Bryant v. Ware , 30 Me. 295 ( 1849 )

Howard, J.

— This was an action of trespass de bonis asportatis, for a quantity of cedar railroad sleepers, juniper knees, shingles and juniper timber. There was evidence, as stated in the exceptions, tending to show that the lumber was cut in the winter of 1840-41, by Samuel Potter, a trespasser, on two contiguous tracts of land, and hauled into a brook, to be floated down to a market. That one of the tracts of land, was owned by the defendant, and that the other, called the college land, was owned by Timothy Boutelle. That in the spring following, the timber was run down to the Penobscot river and rafted into eleven rafts, six of which were run to Bangor, immediately after by Potter, and “ delivered to the plaintiff to pay him what Potter owed him, and the balance to be paid to Potter, (the plaintiff having supplied Potter while cutting the lumber.”) “ That Potter was a trespasser on both lots, on which he cut the timber;” and that “there was no other intermingling of the timber cut from both tracts, except that the logs were hauled into the same brook, at the same landing, and afterwards rafted into the same rafts, there being no marks on any of the timber.”

The defendant took the five rafts at Oldtown, as his property, and soon after took the remaining six rafts out of the possession of the plaintiff, at Bangor.

The instructions to the jury, to which exceptions were taken and urged in the argument, were: —

1. That, if a part of the lumber was cut pn the defendant’s land, and a part on the college land, and the whole was mixed together in such a manner, by those who cut it, that it could not be distinguished, the defendant had a right to take the whole, and that this action of trespass could not be maintained.

2. That if the defendant did take the five rafts at Oldtown, and if they amounted to more than all of the timber cut from his land, it would make no difference where he took it, if he intended to seize all of^tbe timber cut as before mentioned, if they found that it was intermingled, and could not be distinguished as before stated/

If .one take the goods of another, as a trespasser, he does not thereby acquires title to them, and cannot invest another with a title; but the original owner may follow his property and reclaim it from the trespasser, or any other person claiming through hwi, so long as the identity can be established.

If the. mil be r taken by Potter, as a trespasser, from the land of the def&hdant, was so mingled with the other timber taken by him from the college land, that it could not be distinguished, it would'^roduce what is denominated a confusion of goods. Loomis v. Green, 7 Greenl. 393; Wingate v. Smith, 20 Maine, 287; Hazeltine v. Stockwell, 30 Maine, 237; Ryder v. Hathaway, 21 Pick. 298; Willard v. Rice, 11 Metc. 493; Betts v. Lee, 5 Johns. 348; Curtis v. Groat, 6 Johns. 168; Babcock v. Gill, 10 Johns. 287; Brown v. Sax, 7 Cowen, 95; Treat v. Barber, 7 Conn. 280; Barron v. Cobleigh, 11 N. H. 558.

Where the confusion or commixture of goods, is made by consen't ol* the owners, or by accident, and without fault, so that they cannot be distinguished, but the identity remains, each is entitled to his proportion.

This was also the doctrine of the civil law. (Just. Inst. Lib. 2, tit. 1, <§> 27, 28.)

But if such intermixture be wilfully or negligently effected by one, without the knowledge or approbation of the other owner, the latter would be entitled by the common law, to the whole property, without making satisfaction to the former, for his loss. The civil law, however, required the satisfaction to be made. Browne’s Civil Law, 243; Ward v. Ayre, Cro. Jac. 366; 2 Black. Com. 405; 2 Kent. Com. 363, 364, where the civil law is stated differently by the learned Chancellor, page 364; Story’s Com. on Bailments, § 40; Lupton v. White, 15 Vesey, 440; Hart v. Ten Eyck, 2 Johns. Chan. 62.

If the defendant found his timber, which had been wrongfully taken from his land, mingled with other timber, in the manner stated in the evidence, so that it could not be distinguished, he had clearly a right to take possession of the whole, without committing an act of trespass, even if he may be held | to account to the true owner for a portion of it. He had, at least, a common interest in the property, and in taking possession, he asserted only a legal right. Inst. Lib. 2, tit. 1, § 28 ; Story’s Com. on Bailments, $ 40.

In any view of the case, upon the facts presented, the instructions were correct. Exceptions overruled.