#### Dwight B. Baker *et al.,*Resp’ts, *v.*Charles Hart *et al.,*App’lts.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Lease—What interest under, wild give right of action against TRESPASSER.

The plaintiffs, who are *lessees*of certain lands under a lease which gives them the exclusive right to the demised premises, and the exclusive right to quarry and remove stone therefrom for a term of years, bring action against defendant for the recovery of a quantity of stone removed from the premises. The defendants contend that the instrument under which plaintiffs hold gave them no title to the stone, except the right to what they took out themselves. *Held,*that the defendants were trespassers and wrongdoers; that plaintiffs’ only source of profit being their interest in all the stones in the quarry, such interest gave them a right of action against defendants for the conversion in question.

3. Same—Measure of damages for conversion of property.

*Held,*that the rule of damages deduced from the principles of law is, that as the owner may recover his property in its improved condition specifically, he may, therefore, when driven to his action for damages, re- . cover its increased value.

3. Same—Rule1 applied to wrongdoer.

And this rule applies to a wrongdoer who can acquire no property in the goods of mother by any change wrought in them by his labor or skill, provided that the improved' article was made from the original material.

• *Johnson &*Lamb, for app’lfs; *Alexander B. Butts.(C. P. Hoffman,*of counsel), for resp’ts.

Dykman, J.

The plaintiffs are lessees of certain lands in the county of Rockland, under a lease which gives them the exclusive right to the demised premises and the sole and exclusive right to quarry and remove stone therefrom during the term of ten years.

The defendants are lessees of an adjoining lot from the same lessor, and they entered upon the quarry of the plaintiffs and took out a quantity of stone and cut them and took them to New York, and this action was brought for the recovery of the value of the stones so taken.

The cause was tried at the circuit, and a verdict was rendered iu favor of the plaintiff, and the defendants have appealed from the judgment entered upon the verdict, and from the order denying the motion for a. new trial upon the minutes of the court.

Upon the trial at the circuit the defendants contended against the right of the plaintiffs to recover damages for the conversion of the stone in question, because the instrument under which they held the quarry conveyed to them *363no title to stone which they did not take out, and only gave them the right to stone which they took out themselves, and a motion was made in the early stage of the trial to dismiss the complaint on that ground.

That motion was denied, and we think the ruling was not erroneous.

The defendants were trespassers and wrong doers, and, as such, appropriated the stone to which the plaintiffs had a right. They had an interest in all the stone in their quarry, and that was their only source of profit under their lease, and such interest gave them a right of action for the wrongful conversion of the stone in question by the defendants.

The principal objection of the appellants, however, is lodged against the measure of damages adopted by the trial court. The defendants insisted that the plaintiffs could only recover the value of the stone in the quarry, while the plaintiffs were permitted to give evidence of their value after they were cut by the defendants, and transported to their place of destination.

The charge is not printed, but the question is sufficiently presented by exceptions taken during the trial, and opens a very interesting subject.

The liability incurred by the wrongful conversion of personal property, and its change in form or value by the wrong doer, is well settled under the common law as it was under the civil law. So long as the property retains its original form or substance, it belongs to the original owner without reference to its improvement or the enhanced value imparted to it by the person guilty of the conversion. Our law, like the Roman law, treats those who expend money or labor upon property wrongfully taken by them as volunteer servants of the owner.

So far the authorities, both English and American, seem to be harmonious and in accord with the rule of the civil law. Year Books, 5 Hen., vi, fol. 15; 2 Bl. Com. 404; 5 Kent’s Com., 363 ; *Betts*v. *Lee,*5 John, 348; *Baker*v. Wheeler, 8 Wend., 505; *Silsbury*v. *McCoon,*3 N. Y., 379; *Guekenheimer*v. *Angevine,*81 id., 397, and the rule of damages deduced from the principles of law is this, as the owner may recover his property in its improved condition speeifioally, he may therefore, when driven to his action for damages, recover its increased value.

There has been some disagreement in our. courts in cases of this character respecting the rule to be adopted when the identity of the property has been destroyed by its conversion into a different species, as where wine is made from another’s grapes. But even in such cases, and in respect to such property, the only exception to the general rule *364with us is in favor' of an innocent purchaser or holder, and there is no distinction in favor of a wrongdoer. He can acquire no property in the goods of another by any change wrought in them by his labor or skill, provided that the improved article was made from the original material. *Silsbury*v. *McCoon, 3 N.*Y., 379.

It follows that the rule of damages adopted at the circuit was correct, and as we find no errors, the judgment and order denying the motion for the new trial should be affirmed with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.