With the same policy of discouraging heedlessness that led to the denial of relief in cases of the improvement of land, the common law has refused to permit one who, in the mistaken belief that he was the owner, has enhanced the value of another's personal property by labor expended in its improvement or transportation, to recover the value of the benefit resulting to the real owner:
Isle Royale Mining Co. v. Hertin, 1877, 37 Mich. 332; 26 Am. Rep. 520: Assumpsit for value of labor and expenses in cutting, splitting, piling, and hauling wood. The parties were owners of adjoining tracts of timbered land, and the plaintiffs, in consequence of a mistake respecting the actual location, went upon the mining company's lands and cut a quantity of wood, which they hauled and piled on the bank of Portage Lake. Subsequently, the defendant took possession of the wood and sold it. Cooley, C.J. (p. 337): "Nothing could more encourage carelessness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration. Why should one be vigilant and careful of the rights of others if such were the law ? Whether mistaken or not is all the same to him, for in either case he has employment and receives his remuneration; while the inconveniences, if any, are left to rest with the innocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.
1 Greer v. Vaughan, 1910, 96 Ark. 524; 132 S. W. 456, 459, (cf. Reynolds p. Reynolds, 1892, 55 Ark. 369, 374; 18 S. W. 377); Adams v. Kells, 1909, 79 Kan. 564; 100 Pac. 506; Proctor v. Smith, 1871, 8 Bush (71 Ky.) 81, (cf. Patrick p. Woods, 1813, 3 Bibb (6 Ky.) 29; Hall v. Brummal, 1869, 7 Bush (70 Ky.) 43, where under exceptional circumstances the occupant was allowed cost of improvements); Ebel-messer v. Ebelmesser, 1881, 99 111. 541, 549; Union Hall Ass'n v. Morrison, 1873, 39 Md. 281; Petit v. Flint, etc., R. Co., 1899, 119 Mich. 492; 78 N. W. 554; 75 Am. St. Rep. 417; Hicks v. Blakeman, 1896, 74 Miss. 459; 21 So. 7, 400; Sires p. Clark, 1908, 132 Mo. App. 537; 112 S. W. 526; Lothrop v. Michaelson, 1895, 44 Neb. 633, 639; 63 N. W. 28; Wendell v. Moulton, 1852, 26 N. H. 41, 66; Fain v. Nelms, 1908, 113 S. W. 1002, (Tex. Civ. App.); Bacon v. Thornton, 1897, 16 Utah 138; 51 Pac. 153.
"A case could seldom arise in which the claim to compensation could be more favorably presented by the facts than it is in this; since it is highly probable that the defendant would suffer neither hardship nor inconvenience if compelled to pay the plaintiffs for their labor. But a general principle is to be tested, not by its operation in an individual case, but by its general workings. If a mechanic employed to alter one man's dwelling house, shall by mistake go to another which happens to be unoccupied, and before his mistake is discovered, at a large expenditure of labor shall thoroughly overhaul and change it, will it be said that the owner, who did not desire his house disturbed, must either abandon it altogether, or if he takes possession, must pay for labor expended upon it which he neither contracted for, desired nor consented to? And if so, what bounds can be prescribed to which the application of this doctrine can be limited ? The man who by mistake carries off the property of another will next be demanding payment for the transportation; and the only person reasonably secure against demands he never assented to create, will be the person who, possessing nothing, is thereby protected against anything being accidentally improved by another at his cost and to his ruin." 1
This rule seems inconsistent with that governing the measure of damages in conversion. According to the weight of modern authority, while a willful converter may be required to answer for the value of the property as enhanced by improvements which he has made upon it, one who converts goods by mistake is liable only to the extent of the value of the goods at the time and place of the original conversion.1 According to some of the authorities, this means simply that against an innocent converter exemplary or punitive damages may not be recovered. But in the case of Trustees of Dartmouth College v. Inter-national Payer Company? Judge Lowell points out that exemplary damages do not depend upon the improvement of the thing converted but upon the bad faith of the converter, and that consequently they would be the same whether the goods were enhanced in value or totally destroyed. The true basis of the rule, he contends, is that a converter who in good faith improves another's goods acquires a right to an allowance of the cost of his improvements, not to exceed the consequent enhancement in value of the property converted.
