that in addition to the recovery of the value of the ore taken, without a deduction for the cost of removal, the owner is also entitled to recover, in cases where the wrong is palpable, or the infringement of the right accompanied with knowledge or fraud, an amount, as exemplary damages, commensurate with the extent of the wrong committed.1

§ 569. Same- Title may be incidentally raised. — It was held in one of the earlier cases that the title to real estate could be incidentally raised in a transitory action.2 It is a mistake, therefore, to suppose that title to land can

for equitable rule, see In re United Min. Co., L. R. 15 Eq. 46; Powell v. Aiken, 4 Kay & J. 343.

1 Barton Coal Co. v. Cox, 39 Md. 1. And see, for a full exposition of the rule as to damages, Morgan v. Powell, 2 Q. B. 278, and United States v. Magoon, 3 McLean, 171. "Defendant, in 1872, sank a shaft on its own land 333 feet west of the west boundary of its own land, to the depth of 549 feet, and worked its coal bed to and beyond such boundary. Upon defendants filing certain maps required by statutes in aid of ventilation, etc., in 1873, plaintiff learned for the first time that defendant had worked across bounds into his part of a stratum of coal two feet thick, and extracted 610 tons. Plaintiff then demanded this coal, which had long since been sold and disposed of. In trover for the coal so taken it was Held, that the measure of damages was the value of the coal at the mouth of the shaft less the cost of carriage from the breast where broken, which is only another mode of expressing its value as it lay in the run where it had no value as a salable article. 2. That the conversion was complete at the moment of severance. 3. For the expense and trouble of sorting, defendant could not claim to be reimbursed, but for the cost of bringing it to the pit's mouth they should be allowed, because any person purchasing the coal in the pit would have deducted from the price such cost of carriage." McLane County C. Co. v. Long, 81 Ill. 363; M. M. D. 231. "A different rule of damages does not prevail in trespass for breaking and entering a coal mine and carrying away coals, from that which governs in trover for the coals, except where circumstances of aggravation are relied on in trespass. The rule is the same in both forms of action." Id.; M. M. D. 231.

2 Hart v. Vincent. 6 Heisk. 615. See also Hungerford v. Redford, 29 Wis. 347.

not be incidentally tried in an action of replevin. When machinery, or any other fixture, is annexed to and forms a part of a certain tract of land, and the latter is sold without a reservation of such fixture, as the fixture is necessary to constitute the premises, as they purport to be, and in reality, forms a part and parcel of the freehold, if the same is dissevered by the former owner, after a sale of the real estate by himself, the purchaser of the real estate may maintain replevin for the fixture against the person who detached it, and he could recover in such action, although he could only prove his title to the chattel, by showing a title to the premises from which the same was taken.1 So, it is presumed that proof of title and actual possession of a tract of land could be set up as a defense to an action by one who claimed the title to minerals or other produce taken from such land, in order to show that the plaintiff, in appropriating such produce, was nothing but a trespasser, and that the defendant was in possession at the time of the appropriation, and was therefore the real

"Mere asser

1 Morris on Replevin, pp. 107 and 108 and cases cited. tion of title is nothing if same is not in controversy." Green v. Ashland Iron Co., 62 Pa. St. 97. But the owner of land or one out of possession, cannot maintain replevin for ore removed by one in the actual possession, for, as said by Duncan, J., in Brown v. Caldwell: "If it could lie in this case, then replevin would lie by the owner of the soil for coal dug out of a coal mine in England and brought to Pennsylvania, and the title to the soil, in a foreign nation, be tried in this transitory action." Brown v. Caldwell (10 Serg. & Rawle, 114), 12 M. M. R. 679. See also Mather v. Trinity Church (3 S. & R. 509), 14 M. M. R. 324; Harlan v. Harlan, 15 Pa. St. 507; Anderson v. Harper, 34 Ill. 436; Page v. Fowler, 28 Cal. 605. Replevin will not lie for mineral, prior to its severance from the soil, as it is then real estate. Knowlton v. Culver, 2 Pinney (Wis.), 243; 52 Amer. Dec. 156; 12 Mor. Min. Rep. 682. That soil adheres to the mineral replevined does not prevent the action, or change the subjectmatter to real estate, for title may be incidentally raised and in replevin for mineral taken the title to the soil that adheres to the ore is not in issue, but only the mineral itself. Green v. Ashland Iron Co., 62 Pa. St. 97; 12 M. M. R. 692.

owner of the produce.1 If for no other reason, such evidence could be held admissible, if true, on account of operating as a bar to the plaintiff's right of action, and this would certainly be the case where there was no contest of the title to the land. But if it should appear that the plaintiff was in actual possession of the land, under claim of title, at the time of the appropriation of the produce of the soil, the defense of title would not be admissible on the part of the defendant, and especially would this be true if the plaintiff could establish a title to the produce aliunde.

1 Elliott v. Powell, 10 Watts (Pa.), 454; Cobbey on Replevin, § 387. But the fact that one was in possession of land under a mere colorable title, would not avail to defeat a replevin by the true owner of the produce from the land. Harlan v. Harlan, 15 Pa. St. 507; Cobbey on Rep.,

supra.

2 As to how far the question of title to land may be considered in replevin, see Green v. Ashland Iron Co., 62 Pa. St. 97; Mor. Min. Dig. 814.

