dominus vindicare non potest; sed ad exhiben- (3) Writing upon another's material. Sed et id quod in charta mea scribitur aut in tabula pingitur statim meum fit, licet de pictura quidam contra senserint propter pretium picturae : sed necesse est ei rei cedere id, quod sine illa esse non potest.-Ibid. § 3.2 (4) Painting on another's table or canvas; but this case, upon which there was controversy amongst the Roman jurists, is better treated under the aspect of specification." Si quis in aliena tabula pinxerit, quidam putant tabulam picturae cedere, aliis videtur 1 Whatever is united with something else, or is added as an appurtenance to it, the owner cannot reclaim as his property so long as it is annexed to it, but he can take proceedings for delivery, that a separation be made and the thing then reclaimed; of course with the exception of what Cass. writes as to welding. For he says, if an arm have by welding been fixed to a statue, it is extinguished by union with the larger part, and that what has once become the property of another, even if again broken off from it, cannot be restored to its original owner. That it is not the same in respect of what has been soldered with lead, because soldering with the same material effects a combination, but that lead-soldering does not have the same effect. 2 That too which is written on my paper or painted upon my tablet straightway becomes mine, although some have thought the contrary in respect of painting because of its value; but it is necessary that it should follow the thing, because it cannot exist without it. BOOK III. Pt. I. Ch. I. picturam, qualiscumque sit, tabulae cedere: sed nobis videtur melius esse, tabulam picturae cedere: ridiculum est enim, picturam Apellis vel Parrhasii in accessionem vilissimae tabulae cedere.$ 34, I. h. t.1 A claim for damage is possessed by the person deprived of his property only when the combination has been effected by a third person, or in case it have been effected by himself, yet by mistake. This is made available in different ways, according as the loser or the gainer is in possession of the thing. If the gainer have undertaken the combination mala fide, there is a Cf. §§ 90, 137. ground also for an 'actio furti.'" In omnibus igitur istis, in quibus mea res per praevalentiam alienam rem trahit meamque efficit, si eam rem vindicem, per exceptionem doli mali cogar pretium eius quod accesserit dare.-In omnibus his casibus, in quibus neque ad exhibendum neque in rem locum habet, in factum actio necessaria est.-Cit. 1. 23, §§ 4-5. Lex XII tabularum neque solvere permittit tignum furtivum aedibus vel vineis iunctum neque vindicare; quod providenter lex effecit, ne vel aedificia sub hoc praetextu diruantur, vel vinearum cultura turbetur. Sed in eum qui convictus est iunxisse, in duplum dat actionem.-Tigui autem appellatione continetur omnis materia, ex If any one have painted upon a tablet owned by another, some think that the tablet belongs to the painting, others consider that the painting, be it what it may, belongs to the tablet ; but the better view in our judgment is that the tablet belongs to the painting, for it is ridiculous that a painting of Apelles or Parrhasius should belong as accessory to the commonest tablet. "In all those cases, however, in which my article by overweight carries with it an article owned by another, and renders it my property, if I claim such thing as my property, I am by a plea of fraud obliged to pay over the accrued value.-In all cases in which neither proceedings ad exhibendum' nor those in rem are to be had, an action in factum is necessary. qua aedificium constet, vineaeque necessaria.— 'Confusio' and 'commixtio.' (1) By casual, indivisible and substantial intermixture of quantities of the same or a different kind or class, and belonging to different owners, there arises a joint ownership of the whole." Si duorum materiae ex voluntate dominorum confusae sint, totum id corpus, quod ex confusione fit, utriusque commune est, veluti si qui vina sua confuderint aut massas argenti vel auri conflaverint; . . . quodsi fortuitu et non voluntate dominorum confusae fuerint vel diversae materiae vel quae eiusdem generis sunt, idem iuris esse placuit. Quodsi frumentum Titii tuo frumento mixtum fuerit, si quidem ex voluntatc vestra, commune erit, quia singula corpora i.e. grana, quae cuiusque propria fuerunt, ex consensu vestro communicata sunt; quodsi casu id mixtum fuerit, vel Titius id miscuerit sine voluntate tua, non videtur commune esse, quia singula corpora in sua substantia durant.