1 Accord: Gaskins v. Davis, 1894, 115 N. C. 85; 20 S. E. 188; 25 L. R. A. 813; 44 Am. St. Rep. 439.
1 Livingstone v. Rawyards Coal Co., 1880, 5 App. Cas. 25, (coal); Wooden-Ware Co. v. United States, 1882, 106 U. S. 432; 1 S. Ct. 398, (timber); United States v. Northern Pac. R. Co., 1895, 67 Fed. 890, (U. S. C. C, Or.), (value of standing timber); White v. Yawkey, 1896, 108 Ala. 270; 19 So. 360; 42 L. R. A. 199; 54 Am. St. Rep. 159, (value immediately after severance); Eaton v. Langley, 1898, 65 Ark. 448; 47 S. W. 123; 12 L. R. A. 474, (value in new form, less labor, etc., not exceeding increase in value); Maye v. Tappan, 1863, 23 Cal. 306, (value of gold ore, less expense of extracting); Winchester v. Craig, 1876, 33 Mich. 205, (value of timber where taken or market value less expense of preparation, and transportation); Gates v. Rifle Boom Co., 8188, 70 Mich. 309, 316; 38 N. W. 245, (value of standing timber); King v. Merriman, 1887, 38 Minn. 47, 54; 35 N. W. 570, (value of standing timber); Beede v. Lamprey, 1888,64 N. H. 510; 15 Atl. 133 ; 10 Am. St. Rep. 426, (value of timber immediately after severance); Forsyth v. Wells, 1861, 41 Pa. St. 291; 80 Am. Dec. 617, (value of coal in place); Herdic v. Young, 1867, 55 Pa. St. 176,179; 93 Am. Dec. 739, (timber); (cf. Lyon v. Gormley, 1866, 53 Pa. St. 261, 265); Single v. Schneider, 1869, 24 Wis. 299, 303, 1872, 30 Wis. 570, 574, (value of standing timber).
The rule is the same where the innocent converter sufficiently changes the nature or enhances the value of the goods to acquire title to them by accession. Lewis v. Courtright, 1889, 77 la. 190; 41 N. W. 615, (hay); Baker v. Meisch, 1890, 29 Neb. 227; 45 N. W. 685, (brick); Carpenter v. Lingenfelter, 1894, 42 Neb. 728; 60 N. W. 1022; 32 L. R. A. 422, (hay); Hyde v. Cookson, 1855, 21 Barb. (N. Y. Sup. Ct.) 92, (hides made into leather); Louis Werner Stave Co. v. Pickering, 1909, 55 Tex. Civ. App. 632; 119 S. W. 333, (timber converted into staves)
2 1904, 132 Fed. 92 (C. C, N. H.).
It is submitted that if an innocent converter is entitled to an allowance when sued for conversion, he ought to be given affirmative relief when the owner retakes the improved property. The denial of relief in the latter case is not only unjust but against public policy, for as Judge Lowell says,1 "if the plaintiff can hold his improved and transmuted property which he has physically retaken without allowance to the defendant, while in an action he can recover but a small part of the value of this improved property, the plaintiff will be disposed to resort to physical recovery without the aid of the law, even if force and a breach of the peace be the result." This consideration clearly outweighs the supposed danger of encouraging heedlessness and perjury to which Judge Cooley referred in Isle Royale Mining Company v. Hertin.2 And if it be contended that to allow the converter to recover would be to compel the owner, in many cases, to pay for improvements not desired by him, the answer is that he may elect, in every case, to let the converter keep the property and to recover the damages actually suffered as a result of its conversion.
1 Trustees of Dartmouth College v. International Paper Co., 1904, 132 Fed. 92, 97 (C. C, N. H.).
2 1877, 37 Mich. 332; 26 Am. Rep. 520.