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and do so with the intention of holding it as his property (pro suo habendi).

12. Feræ igitur bestiæ et volucres et pisces, id est omnia animalia, quæ in terra mari cælo nascuntur, simulatque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt: quod enim ante nullius est, id naturali ratione occupanti conceditur. Nec interest, feras bestias et volucres utrum in suo fundo quisque capiat, an in alieno: plane qui in alienum fundum ingreditur venandi aut aucupandi gratia, potest a domino, si is providerit, prohiberi, ne ingrediatur. Quidquid autem eorum ceperis, eo usque tuum esse intellegitur, donec tua custodia coercetur: cum vero evaserit custodiam tuam et in naturalem libertatem se receperit, tuum esse desinit et rursus occupantis fit. Naturalem autem libertatem recipere intellegitur, cum vel oculos tuos effugerit vel ita sit in conspectu tuo, ut difficilis sit ejus persecutio.

12. Wild beasts, birds, fish, that is, all animals, which live either in the sea, the air, or on the earth, so soon as they are taken by any one, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Of course any one who enters the ground of another for the sake of hunting or fowling, may be prohibited by the proprietor, if he perceives his intention of entering. Whatever of this kind you take is regarded as your property, so long as it remains in your keeping, but when it has escaped and recovered its natural liberty, it ceases to be yours, and again becomes the property of him who captures it. It is considered to have recovered its natural liberty, if it has either escaped out of your sight, or if, although not out of sight, it yet could not be pursued without great difficulty.

GAI. ii. 67; D. xli. 1. 1. 1 ; D. xli. 1. 3 pr. and 1; D. xli. 1. 3. 2; D. xli. 1. 5.

Directly the thing ceases to be in the power of the occupant, the property in it is lost, and it is exactly as if it had never been seized or occupied. What is meant by being in the power of the occupant must vary according to the nature of the thing occupied. Several examples are given in this and the following paragraphs.

13. Illud quæsitum est, an, si fera bestia ita vulnerata sit, ut capi possit, statim tua esse intellegatur. Quibusdam placuit, statim tuam esse et eo usque tuam videri, donec eam persequaris; quodsi desieris persequi, desinere tuam esse et rursus fieri occupantis. Alii non aliter putaverunt tuam esse, quam si ceperis. Sed posteriorem sententiam nos confirmamus, quia multa accidere solent, ut eam non capias.

13. It has been asked, whether, if you have wounded a wild beast, so that it could be easily taken, it immediately becomes your property. Some have thought that it does become yours directly you wound it, and that it continues to be yours while you continue to pursue it, but that you cease to pursue it, it then ceases to be yours, and again becomes the property of the first person who captures it. Others have thought that it does not become your property until you have captured it. We confirm this latter opinion, because many accidents may happen to prevent your capturing it.

D. xli. 1. 5. 1.

Gaius, in this passage of the Digest, informs us that the former opinion was that of Trebatius.

14. Apium quoque natura fera est. Itaque quæ in arbore tua consederint, antequam a te alveo includantur, non magis tuæ esse intelleguntur, quam volucres, quæ in tua arbore nidum fecerint: ideoque si alius eas incluserit, is earum dominus erit. Favos quoque si quos hæ fecerint, quilibet eximere potest. Plane integra re, si provideris ingredientem in fundum tuum, potes eum jure prohibere, ne ingrediatur. Examen, quod ex alveo tuo evolaverit, eo usque tuum esse intellegitur, donec in conspectu tuo est nec difficilis ejus persecutio est: alioquin occupantis fit.

14. Bees also are wild by nature. Therefore, bees that swarm upon your tree, until you have hived them, are no more considered to be your property than the birds which build their nests on your tree; so, if any one else hives them, he becomes their owner. Any one, too, is at liberty to take the honeycombs the bees may have made. But of course, if, before anything has been taken, you see any one entering on your land, you have a right to prevent his entering. A swarm which has flown from your hive is still considered yours as long as it is in your sight and may easily be pursued; otherwise it becomes the property of the first person that takes it.

D. xli. 1. 5. 2-4.

It is said that the owner of the land, if he wished to secure the bees for himself, must prevent any one entering integra re; because, if the bees are once taken, they belong to the person who takes them, although the owner of the land may have an action against the person entering against his will.

