An examination of the evidence in this case shows beyond controversy that -when the defendants moved the plaintiffs’. goods in' question from the place in the highway opposite the- property of, which they had charge, to another place where they left it, they made no claim of ownership over the property nor , right to take.-, .and use the same. It is apparent that the only right they claimed was the right to prevent the plaintiffs from setting up their tent, in. that particular spot opposite the lands and gateway of the- shrine,, and they claimed the right to remove such property from that spot solely through the permission from the owner of the land on which it was then located, and they claimed no more. And' it is-equally* clear that after they had deposited the property in the highway, beyond the boundaries of the shri'ne’s property, they no longer interfered with it, or made any effort to do so. From the time, that it was set down there by the defendants nothing prevented the plaintiffs from taking immediate possession of it.- They were prae- - tically assured by the defendants that the only interference which-, they had to apprehend from them was the prevention of their use - of this property, in the spot in the highway where the- plaintiffs insisted upon using it. In my judgment such, an interference with the property, although it was beyond doubt an asportation of the : goods, was not "a conversion. Such asportation was not done with: any intent to assert any right in the chattels, or to- deny any title . of the owner, nor did it have the effect of destroying the chattels - or altering their nature. It was not, therefore, a conversion-of them, so that the plaintiffs had the right to abandon them entirely to the defendants, to refuse to take them back had the defendants, offered to return them and enable the plaintiffs to treat them as having been purchased by the defendants from the plaintiffs.; (28 Am. & Eng. Ency. of Law [2d ed.], 692; People v. Bank of North America, 75 N. Y. 547, 564; O. J. Gude Co. v. Farley, 25 Misc. Rep. 502, and cases cited.)
The trial court found, as a matter of law, that the -acts■-of • the. defendants constituted-:an: unlawful conversion, of - the- plaintiffs!. *791property, and he rendered a judgment against the defendants for the full value thereof. If such conclusion was an error, the judgment is necessarily wrong and must be reversed. It is true that from the,facts found in the decision of the court such conclusion would apparently be correct; but, upon the whole evidence in the case, other facts appear which show the situation to have been as above stated, and the defendants duly requested the court to include such facts in its decision. We must, therefore, consider such additional facts in determining this case. \
There can be no doubt, I think, but that the conduct of the defendants-was. an unmitigated trespass for which they are liable to the extent‘of the injuries actually done to the plaintiffs’ property, and to such a sum by way of punitive damages for the unwarranted action of the defendants*as a jury might think the case required. But that there was a conversion of the property by the defendants to their own use to such an extent that they became liable to the plaintiffs for the full value of it, I cannot agree.
In my opinion the judgment should be reversed and. a new trial granted, with costs to the appellants to abide the result.
All concurred.
I
Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event.