not his own merely, but also property of the wrong-doer. When that is permitted it is of necessity, and because in no other way can practical justice be accomplished. For example, if one purposely or by negligence take a hundred bushels of his neighbor's wheat and commingle it with a hundred bushels of his own barley, so that a separation of the two becomes practically impossible, the law permits the owner of the wheat, in retaking it, to take that which is inseparably commingled with it, since in no other way can he reclaim his own property.' The inextricable confusion of his goods with the goods of another gives him this right, provided the intermixture was wrongful. But at his option he may refuse the whole and sue for the value of what has been taken from him.

Suppose, however, that the grain, instead of being different in kind, had all been wheat of the same kind and quality owned severally by the two. In that case, as in the other, separation would have been impossible; but if each were to take from the mass a quantity equal to what he owned when the commingling took place, he would receive, though not exactly his own, yet that which, for all practical purposes, is the equivalent. It would be equal in value, it could be used for the same purposes, and to the senses no difference would be perceptible. To give him back the equal quantity is therefore to do him justice, unless his having

12 Kent, 364, 365; Loomis v. Green, 7 Me. 386; Wingate v. Smith, 20 Me. 287; Moore v. Bowman, 47 N. H. 494; Weil o. Silverstone, 6 Bush. 698; Alley v. Adams, 44 Ala. 609; Hart v. Ten Eyck, 2 Johns. Ch. 62; Willard v. Rice, 11 Met. 490; Jenkins v. Steanka, 19 Wis. 139; Beach v. Schmultz, 20 Ill. 185. "All the authorities agree, that if a man wilfully and wrongfully mixes his own goods with those of another owner, so as to render them undistinguishable, he will not be entitled to his proportion or any part, of the property, certainly not unless the goods of both owners are of the same quality and value. Such intermixture is a fraud. And so if the wrongdoer confounds his own goods with goods which he expects may belong to an

other and does this with intent to mislead that other and embarrass him in obtaining his right the effect must be the same." The Idaho, 93 U. S. 575. If the intermixture is fraudulent the injured party may have the whole. Jewett v. Dringer, 30 N.J. Eq. 291. If one buys a stock of goods with fraudulent purpose as against the vendor's creditors, and then purposely or through want of proper care mingles other goods with them, he cannot recover against an officer who levies upon all the goods as the property of the fraudulent vendor. Stearns . Herrick, 132 Mass. 114. See Lehman v. Kelly, 68 Ala. 192.

The same principle applies to confusion of accounts. Diversey v. Johnson, 93 Ill. 547.

been deprived of it for the time has caused him a special injury, in which case he would be entitled to recover damages for that injury. Even if the commingling were malicious or fraudulent, a rule of law which would take from the wrong-doer the whole, when to restore to the other his proportion would do him full justice, would be a rule wholly out of harmony with *the general rules of civil remedy, not only because it [*54] would award to one party a redress beyond his loss, but also because it would compel the other party to pay not damages but a penalty. The infliction of penalties by way of civil remedy is not favored in the law;' on the other hand the law inclines against them; construing contracts so as to avoid them, and in many cases giving relief against them in equity, where the parties have expressly stipulated for them.' Therefore, the law in these cases does justice between the parties as nearly as, under the circumstances, is practicable by dividing between them the commingled mass according to their respective proportions. Nor is this method of arranging their interests limited to the cases in

