Introd. sec. 106) how great an addition ought to be made to his share to compensate for the superior quality of the wheat originally belonging to him.

29. Cum in suo solo aliquis aliena materia ædificaverit, ipse dominus intellegitur ædificii, quia omne, quod inædificatur, solo cedit. Nec tamen ideo is, qui materiæ dominus fuerat, desinit ejus dominus esse sed tantisper neque vindicare eam potest neque ad exhibendum de ea re agere propter legem duodecim tabularum, qua cavetur, ne quis tignum alienum ædibus suis injunctum eximere cogatur, sed duplum pro eo præstet per actionem, quæ vocatur de tigno juncto (appellatione autem tigni omnis materia significatur, ex qua ædificia fiunt): quod ideo provisum est, ne ædificia rescindi necesse sit. Sed si aliqua ex causa dirutum sit ædificium, poterit materiæ dominus, si non fuerit duplum jam consecutus, tunc eam vindicare et ad exhibendum

agere.

29. If a man builds upon his own ground with the materials of another, he is considered the proprietor of the building, because everything built on the soil accedes to it. The owner of the materials does not, however, cease to be owner, but while the building stands he cannot bring a real action for the materials, or demand to have them exhibited, on account of the law of the Twelve Tables, which provides that no one is to be compelled to take out the tignum of another which has been made part of his own building, but that he may be made, by the action de tigno juncto, to pay double the value; and under the term tignum all materials for building are comprehended. The object of this provision was to prevent the necessity of buildings being pulled down. But if the building is destroyed from any cause, then the owner of the materials, if he has not already obtained the double value, may bring a real action for the materials, and may demand to have them exhibited.

GAI. ii. 73; D. xli. 1. 7. 10.

Materials, although forming part of a building belonging to the owner of the ground, were not considered themselves as necessarily belonging to the owner of the building. They were still the property of the person to whom they had belonged before being employed in the building. They were separable from the soil, and, if a special law had not prevented it, could have been claimed by their owner, and their production enforced by an action ad exhibendum. The Twelve Tables forbad, however, the needless destruction of buildings, ne ædificia rescindi necesse sit. They suspended the right of claiming the materials, or bringing an action ad exhibendum, until the building was destroyed. When it was destroyed in any way (aliqua ex causa) the materials might be reclaimed, or an action ad exhibendum brought. Meanwhile, by an action termed de tigno juncto, or, as it is sometimes written, injuncto, their owner might, if he preferred, recover double their value, forfeiting, however, thereby all right of eventually reclaiming them.

Such was the law when the builder employed the materials of another quite innocently. If his conduct was tainted with mala fides, as it would be if he knew that the materials did not belong to him, the law of the Twelve Tables still prevented the materials being at once reclaimed by the compulsory destruction of the

building; but in addition to the action de tigno juncto an action ad exhibendum was permitted to be brought as a means of punishing the builder. (D. vi. 1. 23. 6.) The effect of this action in such a case was that the defendant, not producing the thing demanded, was condemned in such a sum as the judge thought right as a punishment for his having put it out of his power to produce it-quasi dolo fecerit quominus possideat. (D. xlvii. 3. 1. 2.) Further, if the building was pulled or fell down, the owner of the materials might reclaim them. (D. xlvii. 3. 2.)

30. Ex diverso si quis in aliend solo sua materia domum ædificaverit, illius fit domus, cujus et solum est. Sed hoc casu materiæ dominus proprietatem ejus amittit, quia voluntate ejus alienata intellegitur, utique si non ignorabat, in alieno solo se ædificare et ideo, licet diruta sit domus, vindicare materiam non poterit. Certe illud constat, si in possessione constituto ædificatore, soli dominus petat domum suam esse nec solvat pretium materiæ et mercedes fabrorum, posse eum per exceptionem doli mali repelli, utique si bonæ fidei possessor fuit, qui ædificasset: nam scienti, alienum esse solum, potest culpa obici, quod temere ædificaverit in eo solo, quod intellegeret alienum esse.

if

30. In the converse case, if any one builds with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case the owner of the materials loses his property, because he is presumed to have voluntarily parted with them, that is, if he knew he was building upon another's land; and, therefore, if the building should be destroyed, he cannot, even then, bring a real action for the materials. Of course, the person who builds is in possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bona fide. For if he knew that he was not the owner of the soil, he is barred by his own negligence, because he recklessly built on ground which he knew to be the property of another. D. xli. 1. 7. 12.

