Confusion consists in the mixture of goods belonging to different persons so that the property of each cannot be identified from that of the others.53
We now consider the case of property which becomes commingled with the goods of another so that it is impossible to separate the property into the original masses.
51. State v. Repp, 104 la. 305.
52. Cortelyou v. Van Brundt, 2 Johns (N. Y.) 357.
53. Hesseltine v. Stockwell, 30 Me. 237.
The question then arises: to whom do the goods belong ? The mixture might be either innocent or wrongful.
If confusion is wrongful it seems to be the law that the title of the wrongful doer is lost and the mass belongs to the other party. If the confusion is innocent or by accident each one owns his proportional part and the former owners are owners in common.
The law on the subject of confusion is itself in confusion and the cases have been decided differently, but it seems to be the weight of authority, however, that if goods are wrongfully mixed with the goods of another, the wrongdoer loses his title, especially if the value of his goods is less than the value of the other goods and the same rule seems to apply in the case of one who is merely negligent.54 It is necessary in these cases in order to have this result, that the goods cannot be separated, for if the mixer can prove the identity of his own goods he does not lose ownership in them.
Title by accession is that title which one gains because the property of another is incorporated with his own, or because he has changed the character of another's property by the bestowal of his labor thereupon.
In confusion we have a mixture of similar masses, the character of the new mass thus formed remaining un54. Stone v. Marshall Oil Co., 208 Pa. St. 285.
changed, and remaining capable of separation into the original masses by mere division; in accession we have the incorporation of one person's property with the property of another so that the separation into the original masses becomes either impossible or at least a matter of tearing down, or we have a change in the character of one's property by the labor of another. We assume also that there is no contract or understanding between the parties as to the result. Thus one without another's consent, either with wrong motive or innocently, uses that other's boards in his carriage, or makes that other's clay into bricks, or in making wine uses his own and another's grapes. What of the resultant title?
Where accession is innocent the weight of authority seems to be that the owner of the property may follow it and retake it so long as he can identify it but where the accession is wrongful he may retake it together with the articles to which it is added and together with the value of the services which have been bestowed upon it.
The subject of accession like that of confusion is not entirely clear,55 the cases not being as numerous as might be expected and the authorities being in conflict. It is therefore hard to lay down the rules. It seems, however, that the law may be generally stated about as follows: That if the accession of goods to other's goods has been wrongful the party who has made the addition or bestowed the labor will lose the property and has no right of compensation for his labor, while if the accession is innocent and there has been no loss of identity, the original owner may follow the property, but must make reimbursement for the labor bestowed or additional value. In this case it is necessary that the property do not lose its identity by the accession. It is difficult to state at what point the article loses its identity. Turning wood into lumber, grain into whiskey, and similar changes have been held not enough to destroy identity. Where the accession is wrongful but the increase in value is very great it is doubtful if the original owner would acquire the right to the new article unless it was a deliberate case of theft or malice. Where the article innocently taken does lose its identity, then all the former owner has is a right to recover its value when it was taken.
55. Lampton v. Preston, 1 J. J. Marsh, 454.
The authorities are in conflict when it comes to illustrations. Does cloth made into a coat lose its identity? Milk made into cheese? Grain made into malt? Clay made into brick? The authorities are in conflict. In reference to title by confusion, one judge says, "Few subjects in the law are less familiar, or more obscure than that which relates to the confusion of property." 56 In reference to accession, one court says: "There is therefor no definite settled rule on the question."57
56. Rider v. Hathaway, 21 Pick. (Mass.) 298.
57. Lampton v. Preston, supra.