover dam[337]*337ages for the tortious taking. Or without re-possessing himself of the property, he may have an action of trespass, in which the jury will not fail to give the proper damages. But the law will not allow the owner to wait until the ore has been converted into a different species of property, and then to seize the new product, either with or without process. Nor is the value of the new product the proper measure of damages, if he bring an action of trespass or trover.
Although there will not be many cases where the difference between the value of the rude material and the new product will be so striking as in the case which has been mentioned; yet in almost every instance where the chattel taken has been converted into a different species of property, the value of the new product will be more than the trespasser ought to pay, or the owner of the chattel ought to receive.
The common, law not only has regard to the proper measure of redress and punishment, but its rules are such as can be successfully applied and administered. Before the thing has been transformed into a different species, its identity can be easily established ; the owner can know what to retake, and his title can be proved in a court of justice. But after iron ore has been changed into watch springs or needles, grapes into wine, or com into whiskey, it is nearly or quite impossible to trace the connection between the new products and the original rude materials.
In conceding for all the purposes of this case, that the owner may follow the property until it is changed into a different species, I must not be understood as expressing the opinion that such is the proper rule. As an original question, I think the owner should either reclaim the property before the new possessor has greatly increased its value, either by bestowing his labor and skill upon it, or by joining it to other materials of his own; or else that he should be restricted to a remedy by action for the damages which he has sustained. But the question may not be open to consideration upon principle; and for the present, I only mean to say, that we have followed the civil law far enough, without taking another step, and holding that [338]*338in the case of a wilful trespass the owner can never lose his title to the property. And it comes to that; for if he may trace his title from corn to whiskey, he may follow it so long as matter endures.
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Bronson, Ch. J.
It is undoubtedly a general rule in every civilized state, that a man can only lose his title to property by the operation of law, or his own voluntary act. But this, like most other general rules, has its exceptions. If one wrongfully take the chattel of another, and merely change [334]*334its form and value by bestowing bis labor and skill upon it, without destroying its identity, the property still remains in the original owner, and he may either retake it, or recover the value in its state of improvement. Thus, where leather is made into boots and shoes, cloth into a garment, trees into square timber, iron into bars, or timber into boards, shingles, or coal, the title remains in the owner of the original materials, and he may either retake the chattel in its improved state, or recover its enhanced value. But if the thing be changed into a different species, so that it cannot be reduced to its former rude materials, it then belongs to the new operator; and he is only to make satisfaction to the former owner for the materials converted. Examples of this kind are, where grapes are made into wine, olives into oil, wheat into bread, milk into cheese, grain into malt, or com into whiskey. In such cases the property is changed, and the original proprietor only has an action to recover his damages. Thus far our lawyers have followed the rule of the civil law. It will be sufficient to refer to the report of this case when it was before us on a former occasion, and the learned note of the reporter, for the authorities on this subject. (Silsbury v. McCoon, 6 Hill, 425.) We there held, that when corn is wrongfully taken, and manufactured in to whiskey, by which the nature and species of the commodity is entirely changed, and its identity destroyed, the property is also changed, and the new product belongs to the manufacturer. The case has come back again upon an offer to show, that the corn was taken with the knowledge that it belonged to another; and we are referred to the further teaching of the civilians, who hold that where the property was taken by a wilful trespass, the title is not changed, however great may be the change which has been wrought in the original materials. But I do not find that this doctrine has ever been adopted into our law by any adjudication either here or in England. It was mentioned in Betts v. Lee, (5 John. 348,) and again in Curtis v. Groat, (6 id. 168:) but although the judge who wrote the “ per curiam” opinions in those cases, evidently had a strong leaning to the doctrine of the civilians, the decisions turned upon other [335]*335grounds. The changes had been from timber into shingles and coal: but the property had never been out of the possession of the original owner; and it was held in both cases that the identity of the original materials was sufficiently established. And where the change was from timber to coal, the only point necessarily decided was the one on which the case was put at the outset, that the matter in litigation was res adjudicata. The reasons for those judgments were, I presume, assigned by the learned commentator upon American law, who in his treatise still retained his former opinion. (2 Kent, 363.) But Blackstone, (2 Com. 404, 5,) lays down the rule, without any qualification, that when the thing is changed into a different species, as by making wine, oil, or bread, out of another’s grapes, olives or wheat, it belongs to the new operator; who is only to make satisfaction to the former proprietor for the materials converted. The decisions on the general subject commenced as early as the Year book, 5 H. 7, fo. 15;
The question is not, as it has been sometimes artfully put, whether the common law will allow the owner to be unjustly deprived of his property, or will give encouragement to a wilful trespasser. It will do neither. But in protecting the owner, and punishing the wrongdoer, our law gives such rules as are capable of practical application, and are best calculated to render exact justice to both parties. The proper inquiry is, in what manner, and to what extent should the trespasser be punished; and what should be the kind and measure of redress to the injured party. A trespasser who takes iron ore and converts it into watch springs, by which its value is increased a thousand fold, should not be hanged; nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch springs; for it would be more than a just measure of redress. Our law has therefore wisely provided other remedies and punishments. The owner may retake his ore, either with or without process, so long as its identity remains; and may also recover dam[337]*337ages for the tortious taking. Or without re-possessing himself of the property, he may have an action of trespass, in which the jury will not fail to give the proper damages. But the law will not allow the owner to wait until the ore has been converted into a different species of property, and then to seize the new product, either with or without process. Nor is the value of the new product the proper measure of damages, if he bring an action of trespass or trover.