1 Willard, Eq. 56; Sanders v. Pope, 12 Ves. 282; Grigg v. Landis, 21 N. J. Eq. 494.

Crane . Dwyer, 9 Mich. 350; White . Port Huron, etc. R. R. Co., 13 Mich. 256; Wing v. Railey, 14 Mich. 83: Jaquith v. Hudson, 5 Mich. 123; Grigg v. Landis, 21 N. J. Eq. 494; McKim o. The White Hall Co., 2 Md. Ch. Dec. 510; Skinner v. Dayton, 2 Johns. Ch. 526; Skinner v. White, 17 Johns. 357; Livingstone v. Tompkins, 4 Johns. Ch. 510; Cythe v. La Fontain, 51 Barb. 186; Baxter v. Lansing, 7 Paige, 350; Laurea v. Bernauer, 33 Hun, 307; Hager v. Buck, 44 Vt. 285; Walker v. Wheeler, 2 Conn. 299; Bowen v. Bowen, 20 Conn. 126; Warner. Bennett, 31 Conn. 468; Horsburg v. Baker, 1 Peters, 239; Smith . Jewett, 40 N. H. 530; Bradstreet v. Baker, 14 R. I. 546; St Louis, etc. Ry Co. v. Shoemaker, 27 Kan. 677; Scofield v. Tompkins, 95 Ill. 190; Bolster . Post, 57 Ia. 698; Sanders v. Pope, 12 Vesey, 282; Davis v. West,

Id. 475; Northcote . Duke, Amb. 511; Storey's Eq. Jur., Sec. 1319; Willard's Eq. Jur., 56.

3 Lufton . White, 15 Ves. 442; Spence v. Union Marine Ins. Co., L. R. 3 C. P. 427; Ryder v. Hathaway, 21 Pick. 298; Robinson v. Holt, 39 N. H. 557; Moore v. Bowman, 47 N. H. 494; Willard v. Rice, 11 Met. 493; Bryant v. Ware, 30 Me. 295; Hesseltine . Stockwell, 30 Me. 237; Holbrook v. Hyde, 1 Vt. 286; Adams v. Myers, 1 Sawyer, 306; Wilkinson v. Stewart, 85 Pa. St. 255; Chandler v. DeGraff, 25 Minn. 88; Stone v. Quaal, 36 Minn. 46. "The general rule that governs cases of intermixture does not apply where the goods intermingled remain capable of identification, nor where they are of the same quality and value, as where guineas are mingled or grain of the same quality. Nor does the rule apply where the intermixture is accidental, or even intentional if it is not wrongful." The Idaho, 93 U. S. 575.

which the commingled mass is exactly the same with the separate parcels: it is sufficient that it is practically the same, so that the separation of that which is equivalent in quantity or measure will give to the party whose property has been wrongfully taken that which is substantially equivalent in kind and value. This rule has been applied to the case of quantities of saw-logs, belonging to different parties but commingled together; and it is held that to give the party whose logs are lost the option of taking from the mass an equivalent in quantity and quality, or of demanding the value, is all that in justice he can require.'

[*55] *Property by Accession.

In another class of cases the

owner of property may either lose it by the wrongful act of another, or he may be entitled to reclaim it in a modified or perhaps wholly different form. The reason why the owner is permitted to reclaim his own property from a wrong-doer is, that the protection of property and the peace of society are inconsist

Stephenson. Little, 10 Mich. 433; Jenkins v. Steanka, 19 Wis. 126; Ryder v. Hathaway, 21 Pick. 298; Hesseltine v. Stockwell,30 Me. 237; Smith v. Morrill, 56 Me. 566; McDonald v. Lane, 7 Can. S. C. R. 462. If the goods can be distinguished or separated, no change, of course, takes place in the property. Alley v. Adams, 44 Ala. 60; Robinson v. Holt, 39 N. H. 557. There can be no commixture or confusion of goods in the legal sense when logs plainly marked with certain initials are mingled in a boom with other logs not so marked. Goff v. Brainerd, 58 Vt. 468. If they are intermingled by consent, the parties become tenants in common of the mass. Adams v. Meyers, 1 Sawyer, 306; Ryder v. Hathaway, 21 Pick. 299; Low v. Martin, 18 Ill. 286. See, Hance v. Tittabawassee Boom Co. 38 N. W. Rep. 228. (Mich.) The same is true where they are intermixed by accident. Moore v. Erie R. R Co., 7 Lans. 39. When the only practicable method of conducting the business of pork packing is to render

to each bailor of hogs an amount of the product equivalent in kind and quality to the amount delivered, not the animals in specie, the bailee may rightfully act according to such method. Morningstar v. Cunningham, 110 Ind. 328.

