Ouria. Here was, beyond all doubt, a tortious taking of the trees. The consent of the owner is not pretended. The taking of the logs by the defendants was also tortious. The only question is, whether the former was entitled to the boards which the defendants made of them. We think the property was not changed by this act.
The rule, in ease of a wrongful taking, is that the taker cannot, by any 97 act owni accl™e title, unless he either destroy thi of the thing: as by changing money into a cup, ox grain into malt; or annexing it to, and making it a part oi some other thing, which is the principal; or changing its nature from personal to real property; as where it is worked into a dwelling house.
Thus, cloth made into a garment, leather into shoes, trees squared into timber, and iron made into bars, may be reclaimed by the original owner, in their new and improved state. Bro. Property, pl. 23; F. Moor. Rep. 20, pl. 67. These authorities are translated by Yiner, in his Aridgment, (Property (E) pl. 5;) and the doctrine traced up to the Year Books. The same distinctions are laid down by several cases in this court. Betts v. Lee, 5 John. 338; Curtis v. Groat, 6 id. 168; Babcock v. Gill, 10 id. 287.
A part of the original case in Moore, cited by Yiner, puts the very point before the court, and gives an opinion upon it thus: “ M si home prist certain arbres, and puis il fait boards de eux ; uncore le owner poit *eux reprendei; quia major pars substantice remanei”[1] Footnotes [[1]] The civil law required the thing to be changed into a different species, and to be incapable of being restored to its ancient form; as grapes, made into wine; before the original proprietor could lose his title.
Nor even then, did the other party acquire any title by the accession unless the materials had been taken away in ignorance of their being the property of another. Vinnius. Inst. lib. 2, tit. 1, § 25.
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