concurring specially:
I do not see how the Court can conclude that Washburn-Wilson Seed Co. v. Alexie, 54 Idaho 727, 35 P.2d 990 (1934), is controlling without overruling Kent v. Campbell, 80 Idaho 57, 324 P.2d 398 (1958). The theory in Kent was that the bailor seed company, by its bailment contract, had retained title to the beans that it provided to the bailee-farmer and to the crops produced from the beans as a result of the bailee’s farming efforts. Under this theory, no agreement between the bailee and his landlord for division of the crop grown could in any way take away the bailor-seed company’s title. Unless the Kent reasoning is modified to accommodate competing claims there is no way that a sharecrop landlord can obtain title to a crop that is the subject of a bailment agreement such as that involved in this case. What the majority has done here is to create such a policy exception to the Kent rule in favor of landlords (and perhaps in subsequent litigation other lien claimants) without actually expressly saying so.
In my view, the bailment theory accepted in Kent should be rejected by this Court, not merely sidestepped as we have done in this case. I agree with Justice Bistline that it is stretching the concept of bailment beyond its breaking point to assert that one may deliver beans to another to plant them and harvest the crop and still retain title to the crop produced by the planting.
When new value is added to the personal property of one person by the labors of another, the law of accession determines which party has title to the product of the materials and labor. See R. Brown, The Law of Personal Property § 6.1 (3d ed. W. Raushenbush 1975). “According to the famous Digest of the Emperor Justinian, ‘If the new object can be reduced to the materials of which it was made, it belongs to the owner of the material; if not, it belongs to the person who made it.’ ” Id. § 6.2 at 50. More recently, courts have looked not only at changes in the character of the property, but also at the proportionate contributions of labor and material to the value of the resultant product. See id. at 51.
Applying these tests to the bailment of seeds to a farmer, it is apparent that the seed company should not retain title to the resultant crop. The crop cannot be reduced to the same seeds from which it grew, and it will ordinarily be worth infinitely more than were the seeds. The farmer’s land, water, fertilizer and labor produces a product so transformed and so enhanced that title to the resultant crop should belong to the farmer. The seed company, of course, would retain contractual rights against the farmer. However, these rights do not give the seed company any claim to the crop itself, particularly as against the rights of a sharecrop landlord, whose proprietary interest would arise concurrently with that of his farmer-tenant.
BISTLINE, J., concurs.