Accession

Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale, ‘The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.

Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial, With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.

When one thing is added to another, the general rule is that what is accessory becomes the property of the owner of what is principal. And so the owner of land has the property in gradual increments made to it by alluvion; an island formed in a river belongs to the owner of the bed. If a river suddenly changes its course, or the sea suddenly retires, the rule does not hold; the ownership remaining as before. If wood belonging to another has been used in a building, the property is transferred to the owner of the building, with the obligation of making compensation for the wood. Similarly a painting on another’s canvas belongs to the painter, but he must pay for the canvas. When a new form has been introduced into the material, as by baking bread, making wine or oil, the product belongs to the workman, but compensation must be made for the material. The ownership is then said to be acquired by specification, When liquids or solids belonging to different owners have been mixed, they should be separated if possible, and each owner will retain his separate property. If this is impossible, the former owners still retain their right to a proportionate part of the whole or to its value.

I. Notion. Accession is the right by which we acquire whatever is united with our thing.

II. Modes of accession. Accession can occur by alluvion, by planting, sowing, and building, by commixture and confusion. It is useful to hand down certain notions.

1. Alluvion is had when, from an overflowing river, something of land accrues to someone's estate.

2. Commixture is had when solid things, and confusion when liquid things, belonging to different owners, are mixed together.

What right accrues to the owners in individual cases, you should draw from the civil laws.

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

Principles on Accession.—(a) According to natural law, if the two things united are separable, then each owner should be given his own property; but if the things are inseparable and one is more valuable, the owner of the more valuable part keeps all, but compensates the owner of the less valuable part; if the things are inseparable and of equal value, there is joint ownership.

(b) According to positive law, these natural principles are applied to various cases of accession, whether it be natural (as through growth of plants or deposit of land by rivers) or artificial (as through change made in a material by labor, or addition of one substance to another). These details are treated in books on law.

What is accession, and of how many kinds is it? Accession can be taken in two ways, generically and specifically. Considered generically, it is an addition made to some thing, either on account of the production of a thing, or on account of the union of a thing with another, or on account of the alteration of the same thing. C. I. 443; C. G. 546; C. H. 353; C. A. 404; C. L. 2284. Cf. here 902, 905.

Is ownership acquired by alluvion? - Alluvion is a species of accession in a matter of soil, not by man's industry, but by nature alone. Four things are to be distinguished here: alluvion, avulsion, change of riverbed, and an island born. Alluvion is a hidden increase which is gradually added by a river to some estate. By alluvion, ownership is immediately acquired of that increase which, by the force or even by the recession of water, is insensibly and successively added to an estate. C. I. 453, 454; C. G. 556, 557; C. H. 366; C. A. 411; C. L. 2290, 2291; L. 494. Except, however, places left by the sea, which are of the domain, and lakes or ponds of private persons, which, whether they increase or decrease, grant or confer no new right. C. I. 454, 455; C. G. 558. Avulsion occurs when a whole part of land, torn away by the force of a river, is joined to another estate. Ownership of this is not acquired immediately, but, possession of it having been taken, after a year, unless the owner has vindicated it for himself. C. I. 456; C. G. 559; C. A. 412. Cf. C. H. 368, 369; C. He. 659; C. L. 2292. Change of riverbed. If a river gradually recedes from one bank and invades the other, the place left belongs to the proprietors of the fields along the bank, with no damage repaid. C. I. 454; C. G. 557; C. H. 370. If a river, having left its whole natural bed, forms a new bed for itself, the former bed left behind is divided among the proprietors of the fields of both old banks. C. I. 461; C. L. 2293. Cf. C. G. 563; C. A. 409, 410. A new island born in the middle of a river likewise belongs to the proprietors of the fields of both opposite banks, provided that the river is not suited to navigation or to carrying goods; otherwise the island belongs to the State, unless a contrary title or prescription is present. C. I. 457, 458; C. G. 560; C. H. 371, 373; C. A. 407 ff.; C. L. 2294, 2295. Born; for if it was made from a river flowing around a field, it remains his whose it was. C. I. 460; C. G. 562; C. A. 408; C. H. 374; C. L. 2296.

