their value, it was held that such increased value was the proper measure of damages: Grant v. Smith, 26 Mich. 201. It does not distinctly appear from the decision whether the defendant was a willful trespasser or not. Marston, J., however, in Winchester v. Craig, 33 Id. 222, says that in Grant v. Smith, the court proceeded on the theory that the defendant was a mere trespasser. In Foote v. Merrill, 54 N. H. 490, it was held that the increased value of trees cut and converted into timber was not recoverable in trespass quare clausum fregit, but the court said, citing the principal case, that the enhanced value could be recovered in trover.

In a case where timber was willfully cut on the public lands of the United States and converted into saw-logs and transported to a boom, it was held that the government could either replevy them there or bring trover, and that in either case there might be a recovery for the enhanced value, without any deduction for the defendant's labor: Bly v. United States, 4 Dill. C. C. 464. Judge Dillon in that case professedly follows Nesbit v. St. Paul Lumber Co., 21 Minn. 491, which was a decision in the same state. The case shows, however, that the inclination of his mind was in favor of the rule on general principles. In the course of his opinion he says that an innocent vendee of such logs converting them into lumber would be liable for the value of the lumber. In Nesbit v. St. Paul Lumber Co., 21 Minn. 491, it appeared that the defendant was an innocent purchaser of certain logs cut from the plaintiff's land and transported into the Anoka, whereby their value was considerably increased, and that he there converted them to his own use, and it was held that the enhanced value at Anoka, with interest, was the proper measure of damages. The case of Heard v. James, 49 Miss. 236, was one of replevin for a quantity of staves which it appeared that the defendants had manufactured from timber which they had willfully and tortiously cut on the plaintiff's land, and it was held that the damages should be punitive, and that the measure of recovery should be the value of the staves without any deduction for the defendants' labor, although the rule would be different if the defendants had acted in good faith. The court further said that the measure of damages in this class of cases was the same whether the action was replevin, trespass, or trover. Where a trespasser converted to his own use a field of growing corn, it was held, on the authority of the principal case, that he was not entitled to any deduction from the damages on account of his labor in husking and cribbing, though the value was enhanced thereby: Stuart v. Phelps, 39 Ia. 14. A similar case to the one last cited was Ellis v. Wire, 33 Ind. 127; S. C., 5 Am. Rep. 189. The action was trover for the conversion of wheat, and it appeared that the defendant unlawfully took possession of the wheat while growing in the field, drove the owner away, and harvested the grain himself. The court decided that the plaintiff was at least entitled to the enhanced value of the wheat, and that the defendant should not be admitted to prove the value of his labor in harvesting and threshing by way of reducing the damages. Frazer, J., delivering the opinion, after stating that there was some confusion in the decisions as to the proper measure of damages in such cases, remarked that this confusion probably arose, in part, at least, from a difference of opinion concerning the effect of resorting to this form of action, some courts holding that where a party brings trover he precludes himself from showing that the taking was willful, so that the inquiry as to damages is confined to the time of conversion, without regard to the form of the action, while in trespass it would be otherwise. He then proceeded as follows:

"Some loose ideas in reference to the time of conversion have also tended to darken counsel as to the measure of damages in trover, where the general

rule that the value of the property at the time of conversion has been held to be a universal rule. A wrongful taking and a demand and refusal are each held in trover to be not a conversion, but merely sufficient evidence of it. And yet nothing can be clearer than that these things do not change the title to the property, it still remains in the plaintiff, and may, by action of replevin, be recovered in specie so long as its identity is perceptible to the senses. It may be so recovered, though its form has been changed and its value greatly increased by the labor of the defendant, as in the case of logs converted into plank, wool into cloth, cloth into clothing, leather into boots and shoes, and the like. It may in the new form be replevied, because it is in that form still the property of the plaintiff, and the defendant is not enti tled to compensation for the labor bestowed upon it, for that was his own folly, and, indeed, he was a wrong-doer in the very act of adding such value to the property of another. The sale of the wheat was its actual conversion by the defendant, and its value at that time, in the form in which he sold it, was the measure of damages, if the plaintiff was content therewith; though we think he was entitled to the highest price of the property at any time between the taking and the sale. So are the English cases, Greening v. Wilkin son, 1 Car. & P. 625; and such seems to have been the doctrine of the common law since the year books: see Brown v. Sax, 7 Cow. 9; Betts v. Lee, 5 Johns. 348 [4 Am. Dec. 368]; Baker v. Wheeler, 8 Wend. 505; Silsbury v. McCoon, 3 N. Y. 379. It is held otherwise in Massachusetts, but the ruling is maintained there to preserve consistency of decision, and not because it was the doctrine of the common law. We do not like the Massachusetts rule, and if the question were res integra we would not adopt it, for the reason that it is too tender of the interests of the willful tort-feasor."