Although there will not be many cases where the difference between the value of the rude material and the new product will be so striking as in the case which has been mentioned; yet in almost every instance where the chattel taken has been converted into a different species of property, the value of the new product will be more than the trespasser ought to pay, or the owner of the chattel ought to receive.
The common, law not only has regard to the proper measure of redress and punishment, but its rules are such as can be successfully applied and administered. Before the thing has been transformed into a different species, its identity can be easily established ; the owner can know what to retake, and his title can be proved in a court of justice. But after iron ore has been changed into watch springs or needles, grapes into wine, or com into whiskey, it is nearly or quite impossible to trace the connection between the new products and the original rude materials.
In conceding for all the purposes of this case, that the owner may follow the property until it is changed into a different species, I must not be understood as expressing the opinion that such is the proper rule. As an original question, I think the owner should either reclaim the property before the new possessor has greatly increased its value, either by bestowing his labor and skill upon it, or by joining it to other materials of his own; or else that he should be restricted to a remedy by action for the damages which he has sustained. But the question may not be open to consideration upon principle; and for the present, I only mean to say, that we have followed the civil law far enough, without taking another step, and holding that [338]*338in the case of a wilful trespass the owner can never lose his title to the property. And it comes to that; for if he may trace his title from corn to whiskey, he may follow it so long as matter endures.
Beardsley, J. concurred.
This ancient case seems to place the right of the former owner, to take the thing in its altered condition, upon the question whether its identity could be made out by the senses. The following is a translation of the case: “ A writ of trespass was brought for the taking of certain slippers and boots. And the defendant says that he was possessed of certain dickers of leather, and bailed them to one J. S., which said J. S. gave them to the plaintiff, and then the plaintiff made from them the slippers and boots, and the defendant came and took them, as he lawfully might do: and prayed judgment, si actio. Then the plaintiff moved the court that this plea was not good; and that the defendant could not take them again, because by the making of the boots and shoes, the property was so changed as to be of another nature : as if one took barley or grain and made malt of it, he from whom the grain was taken could not take the malt, because the thing taken is changed into one of another nature. And so, if trees are taken and a house built from them, he from whom the trees are taken cannot teardown the house to take them again, because other things are joined with them. But if a thing is taken wrongfully, and nothing is joined or mingled with it, nor is it altered to a thing of another nature, the party may take it again. Thus, if one take a tree and square it with an axe, there the party may take it again, because it is not changed to another article, nor is any thing mingled or [336]*336joined with it. But if a man take silver and make of it a piece of money, or take a piece of silver and gild it with gold—in either case the party cannot retake it. So in this case the leather is mixed with thread: and therefore the party cannot retase it. Wherefore it seems that the plea is not good.
But the court hold the contrary clearly. And as to the case of grain taken and malt made of it, the party cannot retake it, because the grain 'cannot be known. And so of pennies or groats, when another piece is made of them, this cannot be taken—because one penny cannot be distinguished from another. So also is it if one take a piece and from it make pennies at the mini, the party cannot take the pennies, because they cannot be known one from the other. And so of'all similar cases. The same is the case in building a house. There the timber is changed, becoming part of the freehold: and for this cause it cannot bo taken. But in every case where the thing itself may be known, there the party may take it, notwithstanding that some other thing he joined or mingled with it. So if one take a piece of cloth and make himself a coat, the owner may rightfully retake it, for the reason that it is the same thing, and not different. So aiso in the case put, if one take a tree and square it with an axe, the party may .awfully retake it, because the tree may be known notwithstanding. The same of '.ion of which the smith makes a tool. And so it was held by the whole c >urt (Your book, 5 H. 7, fo. 15, pl. 6.)