Page images
PDF
EPUB

flumine nata, quod frequenter accidit, si quidem mediam partem fluminis teneat, communis est eorum, qui ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujusque fundi, quæ latitudo prope ripam sit. Quodsi alteri parti proximior sit, eorum est tantum, qui ab ea parte prope ripam prædia possident. Quodsi aliqua parte divisum flumen, deinde infra unitum agrum alicujus in formam insulæ redegerit, ejusdem permanet is ager, cujus et fuerat.

for before occupation, it belongs to no one. But when an island is formed in a river, which frequently happens, if it is placed in the middle of it, it belongs in common to those who possess the lands near the banks on each side of the river, in proportion to the extent along the banks of each man's estate. But, if the island is nearer to one side than the other, it belongs to those persons only who possess lands contiguous to the bank on that side. But if a river divides itself and afterwards unites again, thus giving to any one's land the form of an island, the land still continues to belong to the person to whom it belonged before.

D. xli. 1. 7. 3, 4.

An island formed by a stream cutting off a portion of land could not be supposed to belong to any one but its former owner. But if the island was formed by the bed of the river becoming dry in any part, it might be doubtful to whom it belonged. The bed of the river, as long as the river flowed over it, was public. Ille alveus quem sibi flumen fecit, et si privatus antea fuit, incipit tamen esse publicus (D. xliii. 12. 1.7); or rather the use of it was public, while the soil itself was the property of the private individuals to whom the soil of the banks belonged, and therefore when the bed was dried, when it had ceased to be subject to public use, the private owners resumed the rights of ownership over it. Quum exsiccatus esset alveus, proximorum fit, quia jam populus eo non utitur. (D. lxi. 1. 30. 1.) If the bed was not wholly but partially dried, the island formed would belong to the owner of the nearest bank, if it lay entirely on one side of the stream; or if it lay partly on one side and partly on the other, it would belong to the owners of both banks in such proportion as a line drawn along the middle of the stream would divide it.

23. Quodsi naturali alveo in universum derelicto alia parte fluere cœperit, prior quidem alveus eorum est, qui prope ripam ejus prædia possident, pro modo scilicet latitudinis cujusque agri, quæ latitudo prope ripam sit; novus autem alveus ejus juris esse incipit, cujus et ipsum flumen, id est publici. Quodsi post aliquod tempus ad priorem alveum reversum fuerit flumen, rursus novus alveus eorum esse incipit, qui prope ripam ejus prædia possident.

23. If a river, entirely forsaking its natural channel, begins to flow in another direction, the old bed of the river belongs to those who possess the lands adjoining its banks, in proportion to the extent along the banks of their respective estates. The new bed follows the condition of the river, that is, it becomes public. And, if after some time the river returns to its former channel, the new bed again becomes the property of those who possess the lands along its banks. D. xli. 1. 7. 5.

It might happen that the soil over which the river flowed was known to have belonged to a different person, and not to the

owners of the adjacent banks. If the river changed its channel and left the soil dry, to whom was the recovered land to belong? Could its original owner claim it, or was the presumption of law so fixed in favour of the owners of the adjacent banks that nothing was admitted to rebut it? Gaius says that strict law was against the original owner, but adds, vix est ut id obtineat (D. xli. 1. 7.5); equity would hardly allow such strictness to prevail in all cases.

24. Alia sane causa est, si cujus totus ager inundatus fuerit. Neque enim inundatio speciem fundi commutat et ob id, si recesserit aqua, palam est, eum fundum ejus manere, cujus et fuit.

24. The case is quite different if any one's land is completely inundated; for the inundation does not alter the nature of the land, and therefore, if the water recedes, the land remains indisputably the property of its owner.

D. xli. 1. 7. 6.

An inundation is here contrasted with a change in the course of a river. A field overflowed with water is still a field, and as much belongs to its owner as if it was dry.

25. Cum ex aliena materia species aliqua facta sit ab aliquo, quæri solet, quis eorum naturali ratione dominus sit, utrum is, qui fecerit, an ille potius, qui materiæ dominus fuerit: ut ecce si quis ex alienis uvis aut olivis aut spicis vinum aut oleum aut frumentum fecerit, aut ex alieno auro vel argento vel ære vas aliquod fecerit, vel ex alieno vino et melle mulsum miscuerit, vel ex alienis medicamentis emplastrum aut collyrium composuerit, vel ex aliena lana vestimentum fecerit, vel ex alienis tabulis navem vel armarium vel subsellium fabricaverit. Et post multas Sabinianorum et Proculianorum ambiguitates placuit media sententia existimantium, si ea species ad materiam reduci possit, eum videri dominum esse, qui materiæ dominus fuerat; si non possit reduci, eum potius intellegi dominum, qui fecerit ut ecce vas conflatum potest ad rudem massam æris vel argenti vel auri reduci, vinum autem aut oleum aut frumentum ad uvas et olivas et spicas reverti non potest, ac ne mulsum quidem ad vinum et mel resolvi potest. Quodsi partim ex sua materia, partim ex aliena speciem aliquam fecerit quisque, veluti ex suo vino et alieno melle mulsum aut ex suis et alienis medicamentis emplastrum aut collyrium aut ex sua et aliena lana vestimentum fecerit, dubitan