In Benjamin v. Benjamin, 15 Conn. 347, the action was for damages for the conversion of certain hay wrongfully seized under an attachment, and it was held that the plaintiff could recover the enhanced value without any deduction for the defendant's labor in cutting, curing, and storing the hay. The decision was, however, put on the ground that the expense of such cutting, curing, etc., was included in the costs of the attachment suit, and had been actually paid out of the avails of the property. The court referred to the doctrine laid down in the principal case, but refused to say whether they would adopt it as a general rule of damages in such actions.

There are several cases, however, in which the owner of property tortiously taken has been denied its value as enhanced by the labor of the wrong-doer. Thus in Moody v. Whitney, 38 Me. 174, which was trover for the conversion of certain timber, it appeared that the defendant was a willful trespasser, and having cut the timber on the plaintiff's land and converted it into sawlogs, had transported them several miles and rolled them into a certain stream, whereby their value was considerably enhanced, but it was held that the plaintiff could recover only the value at the time of the severance of the trees from the realty, although it was said that the measure of damages would be different if the plaintiff had regained possession and there had been a new conversion after such enhancement of value. Referring to Brown v. Sax, 7 Cow. 95, and Baker v. Wheeler, Tenney, J., delivering the opinion of the court, says: 'If, in these cases, there was no evidence of a distinct conversion after the logs had been converted into boards and plank, the rule for the damages seems not only to be a departure from the principle that the damages shall be the value of the article at the time of the conversion, and interest thercon, but at variance with adjudged cases." He then reviews certain English decisions, to be more particularly mentioned hereafter, determining that in trespass or trover for coal or ore taken from a mine, the

measure of damages was the value when severed: Morgan v. Powell, 3 Q. B. (Ad. & El. N. S.) 278; Martin v. Porter, 5 Mee. & W. 351; Wood v. Morewood, 3 Q. B. (Ad. & El. N. S.) 440, note, and proceeds as follows: "If, however, the original owner chooses to possess himself of the same property, with its accretions, after the conversion, and it is again converted, there is no good reason why the taker, whether he is the one who originally took it, or a stranger, should not be holden to pay the value which it had when last converted. And a demand by the owner and a refusal by the taker, after it had passed into an improved condition, might be regarded as evidence of a con. version after the first taking, which might admit of the same rule of damages: Cushing v. Longfellow, 26 Me. 306."

The case of Cushing v. Longfellow, above referred to, was trespass for taking, carrying away, and conveying the plaintiff's mill-logs, and the same rule of damages was laid down as in Moody v. Whitney, supra. Whitman, C. J., delivering the opinion, said: "The plaintiffs, in their action of trespass, have not a right to select any other place than that where the injury was origi nally done, to enhance the value of the articles taken, although they might have been greatly enhanced in value by a removal to such other place. It is true they might have seized them wherever they could find them; and might have demanded them at another place, of one having them there, and in an action of trover have recovered the value of them there: Baker v. Wheeler, 8 Wend. 505, and cases there cited. But in trespass, the rule is believed to be different.' These two cases of Cushing v. Longfellow, and Moody v. Whitney, both seemingly recognize the soundness of the rule adopted in Baker v. Wheeler, where the plaintiff relies upon a conversion after the enhancement of value, and shows a demand and refusal then, the defendant being still in possession. There is no apparent reason why the plaintiff should, in such a case, be limited to the original wrongful taking or conversion. Certainly there is no hardship in a rule that permits him to show a conversion at any time subsequent to the original taking, so long as the defendant's possession continues, by proving either a demand and refusal or a distinct act of conversion. Indeed, without such evidence, where a conversion is once shown, ought it not to be presumed to be repeated every moment that the defendant keeps possession? Such seems to be the theory of that class of cases in which the plaintiff in trover for stocks and other chattels of a fluctuating character, is permitted to recover the highest value up to the time of the trial. They go farther; for they assume that where a conversion is once shown it continues to the trial, even though the defendant has in the mean time disposed of the property. We do not propose, however, to enter at this time into a discussion of the doctrine of that class of decisions.