-§§ 27-8, I. h. t.2 1 The Law of the Twelve Tables neither allows the detaching of a beam that has been stolen and built into a house or a vineyard-trellis, nor a claim thereto by proprietary action. The statute did so advisedly, in order that neither should buildings be demolished under this pretext nor the cultivation of vines be destroyed. But against him who has been convicted of building such in, it gives an action for double the amount.-Now under the designation 'beam' is included all timber of which a building may consist, and necessary to a vineyard. If materials belonging to two persons have been mixed together by the owners, the whole body that comes of the mixture is common property of both; for example, if two persons have mixed their wines or have melted together masses of silver or gold; . . . but if the materials-whether of like kind or diverse-have been mixed by accident and not by the intention of the owners, the like rule has obtained acceptance. § But if Titius' corn have been mingled with yours, it is your common property, if it have happened by your intention; ... BOOK III. Pt. I. Ch. 1. a Cf. Blackstone, ii. p. 405 (Steph. ii. 23). BOOK III. Pt. 1. Ch. I. @ § 73. Ulp.: Pomponius scribit, si quid quod eiusdem naturae est, ita confusum est atque commixtum, ut diduci et separari non possit, non totum sed pro parte esse vindicandum; pro rata ponderis quod in massa habemus.-D. 6, 1, 3, 2.1 Id. Idem Pomponius scribit: si frumentum duorum non voluntate eorum confusum sit, competit singulis in rem actio in 'quantum paret in illo acervo suum cuiusque esse.'-1. 5 pr. eod.* (2) It is otherwise with money belonging to others this, in case it is not distinguishable, passes into the ownership of him who has mixed it with his own, whilst a right of claim against him arises in favour of the loser for the sum represented by it. Iavol. Si alieni nummi inscio vel invito domino soluti sunt, manent eius, cuius fuerunt; si mixti essent, ita ut discerni non possent, eius fieri, qui accepit, in libris Gaii scriptum est.D. 46, 3, 78.3 § 85. ACQUISITION OF FRUITS. The natural fruits of a thing," without regard to the because the individual bodies, that is the single grains, which had belonged to each of you, have been united by your consent. If the mixture have happened by chance, or Titius have made the mixture not by your intention, it is not considered common property, because the bodies continue distinct in their substance. 1 Pomp. writes: If anything of the same material have been so melted and mixed together that it cannot be severed and divided, we cannot reclaim it in the bulk, but only by way of shares; . . . according to the proportion of weight which we possess in the mass. 2 The same Pomp. writes: If the corn of two persons have been mingled not by their intention, a real action is available to each for as much of that heap as appears to belong to each. 3 If money belonging to another have been paid without the privity or consent of the owner, it remains his to whom it belonged; we find written in the books of Gaius that if it were mixed so as not to admit of distinction, it becomes the property of him who received it. BOOK III. person by whom they may be raised, are acquired not merely by the owner of the thing (so that the right in Pt. 1. Ch. 1. the fruit-bearing thing naturally extends to the fruit, as to a customary material part which by the separation has become an independent object of right), but also by the 'bonae fidei possessor,' and him that has an independent right to the thing in respect of its produce; so that the ownership of the produce, as of a new, hitherto non-existing thing, rest upon special grounds of Law. Nevertheless, with such things acquisition obtains in different ways. Through SEPARATION, by whomsoever it may have been effected, the fruits are acquired― (1) by the owner. Inst. ii. 1, 19: Item ea, quae ex animalibus dominio tuo subiectis nata sunt, eodem iure" tibi a Sc. naturali. adquiruntur.' Ulp.: (Pomponius) scribit, si equam meam equus tuus praegnantem fecerit, non esse tuum, Iul. Qui scit fundum sibi cum alio communem (2) By the bonae fidei possessor, who however cf. § 88, and has to restore to the owner, as defending his right to D. 7, 1, 12, 5. 1 Likewise, that which is born to you from animals in your ownership you acquire by the same right. 2 (Pomp.) writes that if your stallion have made my mare pregnant, the foal is not yours but mine. He that is aware he owns a field in common with another, makes the fruits which he shall have gathered from it without the consent or knowledge of the partner in no greater share his own than that by which he is owner of the field. Nor does it matter whether he himself, or the partner, or both of them, have sown them, because all fruit is gathered, not by right of the seed, but by right of the ground. |