25. When one man has given a new form to materials belonging to another, it is often asked which, according to natural reason, ought to be considered the proprietor, whether he who gave the form, or he rather who owned the materials. For instance, suppose a person has made wine, oil, or wheat, from the grapes, olives, or ears of corn belonging to another; or has cast a vessel out of gold, silver, or brass, belonging to another; has made mead with another man's wine and honey; has composed a plaster, or eye-salve, with another man's medicaments; has made a garment with another's wool; or a ship, a chest, or a bench, with another man's timber. After long controversy between the Sabinians and Proculians, a middle opinion has been adopted, based on the following distinction. If the thing made can be reduced to its former rude materials, then the owner of the materials is also considered the owner of the thing made; but, if the thing cannot be so reduced, then he who made it is the owner of it. For example, a vessel when cast, can easily be reduced to its rude materials of brass, silver, or gold; but wine, oil, or wheat, cannot be reconverted into grapes, olives, or ears of corn; nor can mead be resolved into wine and honey. But, if a man has made a new thing, partly with his own materials and partly with the materials of another, as if he has made

dum non est, hoc casu eum esse dominum, qui fecerit : cum non solum operam suam dedit, sed et partem ejusdem materiæ præstavit.

mead with his own wine and another man's honey, or a plaster or eye-salve, partly with his own, and partly with another man's medicaments, or a garment with his own and also with another man's wool, then in such cases, he who made the thing is undoubtedly the proprietor; since he not only gave his labour, but furnished also a part of the materials.

GAI. ii. 79; D. xli. 1. 7. 7 ; D. vi. 1. 5. 1 ; D. xli. 1. 27. 1.

When materials belonging to different persons were mixed together, or one person bestowed his labour on the materials of another, although one person only might be the owner of the product, yet he did not become so at the expense of others. He was obliged to pay those whose materials or labour had been employed the value of their respective materials or labour, and was liable to a condictio or personal action (see Introd. sec. 95) for the enforcement of the payment. He himself could claim the product itself by vindicatio, or real action, given only to the owner of a thing. The jurists very commonly speak of a person being able to vindicate a thing as a mode of saying that he is the owner, the test of ownership being whether the supposed owner could or could not claim the thing by vindicatio. If he could bring a vindicatio, he could also bring a preliminary action called the actio ad exhibendum, the object of which was to have the thing claimed produced to the tribunal, or to get damages if it was not produced.

Supposing a person formed a thing with materials belonging to another, which was the one that could claim it by a real action, the maker of the thing or the owner of the materials? The Proculians said, the thing is a new thing, and its maker is the owner; the Sabinians said, the materials remain, although their form is changed, and their proprietor is the owner of the thing made. The distinction sanctioned by Justinian decided the question according to the fact of there being or not being a really new thing made. If there was, then the reasoning of the Proculians held good, and the maker becomes the owner by a species of occupation, quia quod factum est, ante nullius fuerat. If the thing made was only the old materials in a new form, then it belonged to the owner of the materials in accordance with the opinions of the Sabinians. The opinion of each school, therefore, was admitted where the facts were in accordance with it.

In the latter part of the section Justinian says that if the materials were partly the property of the maker, the thing made certainly belonged to him. This must be understood strictly with reference to the case spoken of in the text, that, namely, of materials, none being merely accessory, i.e. subordinate, to the others, being inseparably mixed together. If some of the materials were only accessory, and the thing made was not a new thing, it would not necessarily belong to the maker, but would only belong

to him if he was the owner of the principal materials; and if the different materials were separable from each other, they would still belong to their respective owners.

26. Si tamen alienam purpuram quis intexuit suo vestimento, licet pretiosior est purpura, accessionis vice cedit vestimento: et qui dominus fuit purpuræ, adversus eum, qui subripuit, habet furti actionem et condictionem, sive ipse est, qui vestimentum fecit, sive alius. Nam extinctæ res licet vindicari non possint, condici tamen a furibus et a quibusdam aliis possessoribus possunt.

