When we come to examine what is meant by a change of identity the unsatisfactory nature of this test becomes apparent, and there is great confusion in the books on the subject. Sometimes it is said (5) that the owner may reclaim the goods so long as they may be known, or, in other words, ascertained by inspection, and, sometimes, that when the thing is so changed that it cannot be reduced from its new form to its former state by "individual operation" its identity is gone (6). In one case it was held that the owner of trees made into timber might reclaim the timber "because the greater part of the substance remains" (7).

These different rules cannot be reconciled or satisfactorily applied to the various examples put, as, grain made into malt, wheat into bread, and milk into cheese, in which cases the identity is said to be changed; and cloth made into a coat, leather into shoes, a tree into squared timber, and iron into a tool, in which it is said there is no change of identity (8). There is, in truth, no definite rule as to what constitutes a sufficient change of identity to cause a loss of title, and the cases adopting this test are in hopeless confusion; nor does there seem to be any foundation of justice in the distinctions attempted to be made.

§ 26. The test of increased value. This is the natural

(5) 5 Hen. VII, 15 pl. 6, supra.

(6) Lampton's exrs. v. Preston's exrs., 1 J. J. Marsh. 454, where brick made from another's clay that were burnt were held to be changed, but unburnt brick were not.

(7) Moore 19, pl. 67.

(8) And compare the decision and examples put in the anonymous case above.

and just one and is that which the modern cases are fast adopting, although the old phraseology about the change in identity is not wholly discarded. Though the courts speak of change of identity in many cases in which the decision is in fact based on the change in value, these are really instances of the conservatism of legal terms. The courts mean that change of identity is a matter of change of value. No other ground will explain the cases or is logical. It may be accepted that the modern doctrine of accession is based upon the extent to which there has been a change in value. If the convertor has added enough value to the property he has acquired title. On this point a distinction is to be made between a mistaken and innocent conversion and a fraudulent or wrongful conversion.

§ 27. Innocent conversion. In Weymouth v. The Chicago and N. W. R'y Co. (9) the defendant by mistake and without wrongful intent converted the plaintiff's wood, then being at Farmington, where it was worth $1.50 per cord, and took it to Janesville where it was worth at first $4 and later $5 per cord. The plaintiff demanded the wood at Janesville and defendant did not deliver it. In an action for the conversion it was held that the value of the wood at Farmington should be allowed as the measure of damages. As in trover the plaintiff is entitled to recover the value of his property when converted, the decision must mean that the increase in the value of the wood resulting from its transportation, caused the title in it to pass to the defend(9) 17 Wis. 550.

ant, so that the plaintiff could not treat it as having been converted at Janesville. The identity was unchanged, so that by the old rule the title should have remained in plaintiff (10). In Single v. Schneider (11) the defendants cut logs from plaintiff's land by mistake and sawed and rafted them. It was held that the damages should have been the full value of the property, deducting the expense put upon it by defendant down to the time of beginning the action, i. e., the plaintiff was not entitled to the accession. In Wetherbee v. Green (12) defendant had in good faith, believing it to be his own, cut from plaintiff's land timber, worth when cut $25, and manufactured it into barrel hoops worth near $700. In replevin for the hoops, the court said: "The important question appears to us to be whether standing trees, when cut and manufactured into hoops, are to be regarded as so far changed in character that their identity can be said to be destroyed within the meaning of the authorities;....when the right to the improved article is the point in issue, the question how much the property or labor of each has contributed to make it what it is, must always be one of first importance.... No test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels by accession, unless it keeps in view the circumstance of relative

(10) There is much confusion in the cases on the question of the measure of damages in trover, and the point made in the text, that the proper ground of the decision is the change of title when the property was first taken, is not always taken. See the article on Damages in Volume XI of this work, for further discussion.

values."

And it was held that if the defendant had acted in good faith the title to the timber was changed by a substantial change of identity. The decision seems to rest upon the amount of change in value, although it is spoken of as a change in identity.

The rule to be deduced from the foregoing cases is that when there has been a conversion through innocent mistake and the convertor has added largely to the value of the property, he acquires title to it. The cases have not established any more definite test of the amount of accession necessary than that it shall be large enough so that it would be unjust to hold that the convertor shall lose his labor or material. If the action is replevin for the improved property, this is the only rule to be applied. If it is trover for the value of the property the equities can be more easily adjusted by allowing the plaintiff to recover only the original value of his property whatever the amount of the accession. Yet, strictly, perhaps, the only theory upon which that can be done is to treat the title as having passed to the convertor at the time of the first taking.

In Isle Royal Mining Co. v. Hertin (13) the plaintiffs through mistake and in good faith cut cordwood on the land of defendant and carried it away and piled it. The defendant took the wood. The value of the wood when the defendant took it was $2.872 per cord and the value of the labor expended upon it by plaintiffs was $1.871⁄2 per cord. Plaintiffs brought trover and indebitatus assumpsit, claiming to be remunerated for their labor. The

(13) 37 Mich, 332.

case was professedly decided on principles applicable to the law of accession, in favor of the defendant, the court saying: "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.

There is no such disparity in value between the standing trees and the cordwood in this case as was found to exist between the trees and the hoops in Wetherbee v. Green" (14).

§ 28. Wilful conversion. When the convertor has wilfully and without right taken another's property and made a small increase in the value, it follows a fortiori from the foregoing doctrines that the original owner does not lose title but may recover the property or its value with the increase. When, however, there has been a great change in value the question is more difficult. The general view, sustained by the weight of authority, is that a wilfully wrongful convertor cannot acquire title by accession however much value he may have added. In Silsbury v. McCoon (15) where A made grain, knowing it not to belong to him, into whiskey, it was held that the owner of the grain owned the whiskey, and the court expressly held this to be so without reference to the degree of improvement or the additional value

(14) See note (12), above.

(15) 3 Comst. (N. Y.) 379. A second trial of the case cited above.