The plaintiff’s complaint is in the nature of a declaration for trespass in the entry by the defendant upon her land after being forbidden, and cutting, carrying away and converting to his own use valuable timber that was growing thereon, to her damage $500. The logs after being severed were transported to Newbern in two lots, one of which lots were seized by plaintiff after reaching that city, where it was much more valuable than at the stump, and was sold by her for the sum of $112. The other lot was converted into boards and sold by the defendant. The defendant, for a second defence, sets up by way of counter-claim, the seizure of the logs by the plaintiff, and though the counter-claim may be a defective statement of the defendant’s cause of action, in that it fails to aver an unlawful taking, the defect is cured, if the counter-claim can be maintained at all, by the reply, which, by way of aider, raises the question of the rightfulness of the seizure.
The well established rule is that in such cases the injured party is entitled to recover of the trespasser the value of the timber where it was first severed from the land, and became a chattel (Bennett v. Thompson, 13 Ired., 146), together with adequate damage for any injury done to the land in removing it therefrom. As long as the timber taken was not *89changed into a different species, as by sawing into boards, the owner'of the land retained her right of property in the specific logs as fully as when by severance it became her chattel instead of a part of the realty belonging to her. Potter v. Madre, 74 N. C., 36. The value of the material taken indicates the extent of the loss, where there are no circumstances of aggravation or wilfulness shown, and is the usual measure of damages. Where the trespasser has converted the property taken into a different species, under the rule of the civil law which we have adopted, the article in its altered state cannot be recovered, but only damages for the wrongful taking and conversion, when the change in its form is “ made by one who is acting in good faith and under an honest belief that the title was in him.”
In Potter v. Madre, supra, Rodman, J., delivering the opinion of the Court, says: “ The principle of equity (applied in that case) is supported by the analogy of the rule established in this State by the decisions which hold that a vendee of land by a parol contract of sale, who takes possession and makes improvements, and is afterwards ejected by the vendor, may recover the value of his improvements. Albea v. Griffin, 2 Dev. & Bat. Eq., 9. So if one who has purchased land from another, not having title, enters and improves, believing his title good, and is ejected by the rightful owner, he is entitled to compensation. In both cases one who is morally innocent has confused his property with that of another, and he is held entitled to separate it in the only way it can be done, viz., by being allowed the value of his improvements in the raw material.” The Judge laid down correctly the rule as to the damage that the plaintiff was entitled to recover of the defendant for the original trespass the value of the logs when severed at the stump, and adequate damage for injury done to the land in removing them. Potter v. Madre, supra; 5 Am. & Eng. Enc., page 36; Ross v. *90 Scott, 15 Lea (Tenn.), 479. The character of the logs had not been changed by cutting and transporting to Newbern, but the value had probably been greatly enhanced. The approved rule, where the plaintiff is asking damage for trespass, seems to be that the owner is entitled to recover the value of the logs when and'where they were severed and without abatement for the cost of severance. Coal Co. v. McMillan, 49 Md., 549. But if he prefers to follow and claim the timber removed, he is entitled to do so as long as the species remains unchanged. ' The plaintiff was entitled to recover in a claim and delivery proceeding the logs that she seems to have acquired peaceful possession of without action. Was the defendant entitled by way of recoupment to the benefit of the enhanced value imparted to the property by transporting it to market ? Had they been sawed up in planks and used to construct a boat, the plaintiff would not have been entitled to recover the boat or the material used in its construction. But if the plaintiff had then unlawfully seized and lost or destroyed the boat, and the defendant had been thereby driven to an action to recover compensation for his loss, he might have recovered the value of the boat, together with the damage, if any done, to his land in removing it therefrom, but the present plaintiff would have been entitled to deduct, by way of counter-claim, the value of the timber which was manufactured into the boat just after it was felled and converted into a chattel.” Potter v. Madre, supra. It seems to have been conceded that the defendant cut and carried away the logs under the honest but mistaken belief that the land upon which they were growing was his own. Where a trespasser acts in good faith under a claim of right in removing timber, though he may not be allowed compensation for the cost of converting the tree into a chattel, may he not recoup, in analogy to the equitable doctrine of better-ments, for additional value imparted to the property after its conversion into a chattel and before it is changed into a dif*91ferent species ? The Judge below in