who had cut walnut logs to be sawed on his own premises above the gorge, lost, by a high rise, 30 unbranded logs, which had been carried down the stream. The contention of plaintiff, Deaderick, is that this unmarked log is more probably one of Wilson's lost logs than one cut by Oulds, and that, as the log was found upon his lands, defendant cannot take the log therefrom, without proving that he himself is the

true owner.

The proof fails to establish the log to be one cut by defendant, Oulds, but it does satisfactorily show that it is the one found by defendant's servants, and lodged in a drift within the mountain's gorge, and set adrift in the stream to be floated to defendant's boom below the gorge.

On these facts can the plaintiff recover? The claim of plaintiff rests upon the proposition that the log is a lost log, and that, being found upon his land, he can hold it against every one but the true owner. This claim is not well founded. This log was lost, and had been lost in all probability for two or more years, when found entangled among the rocks and drifts in the gorge by the servants of defendant. It was then claimed for defendant, and possession taken. This right of possession was not lost by the log subsequently drifting upon the land of plaintiff, and the defendant had a right to take and hold this log against all but the true owner, or one having a superior right of possession to that of the finder of lost property.

It is undoubtedly true that it is not necessary in all cases that the plaintiff in trover or replevin must have an absolute right of property in the subject-matter of the litigation; but it is equally true, that he must have a right of possession relatively superior to that of the defendant. Such a superior right of possession is not shown on the part of the plaintiff in this case. The prior finding and possession of the defendant is sufficient, not only to defeat the contention of the plaintiff, but was a sufficient title to have supported an action of replevin to recover the possession from any but the true owner. 2 Wait, Act. & Def. 234; 6 Wait, Act. & Def. 153; Smith, Lead. Cas. (7th Ed.) 648, and cases cited. Lost property found on the premises of another may be rightfully retained by the finder as against the owner of the premises.

Thus in Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424, the plaintiff, being in the shop of the defendant, picked up a parcel containing bank-notes. The defendant, at the request of the finder, took charge of the notes, to hold for the owner. After three years, no one having claimed them, the defendant refused to deliver them up to the plaintiff. The court held defendant liable in trover for the notes.

So in the case of Hamaker v. Blanchard, 90 Pa. 377, reported 35 Am. Rep. 664, a servant in a hotel found a roll of bank-notes in the public parlor. Upon suggestion of the proprietor of the hotel that they belonged to a certain guest, they were delivered to the master for the guest. Proving not to be the property of the guest, the servant demanded the notes from the master, who refused to return them. It was held that she could recover them from the owner of the premises. To the same effect are the cases of Durfee v. Jones, 23 Am. Rep. 528, and Tancil v. Seaton, 26 Am. Rep. 380.

It is essential, however, in such cases, that the property must be found; that is, it must, at the time when the finder came upon it, have been in such a situation as to clearly indicate that it was lost, and not voluntarily placed by the owner where it was found, by carelessness or forgetfulness. If it was evidently laid where it was found, it then be

comes the duty of the owner of the premises to keep the property for the owner; as in such cases he is treated as a quasi bailee, and he may maintain trover therefor against the finder; as, if a pocket-book is found upon a desk or counter in a store or bank, the presumption is that the owner placed it there and forgot it. 6 Wait, Act. & Def. 153, 154, and cases cited. In Tennessee, where a pocket-book was laid on a counter by the owner, and forgotten, it was held that it was constructively in the possession of the owner, and larteny could be maintained against the owner of the premises who took the book knowing the owner. Lawrence v. State, 1 Humph. 228; Pritchett v. State, 2 Sneed, 288. This log was not intentionally laid or deposited by the owner on the land of plaintiff, and hence he was not a quasi bailee for the owner, and cannot hold against the superior right of defendant growing out of his prior possession and earlier finding of the log. The distinction which undoubtedly exists between the rights of a riparian proprietor to driftwood and other accretions which may drift upon his land, and the finding by a stranger upon the premises of another an article dropped, need not be discussed here; for a riparian proprietor could not detain property stranded upon his bank, as against either the true owner, or one having a superior right of possession by reason of an earlier possession. His honor, the circuit judge, tried this case without the intervention of a jury, and decided in favor of the plaintiff. In his special findings he held that, under the facts as above detailed, plaintiff Deaderick was a special bailee, and as such entitled to hold the log against all but the true owner. In this we think he committed an error of law. The case will be reversed, and judgment rendered in favor of the defendant.