In one late case the bold ground is taken that where one knowingly and willfully cuts timber on another's land and converts it into lumber, he is liable in replevin, in case the plaintiff can not obtain a specific delivery of the property, only for the value of the trees at the stump, unless the case is accompanied by such circumstances of outrage, etc., as to render exemplary damages proper: Single v. Schneider, 30 Wis. 570. Of course the same rule would hold in trover, if it were sound. The court in that case expressly approved and adopted as the rule of decision a dictum of Judge Paine, in Weymouth v. Chicago etc. R. R. Co., 17 Wis. 550, 555, to the effect that no distinction should be made in this respect between intentional and unintentional trespassers. Gilfillan, C. J., in delivering the opinion of the court in Nesbit v. St. Paul Lumber Co., 21 Minn. 491, refers to Single v. Schneider as "the only case" in which it has been held that the owner of property tortiously taken and enhanced in value by the wrong-doer, could not recover such enhanced value.

"This case," said he, "we consider at variance not only with every adjudication on the point, but with principle, for the wrong-doer can be permitted to retain a part of the value only on the ground that he has a property in the chattel, to the extent of that part of the value that he is allowed to retain." In consequence of the decision in Single v. Schneider, the legislature, in 1873, deeming it necessary to modify the rule so as to furnish protection to the large timber interests of that state, enacted a law providing that where one wrongfully cut timber on the lands of another, the rule of damages should be the highest market value of the property up to the time of the trial, in whatever state it might be put: Webster v. Moe, 35 Wis. 75; Ingram v. Rankin, 47 Id. 406; S. C., 32 Am. Rep. 762. If, as held in Single v. Schneider, one who "knowingly and willfully" takes another's property without his consent, may manufacture it into what form he pleases and make what profit he can out of it, and yet be liable only for the bare value of the property when first taken, with interest thereon, trespass might easily be made a lucrative occupation. It is certainly better to give extravagant compensation to an injured party than to permit the wrong-doer to make a profit out of his wrongful act. WHERE PROPERTY IS TAKEN OR CONVERTED BY MISTAKE, or under a bona fide belief of right, the doctrine of the better considered cases is that the defendant is liable in trover only for its value before he has bestowed any labor or expense upon it, or that he is to be allowed a deduction for such labor and expense, if the enhanced value is made the measure of damages, the latter rule being preferred.

This rule has been frequently applied, to a greater or less extent, in cases where coal or ore has been taken by mistake, or under a claim of right from another's mine. A leading English case on this point is a nisi prius decision by Parke, B., in Wood v. Morewood, 3 Q. B. (Ad. & El. N. S.) 440, in notis. That case, it appears, was an action for an injury to the plaintiff's reversion in certain closes by making holes and excavations, and getting coals, with a count in trover for coals. The defendant had taken the coals bona fide, supposing the land was his own under a purchase from Sir John Zouch. Parke, B., told the jury that "if they found for the plaintiff, they were to determine what damages should be given; that if there was fraud or negligence on the part of the defendant, they might give as damages under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter; but if they thought that the defendant was not guilty of fraud or negligence, but acted fairly and honestly in the full belief that he had a right to do what he did, they might give the fair value of the coals as if the coal fields had been purchased from the plaintiff."