8 See Morris on Replevin, pp. 106 and 107, and cases cited by author. The court would not permit the defense to enter into a controverted question of title to the realty in this kind of an action. Cobbey on Replevin, § 378, p. 195, citing Page v. Fowler, 28 Cal. 608; Harlan v. Harlan, supra; Halleck v. Nifer, 16 Cal. 575. But if there is no adverse possession under claim of title the owner can always maintain replevin. Brewer v. Fleming, 51 Penn. St. 111; Sands v. Peiffer, 10 Cal. 258; Anderson v. Hoper, 34 Ill. 436, all cited in Cobbey on Rep., § 378, p. 195. "Replevin will not lie by one not in the actual exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious occupation and possession thereof, claiming the right, for the recovery of slates taken out of a quarry on the land." Brown v. Caldwell, 10 S. & R. 114; M. M. D. 314. "Title to land cannot be tried, but may incidentally arise and be heard in a transitory action. The mere assertion of title is nothing if the title be not in fact in controversy; but when it appears that there is necessitated a trial of title to determine the right to the chattel, replevin will not lie." Green v. Ashland Iron Co., 62 Pa. St. 97; M. M. D. 314. A licensor may replevin ore mined, where the licensee is to mine it for a certain per cent but asserts title to the ore. Empire Zinc Co. v. Freeman, 75 Mo. App. 524.

§ 570. Where property has been confused. - All the authorities agree that where a man willfully and wrongfully unites his own property with that of another, so as to render them undistinguishable, he will not be entitled to his proportion, or any part of the property, unless the property of the two owners is the same in quality and value.1 For instance, if one purposely, or by negligence, commingles mineral of an adjoining landowner with mineral of another kind, belonging to himself, so that a separation of the two becomes practically impossible, the law permits the owner of the mineral so commingled in retaking it, to take that which is inseparably connected with it, since in no other way could he reclaim his own property. And the owner of such mineral could maintain the action of replevin for the recovery of his property, if the same could be distinguished, and if it could not, for the whole of the property that had been wrongfully intermingled. And so the action could be maintained for oil of the plaintiff wrongfully taken from his tank and mixed with oil of the defendant in another tank.4 But as the infliction of civil penalties, in any form, is odious to the law, when the property commingled is of substantially the same quality and value, the

In replevin of ore, plaintiff must generally allege title to the land sufficient to show a general or special ownership in the ore taken. Mont. Min. Co. v. St. Louis Min. Co., 102 Fed. Rep. 430.

1 Cobbey on Replevin, § 399, p. 208, and cases cited; Williamson v. Gottschalk, 1 Mo. App. 425; Morris on Replevin, pp. 100, 101. If the property can be separated without loss to either party this will of course be done.

2 Siebert v. McHenry, 6 Watts (Pa.), 301; Eldred v. The Oconto Co., 33 Wis. 133; The "Idaho" 93 U. S. 575; Thorn v. Colten, 27 Iowa, 427; Lupton v. White et al., 15 Ves. Jr. 432; Mor. Min. Dig. 33.

3 Cooley on Torts, pp. 56 and 57, and cases cited; Morris on Replevin, pp. 100 and 101. See, for case where the whole lot of commingled ore was awarded to innocent owner, Lupton v. White et al., 15 Ves. Jr. 432. 4 Wilkinson v. Stewart, 5 Weekly Notes, p. 70; Morris on Rep., p.

innocent owner would not be permitted to take the whole of the property wrongfully mixed together, for to give him an equal quantity with the property which he owned, together with damages for any injury he may have received in being deprived of the use of such property, would be to do him substantial justice.1 And indeed this rule has been held to obtain in cases where the property commingled was not the same in all respects; it having been adjudged sufficient if it was practically the same, so that the separation of that which is equivalent in quantity and measure will give to the party, whose property has been wrongfully taken, a just or substantial equivalent in kind and value."? And this would seem to be the more equitable doctrine.

The right of a

§ 571. What possession necessary. plaintiff in replevin to recover depends on his own right to

1 And Mr. Cobbey states this to be the true rule, where the separation can be made without loss to either owner. Cobbey on Rep., § 399, p. 208.

2 Cooley on Torts, p. 58, and authorities. Cobbey on Rep., § 400, and cases, p. 209, cited by author. But if property has been changed it can be retaken in whatever shape it has assumed, being described as it exists at the time of the commencement of the suit. Wingate v. Smith, 20 Maine, 287; Betts v. Lee, 5 Johns. 348; Snyder v. Vaux, 2 R. 427; Brown v. Sax, 7 Cowen, 95. Where plaintiff's oil has been commingled with other like oil of defendant, by a third party, the plaintiff can recover if the quality of the oil is the same. Wilkinson v. Stewart, 13 M. M. R. 1; 85 Pa. St. 255. "Two persons leased land for the purpose of boring salt wells and manufacturing salt, rendering a royalty of every twelfth barrel manufactured. After a time oil rose with the salt water, which, though at first suffered to run to waste, was afterwards collected and sold. In trover, therefore, it was held: 1. That the lease was in effect a grant of the crude salt in the land for a twelfth part of the manufactured article; 2. That as the salt only was granted, the lessor retained all the rest of the contents of the land, including the oil, as exclusively after the lease as before; 3. That as the lessees could not raise the brine without the petroleum, the severance of the oil as