Inst. 1. 2. t. 1. §§ 20-24.

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.

591. • 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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

592. • 6. 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.

234. Accession is a mode of acquiring dominion, by force of which the owner of some thing, movable or immovable, legitimately acquires all those things which his thing produces, or which are united to it. - It rests upon these two principles: A thing fructifies for its owner; - the accessory follows the principal. - Hence the right of accession arises under a twofold head, from production and from union.

¹ Lugo, disp. VI, n. 153-174; Molina, Tr. II, disp. 57; Billuart, diss. IV, a. 2, § 8; Carriere, I, n. 369-394; Crolly, disp. XXVIII, n. 639-640; Kenrick, Tr. X, n. 67-74; Ball. P., n. 109-137; Lehmk., n. 916; Haine, q. 65-66.

I. Notions. 1. Accession is a certain increase of one's own thing, arising from the fact that another thing, not one's own, is joined to it, accedes to it (Cf. Ital. Code art. 443). - When that joining extends ownership, accession becomes a mode of acquiring, which nevertheless is easily reduced to occupation. This, however, happens both by nature and by positive law.

This acquisition is governed by a twofold principle: "a thing bears fruit for its owner"; that is, what a thing produces is of itself possessed together with the thing itself; and "the accessory follows the principal." The former principle is demonstrated by the law of nature itself, at least when no labor of another or thing of another has cooperated in the fructification, or, if there has been some cooperation, this has been compensated by a price; but the other principle rather supplies a reason for positive sanctions of laws. For of itself, the conjunction of an accessory thing with the principal would induce a certain co-ownership.

2. Accession, however, is distinguished as accession common to movable and immovable things; accession proper to movables; and accession which has place only in immovable things.

a) Accession common to movable and immovable things occurs by birth. "A thing bears fruit for the owner" of the fruit-bearing thing. The offspring of an animal belongs to the possessor of the one giving birth (and therefore of the female): "the offspring follows the womb." Likewise the fruits which nature alone, or the industry of men, or both causes together have produced, for example the fruits of a field, of a tree, etc., are assigned to the owner.

b) Accession proper to movables occurs either by simple joining, as when a gem is inserted into a necklace; or by specification, when the juridical species of a thing is changed, with some industry presupposed, as when a statue is made from marble; or by commixture (which is called confusion when liquids are in question), when several things are mixed in such a way that whose bodies are whose can no longer be discerned: as if two stores of wheat, or two wines, are mixed.

If these things have been done by common consent, attention must be given to the contract. Otherwise, they are governed by equity, which laws attempt to interpret for various cases, using this principle: "accession yields to the principal" (L. 19, § 13, 1). De auro, argento, XXXIV, 2).

c) Accession proper to immovables occurs by alluvion or by reliction, when waters either, little by little and imperceptibly, bring a hidden increase to a field; or recede gradually; or by an island formed (in the middle of the riverbed); or by a changed bed of a river; or by building, when a building is constructed with another's material, or is placed on another's soil; or by planting, when someone has planted certain things in another's ownership. Here too this holds: "It is fitting that the accessory follow the nature of the principal" (Reg. 42 Iur. in 6). But jurists must be approached.

d) But metallic veins, quarries, and sand-pits are governed by special laws for the common good. Nothing strictly prevents the State from claiming for itself the monopoly of exploiting them; but that this will yield to the common utility is rightly doubted. Similar things can be established concerning certain springs, for example petroleum-bearing ones, which begin to flow in some field.

R. P. Slater, p. 375, gives these examples of accession. The owner of a field acquires increases effected by alluvion; an island which appears in a river belongs to the owner of the riverbed. But if a river suddenly changes its bed, ownerships remain intact.