allowing the defendant, by way of recoupment, the benefit of the enhanced value imparted to the logs by removal from the stump to the New-bern market, seems to have acted upon the idea that the defendant, by reason of his good faith, was entitled to the benefit of the improvement in value imparted by his labor and expense. In Ross v. Scott, supra, where it appeared that the defendant had entered upon land to mine for coal, and under the honest but erroneous belief that he was the owner had built houses thereon, it was held that the plaintiff might recover the cost of the coal in situ, subject to reduction by an allowance for permanent improvements put upon the land. See, also, In re United, etc., Co., 15 L. R., ch. 46; Hilton v. Ward, 34 Ib., 432; Forsyth v. Wells, 41 Pa. St., 291. The weight of authority, it must be conceded, sustains the rule i that where the action is brought for damages for logs cut and removed in the honest belief on the part of the trespasser that he had title to them, the measure of damages is the value in the woods from which they were taken, with the amount of injury incident to removal, not at the mill where j they were carried to be sawed. Tilden v. Johnson, 52 Vt., 628 (36 Am. Rep., 769, and note 770); Hendre v. Young, 55 Pa. St., 176; Hill v. Canfield, 56 lb., 434; Moody v. Whitney, 38 Me., 174; Cushing v. Longfellow, 26 Me., 306; Galler v. Fett, 30 Col., 462; Foote v. Merrill, 54 N. H., 496; Railway Co. v. Hutchings, 32 Ohio St., 571. In the absence of any evidence that would justify the assessment of vindictive damages, there is only one exception to the rule as we have stated it, and that is where the -trees destroyed are not the ordinary timber of the forest, but are peculiarly valuable for. ornament or as shade trees.
It being settled in this State that the right to the specific chattel, which vests on severance from the land in the owner of the soil, remains in him till the species is changed, we are constrained to go further, though it may sometimes sub*92ject a mistaken trespasser to hardship, and hold that the true owner is entitled to regain possession of a log cut and removed from his land either by recapture or by any other remedy provided by law, whatever additional value may have been imparted to it by transporting it to a better market, or by any improvements in its condition short of an actual alteration of species. In Wymouth v. Railroad, 17 Wis., 550, the Court say: “ In determining the question of recaption the law must either allow the owner to retake the property, or it must hold that he has lost his right by the wrongful act of another. If retaken at all it must be taken as it is found, though enhanced in value by the trespasser. It cannot be returned to its original condition. The law therefore i being obliged to say either that the wrong-doer shall lose his labor or the owner shall lose the right to take the property wherever he may find it, very properly decides in favor of the latter. But where the owner voluntarily waives the right to reclaim the property itself and sues for damages, the difficulty of separating the enhanced value from the original value no longer exists. It is then entirely practicable to give the owner the entire value that was taken from him, which it seems that natural justice requires, without adding to it such value as the property may have afterwards acquired from the labor of the defendant. In the case of recaption the law does not allow it, because it is absolute justice that the original owner should have the additional value. But where the wrong-doer has by his own act created a state of facts, when either he or the owner must lose, then the law says the wrong-doer shall lose.” 26 Am. Rep., 529, note. When, therefore, the plaintiff recaptured the one lot of logs that had been enhanced in value by transportation from the stump to the city market, she but exercised the right, given her by law, to peacefully regain possession of her own chattels wherever found. She was guilty of no infringement of the rights of the defendant for which an action would lie.
*93It is familiar learning that a defendant can only maintain successfully a counter-claim when it is of such a nature that he could recover upon it in a separate suit brought against the plaintiff. The defendant could not recover therefore either in a distinct action for the taking of the logs or by way of counter-claim. When the plaintiff recaptured the! logs she was guilty of no wrong, and the question of title to the property so rightfully taken was eliminated from all' possible future controversy. Her remedy by act of the law remained as to so many of the logs as she had not regained possession of by her own act. After she had recaptured one lot, the property in them in their altered state and at the new situs revested in' her with the absolute jus disponendi, as in the case of her other personal property. Nothing remained to be adjusted in the Courts except her claim for damages for the taking of the other lot and the injury to the land, if any, incident to the removal of both lots. It was error therefore to instruct the jury that the enhanced value imparted by removal to the one lot of logs' might be allowed the defendant as a counter-claim, so as 'to set off the damages assessed for injury to the land and for the value at the stump of the other lot, and the plaintiff is entitled to a new trial.
New Trial.