If one allows his goods to be intermingled with those of another, knowing that sales are to be made from the mass, he cannot retake his own from a purchaser in good faith; Foster v. Warner, 49 Mich. 641, or hold such purchaser for a conversion; Preston v. Witherspoon, 109 Ind. 457. A loss of wheat in an elevator occurring without fault of the depositors must be born rateably by them; Brown Northcutt, 14 Oreg. 529.

As to an intermixture where the party chargeable with it is innocent of intended wrong, see Bryant v. Ransom, 20 Vt. 383; Hesseltine Stockwell, 30 Me. 257; Thorne v. Colton, 27 Iowa, 425; Wetherbee v. Green, 22 Mich. 311; Hart v. Morton, 44 Ark. 447; Davis v. Krum, 12 Mo. App. 279.

ent with a state of the law in which a wrong-doer may compel another to sell to him, by seizing the property he desires and leaving the owner to bring suit for its value. Therefore, in general, the owner of property, so long as he can trace and identify his own, may reclaim it. But there are some cases in which he is not permitted to reclaim his own, even though the identification be complete.

In illustration of some of these cases the instance may be given of a stone or board belonging to one man taken by another and built into his house in such a manner that it could not be removed without inflicting injury out of proportion to the value of the stone or board. In such a case the law would not suffer the original owner to reclaim it, but would leave him to his remedy in the recovery of damages, and treat the stone or board as having become a part of the realty by accession. A like loss of property to the original owner might follow where one has taken the personal property of another and expended upon it labor or money of his own, thereby converting it into something substantially different, or adding so greatly to its value that, to permit the original owner to reclaim it, would be shocking to one's sense of justice.

If one has willfully, as a trespasser, taken the property of another and altered it in form or substance by an expenditure of his own labor or money, he will not be suffered to acquire a title by his wrongful action as against the original owner reclaiming his property. Therefore, one whose trees have been converted into shingles by a trespasser may reclaim his pro- [*56] perty in the shingles, or if they have been made into the frame of a boat, he may have them in that form. Indeed, the doctrine has been carried so far that in New York it has been held that one whose grain has been taken by a willful trespasser and converted into alcoholic liquors is entitled to demand and recover the new product. But "it is on all hands conceded where

'Church o. Lee, 5 Johns. 348. See, also, Curtis v. Groat, 6 Johns. 108; Worth v. Northam, 4 Ired. 102.

* Burriso. Johnson, 1 J. J. Marsh. 196. Trees into railroad ties; Strubbee . Trustees, 78 Ky. 481. If timber is cut by trespasser, not by one in adverse possession, trover will lie so

long as it can be identified. Street v. Nelson, 80 Ala. 230.

Silsbury . McCoon, 3 N. Y. 379. See Riddle v. Driver, 12 Ala. 590. As to damages recoverable from innocent purchasers from trespasser who has cut timber. Railway Co. v. Hutchins, 32 Ohio St. 571. Strubbee v.

the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the value of the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the value of the article as it was before the conversion. This is thoroughly equitable doctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from any loss. But where the identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush. Perhaps no case has gone further than Wetherbee v. Green,' in which it was held that one who, by unintentional trespass, had taken from the land of another young trees of the value of twenty-five dollars, and converted them into hoops worth seven hundred dollars, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established."

Trustees, etc., 78 Ky., 481 and cases p. *457-8, post.

This qualification has been questioned in Ky. Strubbee v. Trustees, 78 Ky. 481.

222 Mich. 311.

Isle Royal Mining Co. v. Hertin, 37 Mich. 332. In this case parties, by mistake, had felled trees on the land of another and cut them into cord wood. The owner of the trees then seized the wood and sold it. The parties cutting it thereupon brought suit in assumpsit, claiming that they were entitled to recover either the value of the wood, as having been made their own by the labor expended on it or the value of their labor, which the owner of the trees had now appropri

2

ated. By the court: "There is no such disparity in value between the standing trees and the cord wood in this case as was found to exist between the trees and hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed as a rule that a man