15. Pavonum et columbarum fera natura est. Nec ad rem pertinet, quod ex consuetudine avolare et revolare solent: nam et apes idem faciunt, quarum constat feram esse naturam cervos quoque ita quidam mansuetos habent, ut in silvas ire et redire soleant, quorum et ipsorum feram esse naturam nemo negat. In his autem animalibus, quæ ex consuetudine abire et redire solent, talis regula comprobata est, ut eo usque tua esse intellegantur, donec animum revertendi habeant: nam si revertendi animum habere desierint, etiam tua esse desinunt et fiunt occupantium. Revertendi autem animum videntur desinere habere, cum revertendi consuetudinem deseruerint.

15. Peacocks, too, and pigeons are naturally wild, nor does it make any difference that they are in the habit of flying out and then returning again, for bees, which without doubt are naturally wild, do so too. Some persons have deer so tame, that they will go into the woods, and regularly return again; yet no one denies that deer are naturally wild. But, with respect to animals which are in the habit of going and returning, the rule has been adopted, that they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours, and become the property of the first person that takes them. These animals are supposed to have lost the intention, when they have lost the habit, of returning.

GAI. ii. 68; D. xli. 1. 55.

16. Gallinarum et anserum non est fera natura idque ex eo possumus intellegere, quod aliæ sunt gallinæ, quas feras vocamus, item alii anseres, quos feros appellamus. Ideoque si anseres tui aut gallinæ tuæ aliquo casu turbati turbatæve evolaverint, licet conspectum tuum effugerint, quocumque tamen loco

16. But fowls and geese are not naturally wild, which we may learn from there being particular kinds of fowls and geese which we term wild. And, therefore, if your geese or fowls should be frightened, and take flight, they are still regarded as yours wherever they may be, although you may have lost sight of them; and whoever

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The moveables of an enemy were always looked on as res nullius; the first person who took them became the owner. Practically, of course, things taken in war did not belong to the particular soldier who took them, unless in very exceptional cases, because he took them as one of a large body, whose exertions all contributed, directly or indirectly, to the capture. The army, again, did but represent the state; and though moveables were generally given up to the soldiers and divided among them, land taken in war was claimed by the state, whose servants the soldiers were and in whose behalf they fought.

Just as the freeman, who had been made a prisoner and a slave, regained his status when he returned to his own country by the jus postliminii (see Bk. i. Tit. 12. 5), so everything that returned to its former state of being free from any owner, was said to do so by a process analogous to the jus postliminii. Marcian, for example, speaks in the Digest (i. 8. 6) of a person building on a shore, and, after having said that the soil is only his while the building remains, goes on, alioquin ædificio dilapso, quasi jure postliminii revertitur locus in pristinam causam.

We have no mention here, which we might expect to have, of the mode by which things retaken in war returned to their owners, nor what things did so return. We know that the things that did return were said to do so by postliminium; Pomponius says, duce species postliminii sunt, aut ut ipsi revertamur aut aliquid recipiamus. (D. xlix. 15. 14.) Generally speaking, if the property of individuals was captured by an enemy and retaken, it was præda, that is, was part of the spoil of war, and belonged to the state, not to its former owner. But there were certain things to which a jus postliminii attached, and which, if retaken, reverted to their original owner, and did not form part of the prada. These things, so far as we know them, were land, slaves, horses, mules, and ships used in war. (Cic. Top. 8; D. xlix. 15. 2.)

18. Item lapilli, gemmæ et cetera, quæ in litore inveniuntur, jure naturali statim inventoris fiunt.

18. Precious stones, too, gems, and other things, found upon the sea-shore, become immediately by natural law the property of the finder. D. i. 8. 3.

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In the next section Justinian leaves the subject of acquisition by occupation, but afterwards speaks of matters that properly belong to it, of islands rising in the sea (paragr. 22), and things found which have been intentionally abandoned by their owners (paragr. 47, 48).

19. Item ea, quæ ex animalibus dominio tuo subjectis nata sunt, eodem jure tibi adquiruntur.

19. So too, all the offspring of animals of which you are the owner, becomes by the same law your property. D. xli. 1. 6.