LIVERMORE v. WHITE.

(Supreme Judicial Court of Maine, 1883. 74 Me. 452, 43 Am. Rep. 600.) APPLETON, C. J. This is an action of replevin for certain hides of tanned leather. The plaintiff's only title is as finder of them as lost goods. The verdict being against him, exceptions were duly filed to the rulings of the presiding justice, which have been very elaborately and ably argued.

It is in proof that in 1840, Edward Southwick was then owning and carrying on a large tannery, containing seven hundred and eleven vats of which the vats in question were part; that he sold the tannery to Southwick and Weeks who occupied a portion of the vats, not occupying the outside vats; that Edward Southwick died shortly after the conveyance of his estate; that the same passed to the Vassalboro Manufacturing Company, which erected its mills thereon over twenty years ago; that the defendant is their agent and servant; that while the company were digging to lay a foundation for a brick building in addition to their present erection, the plaintiff, a servant in their employ, discovered the vats and the leather therein, by virtue of which discovery he claims title thereto. It further appeared that these hides were identified as hides placed in the vats by Edward Southwick and omitted to be taken when his vats were emptied.

I. Upon the question of abandonment the jury were instructed that if they should "find that the owners, for any reason satisfactory to themselves intentionally abandoned these hides, expecting that the first

finder, the first explorer or excavator should take possession and enjoy the property and the benefit * * * with the intention of the owner or agent not to resume possession, and not to claim any control or dominion over them thereafter, finally relinquishing all interest in them * * * then these finders under the rules given, would have a right to the possession as against all persons whatsoever," but if they should "find that Edward Southwick, or his agent or * * * owner, whosoever he may have been, of these hides, intentionally, carefully, voluntarily, and in the ordinary course of business, placed them there as his property, and they were accidentally or inadvertently overlooked and forgotten, they remained the property of such owner or the heirs of such owner or of his estate at the present time."

any

This instruction is correct. Abandonment includes both the intention to abandon and the external act by which the intention is carried into effect. Here the act was one of preservation-the proprietor spending labor upon his property thereby to enhance its value. It was an act which excludes the very idea of abandonment.

In McLaughlin v. Waite, 5 Wend. 405, 21 Am. Dec. 232, Chancellor Walworth says: "If chattels are found secreted in the earth or elsewhere, the common law presumes the owner placed them there for safety intending to reclaim them. If the owner cannot be found he is presumed to be dead, and that secret died with him. In such cases, the property belongs to the sovereign of the country as the heir of him who was the owner; but if they are found upon the surface of the earth or in the sea and if no owner appears to claim them, it is presumed that they have been intentionally abandoned by the former proprietor and as such, they are returned into the common mass of things, as in a state of nature. They consequently belong to the first finder or occupant, who thinks fit to appropriate them to his own use." * * Here there was no secreting of the hides; no intentional abandonment and the estate to which the property belongs is known. The only title of the plaintiff is by finding, but under the circumstances, he acquires no right to the property.

* *

II. Nor can this be deemed treasure trove, which is thus defined in Jacob's Dictionary. It is "where money is found hid in the earth, and no man knows to whom it belongs.' Nothing is treasure trove but gold or silver. "It is not treasure trove if the owner can be known." All elements constituting treasure trove are wanting. Here was no hiding. Here was no secrecy. The owner was known. The deposit was not for concealment but in the usual and ordinary mode of business.