If a person used his own materials in building on the land of another, we have to consider his position, according as he was or was not still in possession, and according as, in building, he had acted bona fide or mala fide. If he was in possession of the soil, then, if he was acting bona fide, he could not be turned out without the owner paying him for the additional value he had by the building given to the soil, this rather than the price of the materials and wages of workmen, as stated in the text, being the measure of compensation. If he was acting mala fide, that is, if he knew the soil was not his, he could not claim the additional value, but he might take away the materials he had used, if he could separate them without doing damage. (D. vi. 1. 37.) There is, however, a passage of Paulus (D. v. 3. 38) which would seem to show that, in the opinion of that jurist, the mala fide possessor could claim the additional value. If he was not in possession of the soil, he might, whether having acted in good or bad faith (D. xl. 1. 7. 12; C. iii. 32. 2), reclaim the materials if the building was destroyed; and, whether he had acted in good

faith or bad, he could not bring any action for compensation for "the additional value.

This statement of the law is, it will be seen, at variance, in one point, with the language of the text, which says that if the owner of the materials knew he was building on another man's land he could not reclaim the materials, because the fact that he knew this was taken to show that he meant to alienate the materials. The passage in the Code above referred to is inconsistent with this. If the owner of the materials meant to give them to the owner of the soil, no question could arise; but the fact that he used his materials, knowing the soil was not his, was declared by the constitution referred to (being a constitution of Antoninus Caracalla), not to imply, as the text takes for granted that it does imply, the intention to alienate the materials;. and if there was no such intention, then the materials could be reclaimed even by the mala fide possessor. The words of the constitution areMateria ad pristinum dominum redit, sive bona fide sive mala ædificium exstructum sit, si non donandi animo ædificia alieno solo imposita sint. The date of this constitution is A.D. 213, which is posterior to the time of Gaius, from whom the text is taken.

Dolus malus (opposed to dolus bonus, artifice which the law considers honestly employed) means nearly what we mean by fraud. When a plaintiff was repelled by an exception of fraud, such words as these were introduced in the intentio of the action: si in ea re nihil dolo malo Auli Agerii factum sit, neque fiat. (See Introd. sec. 104.)

31. Si Titius alienam plantam in suo solo posuerit, ipsius erit: et ex diverso si Titius suam plantam in Mævii solo posuerit, Mævii planta erit, si modo utroque casu radices égerit. Antequam autem radices egerit, ejus permanet, cujus et fuerat. Adeo autem ex eo, ex quo radices agit planta, proprietas ejus commutatur, ut, si vicini arborem ita terra Titii presserit, ut in ejus fundum radices ageret, Titii effici arborem dicamus: rationem etenim non permittere, ut alterius arbor esse intellegatur, quam cujus in fundum radices egisset. Et ideo prope confinium arbor posita si etiam in vicini fundum radices egerit, communis fit.

31. If Titius places another man's plant in ground belonging to himself, the plant will belong to Titius; conversely, if Titius places his own plant in the ground of Mævius, the plant will belong to Mævius-that is, if, in either case, the plant has taken root; for, before it has taken root, it remains the property of its former owner. But from the time it has taken root, the property in it is changed; so much so, that if the soil of Titius has so pressed on the tree of a neighbour that the tree has taken root therein, we pronounce that the tree becomes the property of Titius. For reason does not permit, that a tree should be considered the property of any one else than of him in whose ground it has taken root; and therefore, if a tree, planted near a boundary, extends its roots into the lands of a neighbour, it be

comes common.

GAI. ii. 74; D. xli. 1. 7. 13.

The tree, after it had once taken root, did not belong to its former owner, although it was afterwards severed from the soil.

It would seem natural that it should belong to him, because it was separable from the soil, and did not become a part of it more than the materials of a building became part of the soil; but the jurists considered that the nourishment it had drawn from the soil had made it a new tree, alia facta est (D. xli. 1. 26. 2), and thus the owner of the soil claimed it by occupation.

When the text says that the tree which strikes root into the soil of Titius belongs to Titius, this is only to be understood of a tree of which all the roots are in the soil of Titius. If only some of the roots were in the soil of Titius, the tree would belong partly to Titius, partly to its former owner.

32. Qua ratione autem plantæ, quæ terra coalescunt, solo cedunt, eadem ratione frumenta quoque, quæ sata sunt, solo cedere intelleguntur. Ceterum sicut is, qui in alieno solo ædificaverit, si ab eo dominus petat ædificium, defendi potest per exceptionem doli mali secundum ea, quæ diximus ita ejusdem exceptionis auxilio tutus esse potest is, qui alienum fundum sua impensa bona fide consevit.