From the 19th to the 35th paragraph inclusive, may be taken together as bearing more or less on the subject of accession. The Latin word accessio always means an increase or addition to something previously belonging to us, but commentators have used the word accession not only for the increase itself, but also for the mode in which the increase becomes our property.

First, there is the instance given in this section and in the 35th section of the produce of animals, and the fruits of lands belonging to us. They are really part of that which originally belonged to us. The owner of the wheat-seed is potentially the owner of the blade and the ear; the owner of the animal is potentially the owner of its young.

Again, a thing may be an accessio, an actual gain or increase to our property, which was in theory of law, but not in fact, ours already. This is the case with an island in a river, an instance given in sec. 22. The bed of the river becomes publicus by the mere fact of the river flowing over it; if any portion of the bed is dried so as to form an island, it ceases to be public, and, becoming private, is presumed to be a part of the adjacent land. It is something not newly acquired, but restored to us by nature; we have been temporarily deprived of it, and again resume our rights over it.

Again, a person who uses materials sometimes only gives them a new form, sometimes makes with them a new thing, different from the materials themselves. When he does the latter, the thing he makes, the nova species, as the jurists termed it, becomes his by the fact of his making it. The thing did not exist, and he has made it to exist, and it belongs to him by a title not dissimilar to that of occupation: it is a new thing, which he is the first to get into his power. To take an instance given in paragraph 25, a man who makes wine out of another's grapes has made something new of a kind distinct from the grapes themselves, and the wine belongs to him. This specification may be, perhaps, regarded as a distinct mode of acquisition.

Again, when two things belonging to different owners are united so as to become integral portions of a common whole, but one portion is subordinate and inferior to the other, we have to ask whether the owner of the greater became the owner of the less. The Roman jurists answered this by asking whether the

two things could after their union be separated from each other. If this was physically possible, each owner of the respective portions continued to be owner; but if not, the owner of the more important or principal thing became the owner of the less important or accessory thing.

20. Præterea quod per alluvionem agro tuo flumen adjecit, jure gentium tibi adquiritur. Est autem alluvio incrementum latens. Per alluvionem autem id videtur adjici, quod ita paulatim adjicitur, ut intellegere non possis, quantum quoquo momento temporis adjiciatur.

20. Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase; and that is added by alluvion, which is added so gradually that no one can perceive how much is added at any one moment of time.

D. xli. 1. 7. 1.

The deposit of earth gradually formed by alluvion upon the bank of a river is inseparable from the native soil of the bank; and the owner of the latter acquires the former by right of accession.

An exception was made in the case of agri limitati, that is, ( lands belonging to the state by right of conquest, and granted or sold in plots. If these plots were enlarged by alluvion, the increase did not become the property of the owner of the plot. (D. xli. 1. 16.) The reason seems to be that the particles deposited by alluvion were considered public as forming portion of the current of the stream, the waters of which were public, and when these particles were deposited by the side of a plot granted or sold by the state, they were not allowed to enlarge the plot of which the state had already determined the proper size.

21. Quodsi vis fluminis partem aliquam ex tuo prædio detraxerit et vicini prædio appulerit, palam est eam tuam permanere. Plane si longiore tempore fundo vicini hæserit arboresque, quas secum traxerit, in eum fundum radices egerint, ex eo tempore videntur vicini fundo adquisitæ esse.

21. But if the violence of a river should bear away a portion of your land, and unite it to that of your neighbour, it undoubtedly still continues yours. If, however, it remains for a long time united to your neighbour's land, and the trees, which it swept away with it, take root in his ground, these trees from that time become part of your neighbour's estate. D. xli. 1. 7. 2.

When a large mass of earth is carried to the side of a river bank, it is quite possible to detach it, and consequently the mass remains the property of its former owner; but if it becomes inseparable in the manner described in the text, then the property in it is changed.

Videntur acquisita is substituted here for videtur acquisita in the Digest, to include the trees themselves as well as the soil of the fragment. (See paragr. 31.)

22. Insula, quæ in mari nata est, quod raro accidit, occupantis fit: nullius enim esse creditur. At in

22. When an island is formed in the sea, which rarely happens, it is the property of the first occupant;

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