One who has built a house with another's wood acquires the wood, but must indemnify the owner. A painter becomes the owner of the canvas on which he has exercised his art, but he will have to repay the price of the canvas. By the introduction of a new form, as if you make bread, wine, or oil, the ownership of the thing effected will belong to the artisan, who will have to pay the price of the material. If liquid or solid things of several owners have been mixed, of themselves they must be separated; if this cannot be done, each obtains a right in the price of the thing in proportion.

5. You ask whether possession of the soil of itself grants a right to the things which are above or below? This is by no means effected by natural law; for by the same limits by which the kind of occupation is circumscribed, the very right of property itself is circumscribed.

But it happens that positive laws, for example the Italian Code art. 440; French art. 552, assign also the things which are above and below (le trefonds) to him who possesses the soil.

Positive Laws. 1. Concerning Latin law, after what has been said, nothing in particular is to be observed.

By Canadian law Q., for a sudden change of riverbed, rivers which are not in the ownership of private persons (those which can serve ships or the transporting of logs: flottables et navigables) are distinguished from others. In the former case, the abandoned riverbed belongs to the State; in the latter, to those who possess the fields invaded by the river. - Nor does the bad faith of the one effecting accession impede the transfer of ownership.

2. By German law these things are established. Fruits and things which are part of a thing belong to the owner of that thing even after separation (art. 953). Movable things which become one thing with an immovable thing in such a way that they are essential to it yield to the owner of the immovable thing. By the union of several movable things, co-ownership of several persons is effected, unless one thing is more principal. One who by his labor has introduced a new juridical species acquires the thing, unless the material was much more precious. But when the right of perfect ownership is extinguished, other rights in the thing are at the same time extinguished. But those who have been injured can demand compensation. Concerning alluvion, an island, etc., the various laws of the States must be consulted.

3. Concerning the law of England, observe this: by more recent statutes, which confirm the older custom, compensation for useful expenses is owed to him who withdraws from a house or field.

4. In the U.S.A., artificial accession does not change rights if it has been carried out without good faith. Moreover, the whole thing confused or commixed is assigned to him toward whom the one mixing was injurious. But before the sentence of a judge, one can stand by natural law. Cf. Garepy, n. 1506.

Concerning the obligation of conscience it will be enough to advise this: those laws, insofar as they at least supply the silence of natural law, or are applied by the sentence of a judge to the juridical relations of the parties, bind conscience.

⁶⁴

⁶⁴ In the German language it is said: Zuwachs, Verbindung, Vermischung, Verarbeitung.

56. Definition. Accession, as the discussion is here, is a legitimate mode of acquiring dominion of some thing acceding to a thing already legitimately possessed.

Only a few things must be said concerning this matter, since it has been wholly determined by modern civil codes, which, when a case occurs, must be consulted and also followed in conscience. The principles of natural law in this matter are: 1. If the things united can be separated without grave detriment, the individual things must be restored to their legitimate owners. 2. But if this cannot be done, "it is fitting that the accessory follow the nature of the principal";⁶⁵ but for the accessory thing thus acquired a suitable price must be paid. To this is added the adage: the thing fructifies for the owner.

Three species of accession are customarily distinguished, namely natural, industrial, and mixed, according as something else accedes to one's own thing either by natural powers alone (by birth, fructification, alluvion), or by human industry alone (by joining, mixture, specification, building), or from the influence of both.⁶⁶ Concerning the individual species, a few things:

1. Natural accession occurs:

a) by birth and fructification, when namely from a possessed thing another is born, for example a foal from a horse, grass from a field. The general rule is: "The offspring follows the womb," or whatever is born pertains to the owner of the one bearing or producing. Hence he who bought a cow which by mistake was not thought to be pregnant, but afterward bore a calf, acquired that calf also.

b) by alluvion, when by the force of waters an increase gradually (but not suddenly) accedes to some estate. In this case the statutes of modern laws must be observed.⁶⁷

