(dissenting). ' This is an action of replevin, as contended by appellant, but an action of trespass or trover, as contended by appellee, brought by appellant against appellee for the recovery of a lot of cross-ties, or the value thereof, in the one case, and damages for the conversion thereof, in the *íóther case. As the names of actions amount to nothing under the civil code, we have necessarily to resort to the language and prayer contained in the pleadings, and the intention of the plaintiff as therein shown, in order to determine what is the real object of his suit. In this case there is the form and prayer of a replevin suit, but the service of the writ, restricted to the office of a summons merely, at the instance of the plaintiff, indicates that it was not intended by him as a possessory action, but one for money damages only. Where a complaint is for replevin, and the property is not taken by the officer because it cannot be found, there is no reason to presume that the plaintiff intends to prosecute his action othex’wise than by replevin ; but whexx the record shows that he prosecutes his action voluntarily otherwise than in replevin, the case is, or may be, qxxite differexxt.
What object could the plaintiff have in dix'ecting the sheriff to make no seizures of the property mentioxxed in the writ in his haxxds, uxxless he ixxtends merely to -recover the damages he has suffered, or uxxless it be that he is afraid of his ease, and declines to become responsible for the seizure and det'eixtion of the specific px’operty named in the writ? He certainly has the right to avoid this liability, bxxt he canxxot wait until judgment is pronouxxced, and then demand a seizure, and thus make sure of his ease, because the law does not tolerate such a lying-in-wait. The statxxte on the subject (section 6387 of Sand. & H. Dig.) reads thus: “The plaintiff in an action to recover the posséssion of specific personal property, may, at the commencement of,the action, or at. any time before judgment, claim the immediáté delivery of the property, as herein provided.” And section 6396, ib., readsn “An ox’der may at any time before judgment, be directed to any other county for the delivexy of the property claimed.”
When the court comes to render judgment, it does not go about it to inform the successful party beforehand of the nature axxd scope of that judgmexxt, but x’enders it on the record and the evidence before it, regax’dless of the effect it may have xxpon the one or the other of the parties. The court, in a case like this, will dispose of the property shown to be in the haxxds of the sheriff, or such as has been delivered by him to the one or the other of the parties; axxd this showing is xnade by his return, and that oxxly. In this case the return showed that there was no property in the hands of the sheriff, and that there had been noxxe by virtue of the writ. No judgment of seizure or caption could therefore be rendered, for the writ in the case had served its purpose, and the judgment cut off all aliases. “If the owner of standing timber cut into logs by an innocent trespasser sees fit to bring trespass or trover for its value, instead of reclaiming his property, he thereby elects to receive a just compensation for said timber.” Gates v. Rifle Boom Co., 70 Mich. 309.
Aside from the effect of the pleadings, proceedings and judgment in the ease, the right of recovery in any form of action is involved, and to discuss this question it is necessary to recall the facts in evidence. One James M. Smith, of Dayton, Ohio, became the purchaser and owner of the forty-acre tract of land from which the cr.oss-ties in controversy were cut, by purchase from one Hathway, who lived at the time of ¿the purchase from him in Pegua, in the same state. The purchase was by deed dated November 4, 1894, and filed for record in the recorder’s office of Green county, this state, December 19, 1894. Appellant, Eaton, purchased this land from Smith by deed dated December 3, 1894, and recorded in said office December 26, 1894. This deed from Smith to Eaton was defectively acknowledged, in this: that the certificate of acknowledgment did not contain the word “consideration,” required by statute. The omission of this word made it necessary to establish the deed by extraneous proof, before it could be used as such; and not only so, but it was, in that shape, incapable of being put on record for the purposes of record preservation and notice to the world. Little v. Dodge, 32 Ark. 453; Shryock v. Cannon, 39 Ark. 434; Jacoway v. Gault, 20 Ark. 190; Johnson v. Godden, 33 Ark. 600; Griesler v. McKennon, 44 Ark. 517; Wright v. Graham, 42 Ark. 140. It is, moreover, in proof that the defendant never had any actual notice of Eaton’s claim or ownership of the land from which the ties were cut until sometime after he had cut the same and hauled them away. In the progress of the trial, when the defendant exhibited the timber contract from Smith to Rogers, under which he claimed by purchase from Rogers, its execution was put in issue by the plaintiff, and, the subscribing witnesses not being present, and not having proved the same, the court held, in effect, that the contract was not proved, notwithstanding the testimony to that effect by other witnesses present, and that therefore the same was not admissible in evidence. Thus the defendant failed to prove his title to the timber, but this exclusion of his contract did not exclude it for other purposes than that named in the objections to it — evidence of title. It still could be used to show the animus of defendant’s possession, and the extent of it, just as could be shown by a void deed.
The controversy then narrows down to right of possession. Each one claimed under a defective paper title — defective as against the other — and the burden was on the plaintiff to show the superior right to the possession of the timber. The defendant’s purchase was first in point of time, and his possession was exclusive and uninterrupted for the time he had occasion to hold it; and he had during the time neither actual nor constructive notice of plaintiff’s claim or title. Should not the plaintiff have taken some notice of his occupancy? Had he done so, and made proper inquiry, he would have received actual notice of defendant’s claim, which antedated his own. Failing in this, did the plaintiff establish his right to the cross-ties, and show his right in replevin? Much difficulty arises in cases where an innocent trespassser (as in this case) has cut timber from another’s land and manufactured it into another and more valuable form. When the owner attempts to replevy bis property in the new form, he is confronted with several difficulties. First, the difficulty of identification; and, that being obviated or overcome, then arises the question of value to fix the amount of the alternative judgment.