*

III. This is not a case of lost goods. The owner is shown. They belong to his estate. The title of finders vanishes when the owner is known. These goods were not lost. The facts negative a loss by the owner. The hides were through carelessness left in the vat. If the fact of their being there was forgotten by the owner, they were none the less his, and though forgotten they were not lost. They remained in the vats subject to his control. In McAvoy v. Medina, 11 Allen, 548, 87 Am. Dec. 733 it was held that placing a pocket-book voluntarily by a customer upon a table in a shop, and accidentally leaving it there. or forgetting to take it, is not to lose it within the sense in which the authorities speak of lost property. "To discover an article voluntarily laid down by the owner in a banking room, and upon a desk provided for such persons having business there, is not the finding of a lost

article," remarks Wells, J., in Kincaid v. Eaton, 98 Mass. 139, 93 Am. Dec. 142. * * *"To lose is not to place away anything carefully and voluntarily in the place you intend and then forget it; it is casually and involuntarily to part from the possession; and the thing is then usually found in a place or under circumstances to prove to the finder the owner's will was not employed in placing it there.”

The instructions upon the controverted questions were correct. Hides in a vat for the purpose of tanning, though not removed when the other vats are cleared, are not to be deemed abandoned or derelict, nor through remaining in the vats for a long period of time through the forgetfulness of their owner or the ignorance of his representative, are they to be considered lost, so that the finder thereby acquires title to them. Nor can the finding be deemed treasure trove, for there was no silver or gold hidden, and no hiding.

Exceptions overruled.

CHAPTER III

TORTS PERTAINING TO PERSONAL PROPERTY

Section

1. Confusion of Goods.

2. Accession of Personal Property.

SECTION 1.-CONFUSION OF GOODS

HALL v. PILLSBURY et al.

(Supreme Court of Minnesota, 1890. 43 Minn. 33, 44 N. W. 673, 7 L. R. A. 529, 19 Am. St. Rep. 209.)

GILFILLAN, C. J. Appeal from an order overruling a demurrer to the complaint. From the complaint it appears, in brief, that the firm of G. W. Ehle & Co. operated and conducted, for the storage of grain, a grain warehouse at Stewart, in this state. Fifteen different owners of grain, plaintiff being one of them, deposited at different times with said Ehle & Co., in said warehouse, for storage, different quantities of wheat, the aggregate amount so deposited being 2,64760 bushels, and upon each of such deposit each depositor received from Ehle & Co. the usual warehouse or elevator receipt for the amount so deposited, with, however, this clause, (unusual, we think) that if, for any reason, it should become necessary to remove such grain, Ehle & Co. reserved the right to deliver the grain from any other warehouse operated by them, etc. As the mere desire on the part of Ehle & Co. to sell the grain so deposited could not be regarded as a reason for removal under this clause, and no reason of necessity for its removal appears, we need not further consider that clause. None of the receipts so issued were redeemed. Ehle & Co., without the knowledge or consent of the receipt holders, sold and shipped to defendants, and they converted to their own use, so much of the wheat so deposited that there was left in the warehouse, to meet the outstanding receipts, amounting to 2,64730, only 1,144 bushels. This latter quantity was then distributed pro rata to the outstanding receipts. All the receipts. other than those received by him have been sold to plaintiff, and he brings the action to recover for a conversion of the wheat so sold and shipped to defendants.

It being a general rule of law that a purchaser of personal property gets ordinarily no better title than his vendor has, it will be necessary to consider what was the right or title of Ehle & Co. in or to the wheat; that is, to consider what are the rights, in respect to grain stored in a general grain warehouse, of the depositor and depositee. This must be determined by the statute regulating such warehouses and deposits, which is found in chapter 124, Gen. St. 1878, §§ 13-20, inclusive.. In several cases we have considered some of the features of that statute, but, although in Leuthold v. Fairchild, 35 Minn. 99, 27 N. W. 503, 28 N. W. 218, we assumed, rather than fully determined, that a warehouseman who, without the consent of