2. Industrial accession occurs:

a) by joining, when two things pertaining to diverse owners are so united by human industry that they either cannot in any way, or cannot except with great detriment, be separated. In this case laws are accustomed to determine that the two things thus united pertain to that owner to whom previously the more principal thing was proper, according to the principle brought forward above: the accessory follows the principal.⁶⁸ Nevertheless that owner is then held to make the other owner unharmed. But which thing is more principal is at times by no means easy to define. Therefore positive laws must be attended to. An example of joining is: an image painted on another's canvas.

b) by mixture or confusion, when from two things equally principal that have been mixed, pertaining to diverse owners, one thing arises, for example two heaps of grain, or two swarms of bees flying together into one.

c) by specification, when someone constructs something new from another's matter, for example a statue from another's wood. Again, in practice positive laws must be attended to.

d) by building, if the owner of the land and the owner of the thing built are diverse. Generally the dominion of the land draws with it whatever is placed above or below it. Therefore the house belongs to him whose land it is, with due compensation having been provided.

3. Mixed accession especially occurs by planting and sowing, because then the two, namely nature and industry, coalesce into one. This accession is subjected to the same rules which are valid for building. Hence it is established according to the ancient verses:

Whatever is planted, sown, or built in,

All yields to the soil, if nevertheless it has put forth roots.

Note For Practice. When a case occurs, it is better to arrange the matter according to what is fair and good. But if this is impossible, the confessor can no longer do anything else, but must leave all things to the civil judge.

⁶⁵ Rule of law 28 in VI.

⁶⁶ Cf. Marc, Inst. mor. I, n. 887; Noldin, De praeceptis n. 394.

⁶⁷ Cf. German law: Einführungsgesetz art. 65; French law art. 556 sq.; Swiss law a. 659.

⁶⁸ Cf. Cod. civ. Germ. § 950; Cod. civ. Gall. a. 570; Cod. civ. Helv. a. 727.

220. Accession is an increase of one's own thing coming from the fact that another thing accedes to it and is joined to it. Hence, in the present matter, it is a special mode of acquiring dominion of a thing acceding to a thing legitimately possessed, from which it is produced or to which it is accidentally united by nature or art. Therefore a twofold accession is distinguished: one by production or fructification is improperly so called, for properly it is the right of using and enjoying, which is governed by the principle: the thing fructifies for the owner (n. 160); the other, properly so called, by accidental union, whether to a movable thing or to an immovable thing, constituted by industry or nature, is governed by the principle: the accessory follows the principal.

221. I. Concerning the right of accession from the production of fruits. - Principle: He who has of some thing either entirely full dominion, that is, of disposing and enjoying, or full useful dominion, that is, of perfectly enjoying, which is called usufruct, has a right to all the fruits of the thing,¹ with the burden, however, of paying expenses which have been made by others for obtaining them.² Thus according to the principle: The thing fructifies for the owner.

¹ C.C., a. 546.

² C.C., a. 548.

The fruits to which he has a right are of three genera:³

³ C.C., a. 547.

a) natural fruits, which are produced by nature alone and arise spontaneously without any or almost any labor, as the fruits of trees, grass, hay, and certain trees; to which, according to the civil code,⁴ the offspring of animals also belong;

⁴ A. 583. - Cf. Italian code, a. 443 sq.; Spanish, a. 353; Austrian, a. 405 sq.

b) industrial fruits, which are produced by the thing itself only through cultivation or by reason of greater labor, as crops, legumes, wine; hence they were called mixed by theologians, because they are generated partly by the nature of the thing, partly by labor;

c) civil fruits, which by a certain fiction of law and because of analogy are so called and are counted among fruits: for they are not born from the thing itself, but are revenues which come from a contract entered into concerning the thing, as the price of leasing, annual revenues, pensions, ordinary gain received from a loan.

Fruits of one's own industry alone must not be confused with industrial fruits; the thing is not the cause of these but only the occasion or condition, namely, they are produced not from the thing itself but only on occasion of the thing, so that another's thing is a mere instrument or quasi-instrument, and itself of itself contributes nothing to their production, as a painting made with another's brush, or business conducted with another's money. These in no way belong to the owner of the thing, but to the producer alone.