26. If, however, any one has woven purple belonging to another into his own vestment, the purple, although the more valuable, attaches to the vestment as an accession, and its former owner has an action of theft and a condiction against a person who steals it from him, whether it was he or some one else who made the vestment. For although things which have perished cannot be reclaimed by vindication, yet they give ground for a condiction against the thief, and against some other possessors.

D. x. 4. 7. 2; GAI. ii. 79.

This is an instance of what is termed by commentators adjunctio. Ulpian says, in the Digest (x. 4. 7. 2), that a person whose purple was woven in could bring an action ad exhibendum against the owner of the vestment. This, which is as much as to say that the owner of the purple is still its owner, seems at variance with what Justinian says here of the purple acceding to the vestment, and of the person, qui dominus fuit purpura, having only a personal action. Their respective decisions would, however, be right, according as the purple was not or was an inseparable part of the vestment. Supposing the purple was so woven in that it could be again separated, then its owner, remaining its owner, could bring an action ad exhibendum. If it was made an inseparable part of the vestment, if it was an extincta res, i.e. could no more have a separate, distinct existence, then, being by its nature accessory to the vestment, it would become the property of the owner of the vestment, and its former owner would only have a personal action to recover its value.

Quibusdam possessoribus. The word quibusdam is used to exclude bona fide possessors of the res extincta, who had not done anything to cause it to perish. Against an actual thief an actio furti and a condictio might be brought, against others only a condictio. (THEOPHIL. Paraphr.)

27. Si duorum materiæ ex voluntate dominorum confusæ sint, totum id corpus, quod ex confusione fit, utriusque commune est, veluti si qui vina sua confuderint aut massas argenti vel auri conflaverint. Sed si diversæ materiæ sint et ob id propria species facta sit, forte ex vino et melle mulsum aut ex auro et argento electrum, idem juris est : nam et eo casu communem esse

27. If materials belonging to two persons are mixed together by their mutual consent, whatever is thence produced is common to both, as if, for instance, they have intermixed their wines, or melted together their lumps of gold or silver. And although the materials are different which are employed in the admixture, and thus a new substance is formed, as when mead is made with wine and honey,

speciem non dubitatur. Quodsi fortuitu et non voluntate dominorum confusæ fuerint vel diversæ materiæ vel quæ ejusdem generis sunt, idem juris esse placuit.

or electrum by fusing together gold and silver, the rule is the same; for in this case the new substance is un

doubtedly common. And if it is by chance, and not by the intention of the proprietors, that materials, whether similar or different, are mixed together, the rule is still the same.

D. xli. 1. 7-9.

This union of liquids is termed by commentators confusio. When the product became common property, then any of the joint proprietors could procure their own share to be given up to them by bringing an action called communi dividundo.

28. Quodsi frumentum Titii tuo frumento mixtum fuerit, si quidem ex voluntate vestra, commune erit, quia singula corpora, id est singula grana, quæ cujusque 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 nec magis istis casibus commune fit frumentum, quam grex communis esse intellegitur, si pecora Titii tuis pecoribus mixta fuerint: sed si ab alterutro vestrum id totum frumentum retineatur, in rem quidem actio pro modo frumenti cujusque competit, arbitrio autem judicis continetur, ut is æstimet, quale cujusque frumentum fuerit."

28. If the wheat of Titius is mixed with yours, when this takes place by your mutual consent, the mixed heap belongs to you in common; because each body, that is, each grain, which before was the property of one or other of you, has by your mutual consent been made your common property; but, if the intermixture was accidental, or made by Titius without your consent, the mixed wheat does not then belong to you both in common; because the grains still remain distinct, and retain their proper substance. The wheat in such a case no more becomes common to you both. than a herd would be, if the cattle of Titius were mixed with yours; but, if either one of you keeps the whole quantity of mixed wheat, the other has a real action for the amount of wheat belonging to him, but it is in the province of the judge to estimate the quality of the wheat which belonged to each.

D. vi. 1. 4. 5.

This mixing together of things not liquid is termed by commentators commixtio. If the things mixed, still remaining the property of their former owners, were easy to separate again, as, for instance, cattle united in one herd, when one owner brought his claim by vindicatio, his property was restored to him without difficulty; but if there was difficulty in separating the materials from each other, as in dividing the grains of wheat in a heap, the obvious mode would be to distribute the whole heap in shares proportionate to the quantity of wheat belonging to the respective owners. But it might happen that the wheat mixed together was not all of the same quality, and therefore the owner of the better kind of wheat would lose by having a share determined in amount only by the quantity of his wheat; and the judge therefore was permitted to exercise his judgment (arbitrio continetur-see

« PreviousContinue »