The case of Martin v. Porter, referred to by Parke, B., is reported in 5 Mee. & W. 351, and is also a leading one. That was an action of trespass against the defendant for mining into the plaintiff's land and taking his coal. The measure of damages there adopted was the sale price at the mouth of the coal-pit, less the expense of getting the coal there, without any deduction for mining it. The case itself does not distinctly show whether the trespass was willful or not. In the subsequent case of Wild v. Holt, 9 Mee. & W. 672, it appears, however, from a remark of Parke, B., that the ground of decision, in Martin v. Porter, was that the defendant was a willful wrong-doer. The same measure of damages was adopted, on the same ground, in Wild v. Holt, 9 Mee. & W. 672, where Parke, B., says that the rule is "a very salu. tary one, because the parties must know, or at least they may know, by proper dialing, that they were trespassers on their neighbor's property."

The same rule was again adopted by Lord Denman, C. J., in Morgan v. Powell, 3 Q. B. (Ad. & El. N. S.) 278, which was an action of trespass for "breaking and entering the plaintiff's coal mine, and digging and getting coal." Sir W. W. Follett, however, in his argument for the defendant, said that if the plaintiff had brought trover for the coal at the pit's mouth, he could have recovered its value, without any deduction for its transportation thither. Nothing is said in the case last cited as to whether it was one of willful trespass or not. The doctrine of Wood v. Morewood, 3 Q. B. (Ad. & El. N. S.) 440, note, that any unintentional trespasser is liable in such a case only for the value of the coal in place, or for its value at the pit's mouth, less the cost of mining it and transporting it thither, is approved and followed in Hilton v. Woods, L. R., 4 Eq. Cas. 432, where a bill in equity was filed for an account of coal taken from the plaintiff's mine, and Vice-Chancellor Malins said: "There is much difficulty as to the mode of assessing the compensation to an owner of coal which has been improperly worked by the owner of an adjoining mine. It is clear upon the authorities that a different principle is applicable when the coal is taken inadvertently, or, as in the present case, under a bona fide belief of title, and when it is taken fraudulently, with full knowledge on the part of the taker that he is doing wrong, or, in other words, committing a robbery. In such cases it may be proper to allow the strict rule laid down in Martin v. Porter, 5 Mee. & W. 351, which is to charge the value of coal, without allowing any of the expenses of getting it. But in cases where no such ingredients have existed, a milder rule has been applied, as in Morgan v. Powell, 3 Q. B. 278; and Wood v. Morewood, 3 Id. 440, note. In the latter case a rule was adopted by Lord Wensleydale, which I shall follow on the present occasion." The same rule was adopted also in the case of In re United Merthyr Collieries Co., L. R., 15 Eq. Cas. 46; S. C., 5 Eng. Rep. (Moak's ed.) 707, and there being no fraud suggested, a trespasser who had worked into a mine adjoining his own, and taken coal, was treated as a purchaser at the pit's mouth, and held liable for its value there, less the cost of mining and transportation, so as to put the owner in the same position as if he himself had severed and raised the coal.

The doctrine of Wood v. Morewood has been approved and applied also in substance in several cases of the same kind in the United States. In Forsyth v. Wells, 41 Pa. St. 291, it appeared that the defendant, whose land adjoined the plaintiff's, had, by mistake, dug coal in his drift beyond the dividing line, and it was held that he was liable in trover only for the value of the coal in place, together with damages for such injury to the land as the mining had caused. Lowrie, C. J., states the doctrine thus:

"Where the defendant's conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, or willful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If raw material has, after appropriation and without such wrong, been changed by manufac ture into a new species of property, as grain into whisky, grapes into wine, furs into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article: 6 Hill, 425, and note; 21 Barb. 92; 23 Conn. 523; 38 Me.

174.

"Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; and so long as we bear this in mind, we shall have but little difficulty in managing the forms of actions so as to secure a fair result. If the defendant in this case was guilty of no intentional wrong, he ought not to have been charged