68. On Accession

1. Magdalena, a noble woman, donated some estates to Henricus, that in part of estates of this sort a monastery might be built for receiving Discalced Carmelites, and that the remaining part ought to serve for their sustenance. The donation, having been manifested to the Carmelites, was accepted by them. The building already completed, and the Carmelites now dwelling in the convent, Henricus built another college on the same estate on which the convent of the Carmelites was, destined for educating girls, and handed it over to other nuns. Hence the Carmelites complain greatly and ask that the rights which belong to them over the estate donated to them by the pious woman be preserved entire, and that the college be removed.

Q. 1. What are accession and building upon? 2. What as to the case?

R. To the first. Cf. I. M. 900, 904, 905. - To the second. This must first be noted: that, as clearly appears from the case, the donation of the estates was made not to Henricus, but to the Carmelites; Henricus is only a merely interposed person, so that the will of the pious matron could easily be put into execution. Therefore the estates donated by Magdalena pertain, as to perfect dominion of ownership, to the Carmelites. Moreover, he who builds on another's soil with his own material loses the building, because it yields to the soil. "On the contrary, if someone has built on another's soil with his own material, the building belongs to him whose also the soil is; and, if he knows that the soil is another's, he is understood to have lost the ownership of the material by his own will." L. 7, ff., § 12, de Acquir. rerum domin. Indeed, rather, he who knowingly and in bad faith has built on another's soil cannot ask the price of the material and the wages of the workmen. "Certainly, if the owner of the soil seeks the building and does not pay the price of the material and the wages of the workmen, he will be able to be repelled by the exception of fraud: that is, if he who built did not know that the soil was another's, and built in good faith as on his own; for, if he knows, fault can be objected to him, because he built rashly on that soil which he understood to be another's." Loc. cit. But Henricus knowingly, and therefore in bad faith, built the college on the soil of the Carmelites. Therefore Henricus is held to destroy the college at his own expense; he himself is held to sustain every loss and to compensate all damages brought upon the Carmelites. Cf. Inst. l. 2, 1, § 30; A. S. S., v. 24, p. 550 seqq.; I. M. 904.

2. The women of a certain village, in autumn time, had spread flax in the meadows according to custom near the bank of a river. An unexpected storm having arisen, and the river swelling, all the flax was carried away to an island situated in the middle of the river, not very far distant. The farmer who was on that island with his family gathered almost all the flax and kept it for himself. But behold, when the storm had been calmed, the women, coming and seeing the flax from the bank exposed to the sun so that it might be dried, begin to cry out that the flax be restored to them.

Q. 1. What is alluvion? 2. What as to the case?

R. To the first. Cf. I. M. 903. - To the second. The farmer cannot keep the flax for himself by title of alluvion. For by alluvion here is understood not any profit whatever brought to someone by the force of waters, but only an increase of land or soil made to an estate by the force of waters. Therefore the flax must altogether be restored to the women. But since the mixing was made altogether by chance, without any consent of the women, and the women can no longer distinguish their own flax, the whole mass is common according to the proportion of each one's portion. Wherefore it is not licit for individual women to snatch from that mass placed in common that quantity of flax which they can seize, but only that which they had before the mixing. And, if some quantity of flax was dissipated in that misfortune, this detriment must be sustained proportionately by each one, and proportionately less then each one ought to receive from the whole mass. G. 564, 548; Elbel 232, 233; I. M. 903, 907.

3. Girinus stole another's wool, from which he had cloth made. Likewise he stole another's wheat and mixed it with his own wheat of the same quality, but of a far greater quantity. The owner of the wool and wheat, learning of the theft, demands from Girinus the cloth and the whole heap of wheat.

Q. 1. What is specification? 2. What as to the case?

R. To the first. Cf. I. M. 906. - To the second. Girinus did not become owner of the cloth by specification under the more recent law, and therefore he must return the cloth to the owner of the wool. This owner is indeed held to pay Girinus the price of the specification or art. But, since Girinus acted in bad faith, he is held toward the owner of the wool concerning damages, if any perhaps followed. But since Girinus's wheat was of a far greater quantity, he himself became, by commixture, owner of the whole heap; nevertheless he is held toward the other owner of the wheat to adequate compensation. Likewise, since Girinus acted in bad faith, he is also held to repair damages, if any followed. - G. 551, 552; I. M. 906, 907.

4. Donatilla, from her slender labor, was providing sustenance for herself and her parents. On a Saturday, having received the modest wage of the whole week, she was returning home, when behold, night now having fallen, she fell among three robbers, who cruelly despoiled her of the received wage, equivalent to five lire. But she begged earnestly that they leave at least something to her, by which she might in some way revive her wretched parents from hunger. Moved by her tears, the robbers extended to her three silver lire, as they appeared by touch. Donatilla, having returned home and narrating the event, brought out the three lire received from the robbers; but, examining them with great joy, she found that they were gold and equivalent to 60 lire.

Q. 1. What is commixture? 2. What as to the case?

R. To the first. Cf. I. M. 907. - To the second. Donatilla, the thieves being unknown, can keep for herself the money received from them. For in such a case that money is an abandoned good: namely, not because it was handed over by the robbers themselves to Donatilla, since it was handed over altogether ignorantly and involuntarily; but because, in the present hypothesis, it is impossible to find them. I. M. 893; G. 527.

Even if the thieves are known, Donatilla can keep the money for herself. The reason is that, on the one hand, Donatilla has the right of denouncing them, and therefore can keep the money by reason of cession of her right; but the thieves are implicitly and rightly considered to consent to abandon the money, that they may redeem themselves from just vexation and not be brought before the judge. But on the other hand, either that money is the robbers' own, and then there is no difficulty from this head; or it was taken by theft, and then either the thieves mixed it with their own, which was in greater quantity, and by mixing it with their own made it theirs, and were held only for the value toward the despoiled owner, and in this case again there is no difficulty; or they did not mix it with their own, because they had none of their own, or a very small quantity, and in this other case, given the impossibility of finding the owner of the money, Donatilla can also keep it for herself. But what if the owner of the money appears? In truth it would be difficult in practice to prove that such a species of money belonged to such an owner, and that the robbers did not have other similar species of their own, or that other similar ones had not been stolen from others. I. M. 907; G. 527, 528, 531, 550, 551.

But what if someone had exchanged a silver coin for a gold coin, and should discover that the gold coin had been stolen from Peter: would that gold coin have to be restored to Peter? If the thief made that coin his own as such by commixture with other coins of his which he had, it would not have to be restored to Peter, and the thief would be held for its value toward the owner. But if the thief did not mix it with his own, it would have to be restored to the owner. But in practice it is very difficult for the identity of the coin to be established. This would be altogether easier if the matter concerned banknotes, which are distinguished not only by nation, but also by determinate numbers; these consequently would altogether have to be restored to the owner, as otherwise common practice and custom also holds. Hence in these banknotes attention is paid not only to the value, as in monies, but also to the species and to the individual. - G. 529; I. M. 907, 1420; C. I. 708.