Prima facie, when one claiming to be the real owner and entitled to the possession is entitled, not only to the specific property replevied, but also to its value, in case the property cannot be delivered to him, and in the case of an appropriation by a wilful trespasser, the alternative- judgment should be for. the value of the property in the form most advantageous to the owners. But in the case of timber taken by an innocent trespasser the equitable doctrine now very generally prevails to the effect that while the owner is entitled to his timber, and the true value of it in the alternative, yet the innocent trespasser is entitled to a reduction on the alternative judgment to the extent of the value of his labor bestowed upon the property to put it in the new shape, and thereby increase its value. This rule naturally leaves an option to the defendant to restore the property to the plaintiff, or pay the equitable damages to him. There is no doubt as to the general application of this equitable rule, the only question in any case being whether or not the facts justify its application; and, if the facts in this case call for the application of the rule, the judgment should be affirmed; otherwise not.
In Wetherbee v. Green, 22 Mich. 320, Judge Cooley, in delivering the opinion of the court, said: “No test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels by accession, unless it keeps in view the circumstances of relative values. "When we bear in mind the fact that what the law aims at is the accomplishment of substantial equity, we shall readily perceive that the fact of the value of the materials having been increased a hundred fold is of more importance in the adjustment than any chemical change or mechanical transformation, which, however radical, neither is expensive to the party making it, nor adds materially to the value. There may be complete changes with so little improvement in value that there could be no hardship in giving the owner of the original materials the improved article; but in the present case, where the defendant’s labor, if he shall succeed in sustaining his offer of testimony, will appear to have given the timber in its present condition nearly all its value, all the grounds of equity exist which influence the courts in recognizing a change of title under any circumstances.” That was a case where timber of the value of twenty-five dollars had been converted into hoops by an innocent trespasser, and the hoops were of the value of seven hundred dollars, denoting an increase of twenty-eight fold; and upon the facts the court said: “We are of opinion that the court erred in rejecting the testimony offered. The defendant, we think, had a right to show that he had manufactured the hoops in good faith, and in the belief that he had the proper authority to do so; and if he should succeed in making that showing, he was entitled to have the jury instructed that the title to the timber was changed by a substantial change of identity, and that the remedy of the plaintiff was an action to recover damages for the unintentional trespass.”
In that decision Judge Cooley emphasizes two essential things to be established by the defendant claiming the benefits of the equity rule: First, the defendant must show that he is in fact an innocent trespasser, if trespasser at all; second, he must show that the timber was changed, .by a substantial change of identity, and, therefore, that the remedy of the plaintiff is an action for damages for the unintentional trespass. The court in that case also plainly says that much depends upon the degree of increase of value by the defendant’s labor, as to whether he will be entitled to the equity under the rule or not. In other words, that a great ratio of increase might entitle him to the relief, while a less ratio of increase in the value of the property might fail to insure him the relief sought. In the one case, the increase would require the plaintiff to rely upon trespass or trover as his remefiy, while the other would leave him to pursue his remedy for the possession of the property specifically, as in replevin. This certainly does not leave the matter at the option of the plaintiff. While the court in that case was in the main correct, yet there does not appear to be any very sound reason in making the defendant’s equitable right dependent upon the degree of increase in value he has given to the property; for, if the increase is material, his right attaches, and the merfe degree of the increase is a circumstance more or less important in view of the financial condition of the defendant, as well as in respect to the benefit conferred upon the plaintiff by the defendant’s labor, and in changing the condition of the property. Sedgwick on Damages defines, the rule thus: “If the property has been altered and increased in value, the rule would again depend on the character of the conversion. If that were wilful, then the value of the article-so increased would be the rule. But that should never be-where the act was Iona ficle; and in such ease the true rule would be to allow the defendant for whatever value his labor had actually conferred upon the property.” The increase in value being material, it seems to be the right of the innocent trespasser to have the benefit of it, in the adjustment of the equities in the cases, without other conditions.
The supreme court of Michigan seems to be in conflict with itself on the subject, for in the more recent case of Gates v. Rifle Boom Co., 70 Mich. 309, we find this language: “The owner of standing timber is not only entitled to tjie timber, but he has a right to it as it is, and to keep it uncut if he so desires. No man, however innocently he may do it, can go upon his land and convert the standing trees into logs, and charge him for the labor thus expended against his will, and perhaps his real benefit. He may prefer to have the timber to stand, and, if left standing a few years, it may bring him an immense profit. There is no injustice in holding that the trespasser must lose the labor he has expended in converting another’s trees into logs. Such trespasses, though casual and not wilful, are ordinarily, as was the trespass in this case, the result of negligence upon the part of the trespasser, and there is no good reason why he should be recompensed for labor and expenses incurred in the trespass when it might have been avoided by proper diligence. The owner has a right to reclaim his logs, but, if he sees fit to bring an action of trespass or trover, instead of regaining his property, he voluntarily puts himself within the rule of damages prevailing in such actions, and thereby elects to receive only a just and fair compensation for his property as it was before the trespasser intermeddled with it.” This leaves the matter at the option of the plaintiff, whether he will adopt one action or the other. The conflicting character of that decision is somewhat destroyed, it is true, by the statement that the trespasser, though not a willful trespasser, was yet a negligent one, and in so far not an innocent one, such as entitled him under the rule we are now considering.
But, assuming that the court was discussing the case as coming under the equitable rule, the decision makes the right of the defendant altogether subject to the option of the plaintiff, whether he chooses to bring trespass or trover, in which the defendant’s equities may be enforced, or replevin strictly, in which his equities will be ignored.
I think the rule laid down by Sedgwick is the correct rule, and that which expressed the reason of it from the beginning; and in trying to give other reasons for it, and assigning outside conditions upon which it will be enforced, courts have only succeeded in confusing the subject.
For reasons good as to each of the grounds of contention, I think the judgment should be affirmed.