:

32. As plants rooted in the earth accede to the soil, so, in the same way, grains of wheat which have been sown are considered to accede to the soil. But as he who has built on the ground of another may, according to what we have said, defend himself by an exception of dolus malus, if the proprietor of the ground claims the building, so also he may protect himself by the aid of the same exception, who, at his own expense and acting bona fide, has sown another man's land.

GAI. ii. 75, 76; D. xli. 1. 9.

33. Litteræ quoque, licet aureæ sint, perinde chartis membranisque cedunt, acsi solo cedere solent ea, quæ inædificantur aut inseruntur: ideoque si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Titius, sed tu dominus esse videberis. Sed si a Titio petas, tuos libros tuasve membranas esse, nec impensam scripturæ solvere paratus sis, poterit se Titius defendere per exceptionem doli mali, utique si bona fide earum chartarum membranarumve possessionem nanctus est.

33. Written characters, although of gold, accede to the paper or parchment on which they are written, just as whatever is built on, or sown in, the soil, accedes to the soil. And therefore if Titius has written a poem, a history, or an oration, on your paper or parchment, you, and not Titius, will be the owner of the written paper. But if you claim your books or parchments from Titius, but refuse to defray the cost of the writing, then Titius can defend himself by an exception of dolus malus; that is, if it was bona fide that he obtained possession of the papers or parchments.

GAI. ii. 77; D. xli. 1. 9. 1.

In this case the letters are inseparable from, and subordinate to, the substance on which they are written, and become at once the property of the owner of that substance.

34. Si quis in aliena tabula pinxerit, quidam putant tabulam picturæ cedere: aliis videtur pictura, qualiscumque sit, tabulæ cedere. Sed nobis videtur melius esse, tabulam picturæ cedere: ridiculum est enim, picturam Apellis vel Parrhasii in accessionem vilissimæ

34. If a person has painted on the tablet of another, some think that the tablet accedes to the picture, others that the picture, of whatever quality it may be, accedes to the tablet. It seems to us the better opinion, that the tablet should accede to the picture; for it is ridiculous that a painting of Apelles or

tabulæ cedere. Unde si a domino tabulæ imaginem possidente is, qui pinxit, eam petat nec solvat pretium tabulæ, poterit per exceptionem doli mali summoveri: at si is, qui pinxit, possideat, consequens est, ut utilis actio domino tabulæ adversus eum detur, quo casu, si non solvat impensam picturæ, poterit per exceptionem doli mali repelli, utique si bona fide possessor fuerit ille, qui picturam imposuit. Illud enim palam est, quod, sive is, qui pinxit, subripuit tabulas sive alius, competit domino tabularum furti actio.

Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by an exception of dolus malus. If the painter is in possession of the picture, the law permits the owner of the tablet to bring a utilis actio against him; and in this case if the owner of the tablet does not pay the cost of the picture, he may also be repelled by an exception of dolus malus ; that is, if the painter obtained possession bona fide. For it is clear that if the tablet has been stolen, whether by the painter or any one else, the owner of the tablet may bring an action of theft.

GAI. ii. 78; D. xli. 1. 9. 2.

As written characters belong to the owner of the substance on which they are written, it would seem to follow that a painting also would belong to the owner of the substance on which it was painted; and Paul (D. vi. 1. 23. 3) decides that it does, saying that the painting could not exist without the substance on which it was painted, and therefore acceded to it. Gaius, whose opinion is adopted in the text, makes the great value of the painting the reason for an exception to the rule. But the owner of the tablet or substance, on which the painting was painted, had in one way something of the rights of an owner; for if the painter was in possession of the painting, the owner of the tablet was not left only to a personal action for the value of the board, but could claim the board itself. The action by which he did so was termed utilis, because it was only an equitable method of protecting him, the prætor allowing him to assert fictitiously that he was the The direct legal power of claiming the tablet (vindicatio recta) was in the painter whose property the tablet had become; but the former owner of the tablet was allowed still to treat it as his, in order to compel the painter to pay its value. If, when the actio utilis was brought, the painter paid the value of the tablet, the right of action was at an end, and the owner of the tablet could not get possession of the picture by offering to pay its

owner.

cost.

Consequens est ut utilis actio, &c. It would not follow from the painter possessing that the owner of the tablet should have a real action of any kind. On the contrary, it was an exception that then he should have one. Therefore consequens must be taken as meaning in accordance with the principles of law;' or the sentence must be taken as meaning, If the painter is in possession,' this circumstance places the owner of the tablet in