Isle Royale Mining Co. v. Hertin

• Citation: 37 Mich. 332
• Court: Michigan Supreme Court
• Decision Date: 16 October 1877
• Parties: The Isle Royale Mining Company v. John Hertin and Michael Hertin

37 Mich. 332

The Isle Royale Mining Company v. John Hertin and Michael Hertin

Supreme Court of Michigan

October 16, 1877

Argued June 14, 1877

Error to Houghton. (Williams, J.)

Trover and Assumpsit. Defendant brings error. Reversed.

Judgment of the circuit court Reversed, with costs, and a new trial ordered.

T. L Chadbourne and S. F. Seager for plaintiff in error. One cannot recover in trover unless he owned the property or had lawful possession (1 Hilliard on Torts, 501-3; Burdick v Michael, 32 Mich. 246) and recovery must be for the value of the property at the time of conversion. Ripley v Davis 15 Mich. 75. A trespasser cannot acquire any property, general or special, in timber cut by him, and cannot maintain trover against another trespasser. Turley v. Tucker 6 Mo. 583. The owner of land cannot bring trover for saw-logs cut by a trespasser Final v. Backus 18 Mich. 218; Johnson v. Ballou 25 Mich. 460; Grant v. Smith 26 Mich. 201; Greeley v. Stilson 27 Mich. 153; Winchester v. Craig 33 Mich. 205; nor replevin when the identity of the article converted has been substantially changed. Wetherbee v. Green 22 Mich. 311.

Chandler & Grant and G. V. N. Lothrop for defendant in error. Where the chief value of the property consists of the labor in good faith expended on it, the title should follow the labor. Ryder v. Hathaway 21 Pick. 305; Story on Bailments 40; Wetherbee v. Green 22 Mich. 311. By appropriating labor expended by mistake upon his property, the owner waives the tort, and an implied promise is raised to pay a reasonable compensation. Hogsett v. Ellis 17 Mich. 351; Welch v. Bagg 12 Mich. 41; Strong v. Saunders 15 Mich. 339; 2 Greenl. Ev. § 107; 1 Pars. Cont. 4; where equity and good conscience require, a promise is implied. Turner v. Jones 1 Lans. 147; Sheldon v. Sherman 42 N.Y. 484.

OPINION

Cooley, C. J.

The parties to this suit were owners of adjoining tracts of timbered lands. In the winter of 1873-4 defendants in error, who were plaintiffs in the court below, in consequence of a mistake respecting the actual location, went upon the lands of the mining company and cut a quantity of cord wood, which they hauled and piled on the bank of Portage Lake. The next spring the wood was taken possession of by the mining company, and disposed of for its own purposes. The wood on the bank of the lake was worth $ 2.87 1/2 per cord, and the value of the labor expended by plaintiffs in cutting and placing it there was $ 1.87 1/2 per cord. It was not clearly shown that the mining company had knowledge of the cutting and hauling by the plaintiffs while it was in progress. After the mining company had taken possession of the wood, plaintiffs brought this suit. The declaration contains two special counts, the first of which appears to be a count in trover for the conversion of the wood. The second is as follows:

"And for that whereas also, the said plaintiff, Michael Hertin, was in the year 1874 and 1875, the owner in fee simple of certain lands in said county of Houghton, adjoining the lands of the said defendant, and the said plaintiffs were, during the years last aforesaid, engaged as co-partners in cutting, hauling and selling wood from said lands of said Michael Hertin, and by mistake entered upon the lands of the said defendant, which lands adjoined the lands of the said plaintiff, Michael Hertin, and under the belief that said lands were the lands of the said plaintiff, Michael Hertin, cut and carried away therefrom a large amount of wood, to-wit: one thousand cords, and piled the same upon the shore of Portage Lake, in said county of Houghton, and incurred great expense, and paid, laid out and expended a large amount of money in and about cutting and splitting, hauling and piling said wood, to wit: the sum of two thousand dollars, and afterwards, to-wit: on the first day of June, A. D. 1875, in the county of Houghton aforesaid, the said defendant, with force and arms, and without any notice to or consent of said plaintiffs, seized the said wood and took the same from their possession and kept, used and disposed of the same for its own use and purposes, and the said plaintiffs aver that the labor so as aforesaid done and performed by them, and the expense so as aforesaid incurred, laid out and expended by them in cutting, splitting, hauling and piling said wood, amounting as aforesaid to the value of two thousand dollars, increased the value of said wood ten times and constituted the chief value thereof, by reason whereof the said defendant then and there became liable to pay to the said plaintiff, the value of the labor so as aforesaid expended by them upon said wood and the expense so as aforesaid incurred, laid out and expended by them in cutting, splitting, hauling and piling said wood, to-wit: the said sum of two thousand dollars, and being so liable, the said defendant in consideration thereof, afterwards to-wit: on the same day and year last aforesaid and at the place aforesaid, undertook, and then and there faithfully promised the said plaintiffs to pay unto the said plaintiffs the said sum of two thousand dollars, and the interest thereon."

The circuit judge instructed the jury as follows:

"If you find that the plaintiffs cut the wood from defendant's land by mistake and without any willful negligence or wrong, I then charge you that the plaintiffs are entitled to recover from the defendant the reasonable cost of cutting, hauling and piling the same."

This presents the only question it is necessary to consider on this record. The jury returned a verdict for the plaintiffs.

Some facts appear by the record which might perhaps have warranted the circuit judge in submitting to the jury the question whether the proper authorities of the mining company were not aware that the wood was being cut by the plaintiffs under an honest mistake as to their rights, and were not placed by that knowledge under obligation to notify the plaintiffs of their error. But as the case was put to the jury, the question presented by the record is a narrow question of law, which may be stated as follows: whether, where one in an honest mistake regarding his rights in good faith performs labor on the property of another, the benefit of which is appropriated by the owner, the person performing such labor is not entitled to be compensated therefor to the extent of the benefit received by the owner therefrom? The affirmative of this proposition the plaintiffs undertook to support, having first laid the foundation for it by showing the cutting of the wood under an honest mistake as to the location of their land, the taking possession of the wood afterwards by the mining company, and its value in the condition in which it then was and where it was, as compared with its value standing in the woods.

We understand it to be admitted by the plaintiffs that no authority can be found in support of the proposition thus stated. It is conceded that at...