point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point IV. On Accession
- Accession is a mode of acquiring dominion in some thing because that thing is added to our thing. But accession is customarily made in various ways, namely:
- By nativity, or when from our animal another is born, although conceived from a male pertaining to another. For he who has the mother has a right to all her offspring. Hence the axiom: The offspring follows the womb 1.
1 Nativity here must be taken in a broader sense for origin, to which production or nativity is referred, both real, such as the offspring of animals and the fructification of fields, and that which is judged such by fiction of law, such as the rent of the leasing of houses and ground-rents. But the general rule is that whatever is born or produced pertains of itself to the dominion of the one bearing or producing.
- By alluvion, or when by force of waters an increase gradually accedes to some estate 2. But dominion cannot be acquired by sudden alluvion. - Thus all Laws establish 3.
2 This happens in two ways, namely when either by force of the course of rivers material gradually carried to some estate accedes to it, or some bank is deserted as the course of the water recedes. The rule is that the increase belongs to him whose is the land.
3 Roman common law (Instit., § 22, De rer. Divis.) thus limits: If the force of a river has torn away some part from your estate and carried it to the neighbor's estate, it is plain that it remains yours. Plainly, if it has clung for a longer time to the land of your neighbor, and the trees which it drew with itself have driven roots into that land, from that time they seem to have been acquired by the estate of your neighbor (or as Vinnius reads) it seems to have been acquired by the neighbor's estate.
Roman Law (Instit., § 22, De rer. Divis.) also resolves the question concerning an island which is born in a river, thus: An island born in a river... if indeed it holds the middle part of the river, is common to those who possess estates near the bank on both sides of the river, namely according to the measure of the breadth of each estate which is near the bank. But if it is nearer to one side, it belongs only to those who possess estates near the bank on that side. But if a river has been divided in some part, and then united below, and has reduced someone's field into the form of an island, that field remains his whose it had been.
- By adjunction, or when two things pertaining to different owners so coalesce into one thing that they cannot be separated without detriment: then the whole composite belongs to him whose material is more excellent in the composite thing, either by magnitude or by price 4; but he must make the other indemnified. - Thus Roman and French Law.
4 Others more clearly: the whole belongs to him whose thing has itself as principal, while the other thing added has itself as accessory, namely according to that saying: The accessory follows the principal. Nevertheless it is not easily defined afterward what must be judged principal and what accessory, for example, if you have painted on another's tablet, or if you have written on another's paper.
- By specification, or when from another's material a new species of body is made by art. Then, from Roman Law, if the species cannot return to the prior matter, the thing pertains to the craftsman, who is held to pay the price of the material and to compensate damages, if there are any. - But from French Law the owner of the material can reclaim the new species, by paying the price of the labor. Yet if the price of the industry far exceeds the price of the material, the craftsman can retain the species made by himself, the price of the material having been paid. If the craftsman acted in bad faith, he is held to repair the damages inflicted on the owner of the thing.
- By commixture, or confusion of two equally principal things pertaining to different owners. Then if the mixed things can be recognized and separated, let them be separated 5; but if they cannot be recognized, the thing will be common, and is to be divided according to the proportion of the proper quantity of each. Nevertheless the owner of the more excellent material can preserve the whole heap, with due compensation having been made; but if the mixed things are about equal, the composite pertains to both owners in common, and either the heap can be sold so that the price may be divided, or it can be divided according to proportion.
5 When the things of each can easily be distinguished, the question does not pertain here, where we dispute concerning dominion acquired by the mixture or confusion of things.
- By building, or when a building is constructed from another's material on one's own land, or from one's own material on another's land, or from another's material on another's land. Generally the dominion of the land draws with itself whatever is placed above or below. Therefore the building belongs to him whose is the soil, due compensation having been provided. Nearly the same must be said of planting and sowing. Hence the common verses:
Whatever is planted, sown, or built in,
All yields to the soil, if nevertheless it has taken roots.
But as regards indemnity, these things are established: 1. He who on his own land has built, planted, or done other works from another's material must under Roman Law pay double the price of the material 6; but under French Law he must pay only the price of the material and repair damages, if there are any. - 2. He who from his own material has built, planted, etc., on another's land, under Roman Law can reclaim the price of the material if he acted in good faith 7, otherwise if in bad faith; but under French Law he can likewise reclaim the price of the material if the owner of the land wishes to preserve the works; but otherwise this owner can compel the other to remove the works at his own expenses, unless his good faith is juridically established. See Casus, n. 547 and following.
6 Moreover, if he joined another's material to a building in bad faith, not only is he punished by double the price, but the owner can perhaps vindicate for himself the material removed from the building; or even, if it remains joined, an action is given to the owner for vindicating the valuation of the material, so that the other must again also pay the price of the material besides the double.
7 Understand this if to good faith there also accedes possession of the building constructed, and moreover if the estate has been made more valuable to the owner (L. 38, ff. De rei vindicat.). For if the builder is not in possession, no action is supplied to him by law by which he may obtain the price of the material and the expenses; and the only relief remains to him that, if indeed the owner of the estate has been made richer, by favor of equity an action be given to him freely by the office of the judge.