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3. Adjunctio. This was where one had inter- CHAP. woven the purple of another into his cloth, and by purple is meant any thing of more value than the Adjunctio. texture itself, as it could not be separated without destroying the web it became an industrial accession to the weaver; but if it were so attached as to be capable of separation in its original state it must be returned'.
4. Confusio. This was the mixing of liquids, Confusio. such as wines, or metals in a liquid state; if done by mutual consent of the owners, or by accident, the compound was common to the two.
5. Edificatio. This was where one built on Edificatio. his own land with another man's materials, or where he built on another man's land with his own materials. In the first case he might have returned the materials by pulling down the building, but a law of the Twelve Tables forbad this, and bound the builder to pay in duplum for the materials so used. In the latter, if he knew it to be the land of another he has forfeited his materials; and the building became an industrial accession of the owner of the land; if he were not aware that he was building on another's land then the owner of the land must pay the price of the materials and labour3.
6. Plantatio et satio, planting and sowing. Plantatio If one plant another's tree in his own land, or his own tree in another's land, the tree may in each case be claimed and recovered, unless it have struck root into the soil; in that case it then belongs to the owner of the soil; and if a tree be so planted that the roots strike into the land of two persons it is common to both. In the case of sowing, if I, being a bona fide possessor, use my own seed upon another man's land, this is an industrial accession, but I must be paid for the seed and labour. If I know that I am sowing
BOOK land that is not my own I forfeit my seed and labour. Again, if I use another man's seed on my own land, as the seed cannot be returned I must pay for it'.
7. Scriptura, writing on another man's paper, or vellum. In this case the writing follows the material. If Titius write a poem on my paper the poem belongs to me, but I must pay Titius the expense of the writing provided he were a bona fide possessor.
8. Pictura, painting on another's tablet. Here the painting follows the tablet, for which rule Gaius thinks no sufficient reason is given2; but according to Justinian it is because the value of the painting so far exceeds that of the tablets. If therefore the painter be in possession of the picture he must pay the value of the tablet to the owner. If the owner of the tablet be in possession of the picture, he must pay the value of the painting if he meant to keep possession, otherwise an action would lie to recover the value. In all the above cases the transaction is supposed to be bona fide, otherwise the party is liable to the actio furti.
The bona fide purchaser of an estate was secured in his right to the crops, according to Paulus, not only which he had sown, but of every description which the land produced, and they vested in Bona fidei him as soon as severed from the soil. Bonæ fidei possessor. possessor fructus percipiendo suos facit, and the reason given by Justinian is pro cultura et cura, but he further adds that the owner cannot call the possessor to account de fructibus ab eo consumptis. This has led to disputes among commentators as to the fructus percepti, and the fructus consumpti. It would appear that the owner of the land could claim the former, but he would doubtless have to pay all the expenses of culture.
3 I. II. I. 34.
2 Gai. II. 78.
1 D. XLI. 1. 9.
5 I. II. I. 35.
4 D. XLI. I. 48.
Traditio is the third and last natural mode of CHAP. acquiring property. It is classed among the natural modes, because it was the original, simple, 3. Traditio. natural conveyance of property from one to another, with the intention of the owner to part with his property, by the mere act of delivery. The increase of population would cause an increase in the value of property, and derelicts would cease to be common. Before a man abandoned his possessions, and allowed them to fall again into the common stock, he would seek to obtain something in exchange, for which he was willing to transfer his rights to another; and such an agreement being come to, the mere delivery transferred the rights of the first possessor to the receiver.
Traditio est modus adquirendi derivativus, quo dominus qui jus et animum alienandi habet rem corporalem ex justa causa in accipientem transfert. The meaning of the word derivativus is that the right of traditio is derived from the two original modes of acquiring property, viz. occupatio and accessio.
To make a tradition valid it was necessary, 1. The thing delivered must be something corpo- Necessary real, capable of delivery. 2. The delivery must be requisites. by the owner, having a right to alienate. 3. And an intention to alienate. 4. And no property vests in the receiver unless there be a good consideration for the transfer.
Traditio was, I. Vera, 2. Ficta, 3. Brevi manu, 4. Longa manu, 5. Symbolica.
I. Vera, where a moveable thing was delivered Vera. by the owner to the receiver, or if immoveable, where the receiver was put in possession2.
2. Ficta. Incorporeal property was incapable Ficta. of absolute delivery. A delivery therefore was supposed by the expressed intention of the owner. 3. Brevi manu. This is where the property in Brevi question is already in the possession of the person
1 Hein. El. CCCLXXX.
2 D. XV. I. 8. Id. XLI. 2. 3. I.
BOOK to whom it is to be transferred, e. g. as a pawn, or a thing lent for use. In either case if the owner agree to make over the property to him which he only holds as a security, or for his accommodation, no further delivery need be made'.
4. Longa manu is where lands at a distance are pointed out by the owner, and so delivered by his verbal declaration".
5. Symbolica. This is where the keys of a warehouse or a cellar are delivered to the purchaser whereby he can possess himself of the property which they contain3.
The above-mentioned acts need not necessarily be done by the owner of the property himself; for if done by his procurator, attorney, or recognized agent, the transfer will be equally valid.
1 I. II. I. 44.
3 D. XLI. I. 8. 6.
2 D. XLI. 2. 18. 2.
Of rights, or things incorporeal, and of real and personal Services.
THIS chapter treats of the second division of CHAP. property, res incorporales, quæ tangi non possunt. These are rights which spring from real estates, and correspond with the chattel real of the English law. They are called "servitutes," services. A Servitus. servitus is thus defined, jus in re aliena constitutum, Definition. quo dominus in re sua aliquid pati, vel non facere tenetur, in alterius persona reive utilitatem1. right established in another's property, whereby the owner of that property is bound to permit something to be done in it, or to forbear to do something himself, for the convenience of some other person or thing. A servitus, therefore, consists either in patiendo or non faciendo, the former being a positive, the latter a negative service. Positive Services are divided into real and personal; and and nega real are again divided into rural and urban. Real and Before proceeding to explain these it is advisable Personal. to premise a few words as to their origin and importance.
The Roman Servitus realis corresponds with the easement of the English law. The property Origin of of any one must, as a general rule, of necessity real be contiguous to that of some other proprietor; and the right which every owner has to the free use of his property very early led to the various servitutes. If the land of one were so situated that he could not get to or from the public highway without passing over the land of another; or if he could not drain his land without cutting
1 Hein. El. CCCXCII.