222. II. Concerning the right of accession from union to movable things. - This can happen in three different ways: by adjunction, specification, and commixture.

Adjunction is the union of two things belonging to diverse owners and so coalescing into one that they cannot be separated without detriment, for example, a jewel inserted into a gold ring, an image painted on another's canvas, a poem written on another's paper.

Specification is the artificial making from another's matter of some thing distinct in species from the former, for example, a statue made from another's marble, a garment or shoe from cloth or leather belonging to another.

Commixture or confusion is the joining of things equally principal belonging to diverse owners, as if two heaps of wheat, two metals, two casks of wine are mixed, or a thing is made from matter belonging to diverse persons.

Concerning these, the principles and rules are valid:

1. That right of accession is totally subordinated to the principles of natural equity, so that the rules to be handed down are mere examples.

2. In the case of adjunction, the whole thing belongs to the owner of the principal thing,⁵ provided he pays the price of the lesser thing; for the accessory follows the principal. The thing to which another is joined for use, ornament, or complement is held to be principal; if none can be considered as principal or accessory, that is held as principal which excels in price or volume.⁶ If, however, the added thing is much more precious than the principal thing, and was added to it without the owner's knowledge, he will be able to demand that it be torn away from the principal thing, even if it cannot be separated without detriment to this.

⁵ C.C., a. 565.

⁶ A. 566-569. - Cf. Italian code, a. 464 sq.; Spanish, a. 375 sq.; Austrian, a. 419 sq.; German, a. 948.

3. In the case of specification, the owner of the matter can reclaim the thing made, paying the price of the labor; unless, however, the work expended far exceeds the price of the matter: then the craftsman can retain the thing, paying the price of the matter, as if from cheap wood a very beautiful statue had been sculpted.⁷ By Dutch, German, and Spanish law, the owner of the form can preserve the thing, the price of the matter having been paid, unless bad faith intervened or the value of the matter is greater.

⁷ A. 570-571; likewise Italian code, a. 468 sq.

4. In the case of commixture or confusion, the things mixed become the common property of the owners, according to the proportional part of each. Hence, if they can be separated, his own part must be returned to each owner; otherwise either the mixed things must be divided according to the proportion of quantity, quality, and value of each owner, or the whole must be sold so that the money may be divided according to the proportional part of each. If, however, the matter of one greatly surpasses the matter of another in quantity or value, the owner of the more excellent matter can reclaim the whole thing, paying the other the price of the matter which belongs to him.⁸

⁸ A. 572-575. - Cf. Italian code, a. 472; Austrian, a. 414; Spanish, a. 382; German, a. 947.

5. Besides these general rules received in every law, special rules also must be held, if any are handed down by law.

Thus from our Civil Code: a. When the thing remains common, it must be sold by bidding for the common utility of both owners (a. 575).

b. Whenever the owner of the matter from which, without his knowledge, a new species has been made can vindicate his matter, he can at his pleasure reclaim matter equal in every respect, or its price (a. 576).

c. He who has consumed another's matter without the owner's knowledge can be compelled by a judge to repair even the damage which the owner has suffered (a. 577).

223. III. The right of accession from union with immovable things made by the industry of man. - The principle is valid: the dominion of land draws with itself the dominion of those things which are built, planted, and sown on it, or are made on it, even by others, because they are presumed to have been made by the owner and at his expense;⁹ yet it is equitable that he who in good faith has made something on another's land receive compensation for the labor or matter used insofar as the owner has become richer thereby, just as it is also owed that he who on his own land has made something from another's matter compensate the other.

⁹ C.C., a. 552-553. - Cf. Italian code, a. 477 sq.; Spanish, a. 358 sq.; Austrian, a. 417 sq.; German, a. 946.

Moreover, in the application of the principles, the special statutes of civil law must be considered. Thus, for example, in our Civil Code:

1. If someone builds on his own land from another's materials, he must pay the price of the matter and can be condemned to repair damages, but the owner of the matter does not have the right of destroying such a building (a. 554).

