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was not known. A vessel sunk at sea is not wreck (6). It was provided by statute, 3 Edw. I. C. 4, that if a man, dog, or cat escaped alive from the wreck (this being a means of indentification) and the goods were claimed within a year and a day, the owner should not lose them; but it was held in Hamilton v. Davis (7) that the goods were not lost to the owner if he could identify them, even if nothing came alive from the wreck. This right of the crown has probably passed to the American states if they choose to exercise it. The several states bordering on the sea have enacted laws providing for the safe-keeping and disposition of property wrecked on the coast. In the absence of statutory provisions the owner would not lose his property, provided he can identify it and appears within a year and a day to claim it, which time runs from the day the goods are actually taken by the finder. (8). Subject to the rights of the owner and the claims of the state, it seems the finder would be entitled to retain the goods by virtue of the right of possession, if not a trespasser (9).
§ 20. Same: Waifs and estrays. Waifs were goods stolen and thrown away or waived by the thief in his flight. Under certain circumstances they were given to the king by the common law if seized for his use (10). The doctrine has never been adopted in the United States.
(6) Baker v. Hoag, 7 N. Y. 555. (7) 5 Burr. 2732.
(8) Murphy v. Dunham, 38 Fed. Rep. 503. It seems doubtful whether the limit of a year and a day would now be enforced.
(9) See Barker v. Bates, 30 Mass. 255. (10) 1 Bl. Com. 297.
The true owner does not lose title so long as he can identify his property
Estrays are wandering domestic animals of value whose owner is unknown. The common law gave them to the king and they most commonly came to belong to the lord of the manor by special grant from the crown (10).
In probably all of the United States there are statutes providing for the care and disposition of estrays, the usual practice being to dispose of them for the publio benefit if the owner does not claim them.
821. Same: Treasure trove. This is valuable property, such as money, bullion, gold and silver plate, and works of art found hidden in the earth and of which the owner is not known. The English common law gave them to the king (11). In many of the United States the legislature has vested treasure trove in the state. Although the states may be deemed to have succeeded to the rights of the crown, those rights would scarcely be enforced in the absence of statutory provisions on the subject. The original owner would always be entitled to his property if he appears and claims it, unless barred by statute of limitations. Subject to his rights and the rights of the state the question would be as to the finder's right of possession. It will be convenient to treat later of this question under the general head of “Finding,” $$ 81-90, below.
§ 22. Same: In general. Lost and abandoned chattels other than those specially treated above were by
(10) 1 Bl. Com. 297. (11) 1 Bl. Com. 295.
the common law given to the finder, subject to the claims of the original owner (12). This matter also will be treated later under “Finding.” In some of the states it is a subject of regulation by statutes, which provide for the care and disposition of found property.
(12) 1 Bl. Com. 296.
TITLE BY ACCESSION.
8 23. Definition of accession. Accession is the addition to the value of one's property of the labor or material of another. The word is also used in the sense of the right to such addition (1).
§ 24. Who is entitled to accession? When is one entitled to the accession to his property, or, in other words, when is he entitled to his property with the accession to it? The question arises when A has made accession of labor or material to the property of B. The answer to the question depends on whether title to the property has passed to A as a result of the accession. When A has made such accession in pursuance of an agreement with B to improve B's property for him, of course B retains title to the property as increased in value. Thus, if B takes his own materials to a tailor and employs the latter to make them into a suit of clothes, B owns the suit. When, however, A has converted (2) B's property and,
(1) Chancellor Kent defined accession as the right to all which one's own property produces, whether that property be moveable or immoveable, and the right to that which is united to it by accession, either naturally or artificially. 2 Kent Com. 360. This broader meaning includes the natural increase of property, e. g., of animals. The definition in the text, however, is more appropriate to the questions of law to be considered in this chapter,
(2) On what constitutes a conversion, see the article on Torts, Chapter IV, in Volume III of this work.
without his consent, made accession to it, there may be a question whether the title has passed to A. If not, B still owns the whole. If the title has passed, it is no longer B's property, and he can recover only the value of the property originally converted.
8 25. The test of identity. This was the one first
§ adopted by the courts, the general principle being laid down that if one's property is converted and added to in value, but its identity is not changed, the original owner is entitled to it in its improved form. Thus where leather belonging to defendant was converted by the plaintiff who made it into slippers and shoes and boots, and the defendant took them, it was held that he might, for he had not lost his property for its identity had not been lost. The court said that when one makes malt of another's grain, or pennies are made from metal, the former owner's title is lost for there the identity is gone. So, if A's timber is built into B's house it belongs to B because it has become real property (3).
This rule is still often stated as the law. In Silsbury v. McCoon (4) the plaintiffs made grain not belonging to them, but then in their distillery, into whiskey. Later the whiskey was sold on execution against the owner of the grain and purchased by the defendant who converted it to his own use. In trover by the plaintiffs it was held that the plaintiffs had acquired title to the whiskey by manufacturing it because “the nature and species of the commodity was entirely changed and its identity destroyed.”
(3) Anon., Y. B. 5 Hen. VII, 15 pl. 8. (4) 6 Hill 425.