— This was an action of trover brought to recover the value of certain pine logs.
The logs appear to have composed a part of a larger lot estimated to contain more than six hundred thousand feet, which were cut and hauled by Leander Preble. The case states, that there was testimony tending to prove, that Preble cut on his own land about six hundred thousand feet of pine lumber, and also cut on the land of the plaintiff about one hundred thousand feet of pine lumber of a similar quality, all of which logs were marked with the same mark and hauled and landed on the same landing place.
With other instructions the jury were instructed, “ that it did not appear, that any question of confusion of property arose in the action.”
What will constitute a confusion of goods has been the subject of much discussion, and it has become a question of much interest to the owners of lands, upon which there are timber trees, as well as to those persons interested in the lumbering, business, whether the doctrine can be applicable to the inter-mixture of logs.
When there has been such an intermixture of goods owned by different persons, that the property of each can no longer be distinguished, what is denominated a confusion of goods has taken place. And this may take place with respect to mill logs and. other lumber. But it can do so only upon proof, that the property of each can no longer be distinguished^ That the doctrine might be applicable to mill logs is admitted,
*242in the case of Loomis v. Green, 7 Greenl. 393. The case of Wingate v. Smith, 20 Maine, 287, has been alluded to as exhibiting a different doctrine ; but the case does not authorize such a conclusion. The instructions were, “ that merely taking the mill logs and fraudulently mixing them with the defendant’s logs would not constitute confusion of goods.” These instructions were, and clearly must have been approved; for an, additional element was required, that the mixture should have been of such a character, that the property of each could no longer be distinguished. The opinion merely refers with approbation to the case of Ryder v. Hathaway, 21 Pick. 298, and says, “ the principles there stated would authorize the instructions, which were given on that point in this case.”
The common law in opposition to the civil law assigns the whole property, without liability to account for any part of it, to the innocent party, when there has been a confusion of goods, except in certain cases, or conditions of property. Chancellor Kent correctly observes, that the rule is carried no further, than necessity requires. 2 Kent’s Com. 365.
There is therefore no forfeiture of the goods of one, who voluntarily and without fraud makes such an admixture. As when, for example, he supposes all the goods to be his own, or when he does it by mistake.
And there is no forfeiture in case of a fraudulent intermixture, when the goods intermixed are of equal value. This has not been sufficiently noticed, and yet it is a just rule, and is fully sustained by authority. Lord Eldon, in the case of Lupton v. White, 15 Ves. 442, states the law of the old decided cases to be, ‘‘ if one man mixes his corn or flour with that of another and they were of equal value, the latter must have the given quantity ;| but if articles of a different value are mixed, producing a third value, the aggregate of the whole, and through the fault of the person mixing them, the other party cannot tell what was the original value of his property, he must have the whole.” This doctrine is stated with approbation by Kent. 2 Kent’s Com. 365. It is again stated in the case of *243Ryder v. Hathaway. The opinion says, “ if they were of equal value, as corn or wood of the same kind, the rule of justice would be obvious. Let each one take his own given quantity. But, if they were of unequal value, the rule would be more difficult.”
In the case of Willard v. Rice, 11 Metc. 493, the question, whether palm-leaf hats, which were intermixed, were of equal value, does not appear to have been, although it would seem that it might have been, made. The case is not therefore opposed to the doctrine here stated. The doctrine is noticed, in the cases of Hart v. Ten Eyck, 2 Johns. Ch. 62; Ringgold v. Ringgold, 1 Har. & Gill. 11; Brackenridge v. Holland, 2 Blackf. 377.
If no logs were cut upon land owned by the plaintiff, no question could have arisen of confusion of goods. The jury were required by the instructions to find only, that none of those taken by the defendant, were cut on the plaintiff’s land. They were not required to find, that no logs, composing the whole lot of six or seven hundred thousand feet, were cut on the plaintiff’s land.
If Preble wrongfully cut any logs on land owned by the plaintiff, and mixed them with logs cut on his own land, so that they could not be distinguished, a question respecting confusion of goods, might properly have arisen. The admixture might have been of such a character, that the whole lot of logs, including those in the possession of the defendant, might have become the property of the plaintiff. Or it might have been of such a character, the logs being of equal value, that the plaintiff would have been entitled to recover from any one in possession of those logs or of a part of them, such proportion of them, as the logs cut upon his land bore to the whole number.
While the facts reported might not necessarily prove a confusion of goods, if part of the whole lot of logs were cut upon land owned by the plaintiff, they might have been sufficient to raise that question, and to present it for the consideration of the jury.
*244The instructions^ therefore, when considered together, requireing the plaintiff to satisfy the jury, that some of that particular portion of the whole lot of logs, which the defendant had in his possession, were cut upon land owned by the plaintiff, and that no question of confusion of property appeared to arise, were too restrictive. They may have deprived the plaintiff of the right to recover upon proof, that some of the logs composing the whole lot, had been cut upon his land and so mixed with logs cut on land owned by Preble, that they could not be distinguished.
Exceptions sustained, verdict set aside, and new trial granted.