concurred specially, as follows:
I concur in the decision of the other members of the court as to their conclusions, and that the trial and verdict, if had, would have been for lumber which those defendants did not convert, and not for logs. But there are other reasons for arriving at the same conclusion, which I will mention.
The complaint joins four defendants. It alleges facts against two of them which would entitle the plaintiff to recover in trespass or trover: Trespass for entering upon the plaintiff’s land and cutting timber therefrom, or trover for converting the logs after they were cut, by making a sale thereof; all of which was willful wrong. These two defendants were never served or impleaded.
The action, by the title against the four, proceeded against two of them, who were served and impleaded; and the evidence shows that the latter two defendants were innocent purchasers from the first two willful trespassers, and that the said innocent purchasers converted the logs by sawing them into lumber.
The complaint alleges that the four defendants jointly *428committed the trespass, the first conversion and the second conversion of the logs, and finally the conversion of the lumber; and prays judgment for all of said wrongs as joint wrongs of the whole four defendants.
Now, the two defendants against whom the verdict could have been rendered, if any were rendered, did not participate in the willful trespass or conversion. This willful trespass and conversion was complete and finished before the two defendants, who were innocent purchasers, had the logs or converted them.
A judgment upon the complaint would be conclusive that the innocent purchasers joined in the wrongful trespass of the other two, when in truth they did not so join, nor did they participate therein in any. way.
Such a judgment being against joint wrong-doers, the innocent purchasers would be estopped thereby from recovering from their vendors for the failure of title, upon account of the rule that joint wrong-doers cannot enforce contribution. Such a judgment ought not to have been entered upon this complaint.
If the plaintiff wished to recover from these two innocent purchasers, he should have amended his complaint so that it would not charge them as joint wrong-doers in the first trespass and conversion; in fact, he must have dismissed the complaint as to the willful trespassers, so that the action would have been against them, the innocent purchasers only, for what they did. It could have charged those served with the entire value of the logs, which they entirely converted, after the complete conversion had been made by the other two defendants.
The two different conversions were two separate wrongs, each committed by different parties, and no joint judgment against all could be entered, nor a judgment against either party, as of a joint wrong of the four.
The first willful trespass and conversion was committed by the defendants not served or tried. They cut the trees and sold the logs. Had the action been against them, and had it been for trespass, the measure of damages would have *429been the diminished value of the land, with, perhaps, exemplary damages. If they proved that the value of the land had not been diminished, by proving that they paid the highest price for the land that plaintiff could have received if no trespass had been committed, then, perhaps, nominal damages only would have been recoverable.
Perhaps the rule that a pleading must be construed most unfavorably to the pleader would have permitted those defendants to claim that the action was trespass, and claim this defense.
However this may be, it is not in this case, and is not decided.
Oould the United States waive the trespass and sue in trover ?
Oould it recover the price of the land, its value before the trespass, and afterwards elect to pursue the logs, which were the fruit of that trespass, and by changing the form of action, recover satisfaction for the trespass, and yet recover the result thereof ?
I have much doubt as to this right upon the part of the government; and the United States District Court of Oregon, and the District Court in this case, were of opinion that the purchase of the land by the trespassers at its highest value before the trespass, and the United States accepting that value, operates as a complete release for the wrong. I will not now decide that those courts were wrong in this.
Mr. Justice Turner concurred specially, as follows:
The appellant brought suit in the court below for the conversion of a quantity of lumber valued at $18,225.
We are all agreed that this is the true construction of the complaint. In order to sustain this complaint it offered proof to the effect that certain persons had cut and removed from lands of the United States a quantity of saw-logs, and that said sawlogs were afterwards sold to the appellees, and were by them manufactured into lumber at their sawmill. It was admitted on the trial that the appellees bought the sawlogs and manufactured them into *430lumber without knowledge of the title thereto of the United States, or of the trespass committed by the vendors of the appellees in their procurement.
Upon these facts, the direction of the court below to the jury to find for the appellees was clearly correct.
The appellant had sued for the conversion of property that did not belong to it. It owned the logs which came into the possession of the appellees. It did not own the lumber into which they were cut. The latter, under the doctrine of accession, becomes the property of the appellees. This doctrine is stated by a well known writer on the law of personal property thus:
‘ ‘ Where no element of willfulness or intentional wrong appears on the part of him who applies another’s materials, and the identity of those materials has finally disappeared in the new product, or where it can be shown that his own labor and materials contributed more to the value of the present chattel than those materials which he took without intentional wrong, he shall keep the chattels as his own; making, however, due compensation to the owner of the materials for what betook.” (Schouler on Personal Property, vol. 2, p. 37.)
The doctrine here stated is abundantly sustained by adjudged cases, and by standard text writers. (Blackstone’s Commentaries, vol. 2, p. 404; American and English Encyclopedia of Law, vol. 1, title “Accession”; Silsbury v. McCoon, 3 N. Y. 378, 53 Am. Dec. 307; Wetherbee v. Green, 22 Mich. 311, 7 Am. Rep. 653; Cross v. Marston, 17 Vt. 533, 44 Am. Dec. 353; Lampton's Exrs. v. Preston's Exrs., 1 J. J. Marsh. (Ky.) 454, 19 Am. Dec. 111; Pierce v. Goddard, 22 Pick. 559, 33 Am. Dec. 764.)
The title to the lumber, for the conversion of which the suit was brought in this case, was, in my opinion, fully vested in the appellees upon both of the grounds stated by Schouler.
First, the identity of the logs had disappeared in the new product; second, the labor bestowed upon the logs by the appellees, from which the new product resulted, contributed more to the value of the product than the logs did.
*431The appellant, in its complaint, alleges the value of the logs to have been six dollars per thousand feet, board measure, at the mill. It alleges the value of the lumber to have been fifteen dollars per thousand, board measure, at the mill. As a matter of fact, the disparity in value was much greater.
There is nothing in the case of Wooden Ware Co. v. The United States, 106 U. S. 432, which militates against the application of the doctrine of accession to cases such as this one. The only thing determined in that case was the proper rule of damages for the conversion of personal property which confessedly belonged to the United States.
I think the judgment of the court below must be affirmed.