2. If someone from his own materials builds on another's land, and indeed in bad faith, knowing it to be another's land, he can be compelled to remove the building at his own expenses and to repair damage if any has been brought; but the owner of the land can retain the building, paying the price of the matter and labor, no regard being had to the value perhaps increased (a. 555).

3. But if a possessor in good faith has so acted, he cannot be compelled to remove the building; but there is given to the owner of the land the option of paying either the price of the matter and labor, or at least the increase of value which from that building has accrued to his land (a. 555).

The reason for this last is because one person is not held to bear all damages. He who acted in good faith does not deserve a penalty; since nevertheless perhaps there is damage, it is equitable that both should undergo something of the damage, because the owner of the land ought not bear all.

224. IV. The right of accession from union with immovable things accomplished by the work of nature. - It can happen by alluvion or reliction, or by avulsion or change of river-bed.

Alluvion or reliction is a hidden increase which, by the force of the waters of any river naturally and continuously flowing, gradually accedes to some estate, according as the course of water brings new matter or leaves behind parts previously watered. Avulsion or change of river-bed is had when by a sudden force of waters a great part of some estate is torn away from it, or a river, its course having changed, leaves its bed and chooses a new one for itself. On occasion of these, sometimes there is the formation of a new island. This right varies more than the preceding according to the diverse laws of States;¹⁰ nevertheless, for the most part the following rules are valid:

¹⁰ French Code, a. 556-560; Italian Code, a. 453-461; Spanish Code, a. 366-373; Austrian Code, a. 407-412; German Code, a. 65 sq.

1. What by alluvion or reliction gradually accedes to the adjacent bank by the river's bringing or receding is legitimately acquired by the owner of the adjacent bank, because nature brings it to him.¹¹

¹¹ C.C., a. 556-557.

2. On the contrary, as to alluvions of the sea, lakes, and ponds, there is no right of accession, so that the limits of dominions remain as they were before.¹²

¹² C.C., a. 557-558.

3. What by avulsion and by the sudden force of waters is torn away in notable part from an estate is not acquired by the adjacent estate, but can be claimed by the owner, provided he does it within the time determined by law,¹³ namely, within a year.

¹³ C.C., a. 559.

4. The river-bed which, the bed having changed, has been abandoned by the river is acquired by those whose estates have been taken by the river, as an equitable compensation of damage to be divided among them according to proportional part.¹⁴

¹⁴ C.C., a. 563.

5. Islands formed in small rivers are acquired by the dominion of the nearer bank; or, if situated in the middle, they are divided between the riparian dominions from each side according to the middle line of the river.¹⁵ But those which are formed in a greater river, namely, one apt for navigation or for transporting things, cede to the republic, which has the right of dominion over these rivers, unless there is a contrary title or prescription.¹⁶

¹⁵ C.C., a. 561.

¹⁶ C.C., a. 560.

Dominion can chiefly be acquired: 1st. by occupation; 2nd. by prescription; 3rd. by accession; 4th. by contracts. Concerning contracts we shall treat in the particular tractate; but now only concerning the first three modes of acquiring dominion.

Occupation is the real apprehension of a thing capable of dominion with the intention of acquiring it for oneself. Wherefore five conditions are required; for on the part of the subject it is required 1st. that some external act be posited, because a simple desire or intention is not sufficient; and 2nd. that there be the intention of acquiring dominion. But on the part of the object it is required 1st. that that which is apprehended be some corporeal thing, as, e.g., some part of land; 2nd. that that thing be capable of dominion, of which sort certainly the ocean or air is not; 3rd. that besides it belong to no one, because a right cannot arise against a pre-existing and remaining right. - Many theologians also require that the occupation not be prohibited by some positive law which reserves the thing to another owner, e.g., the State; but this condition is contained in the others.

I say. All the aforesaid conditions having been verified, occupation is a legitimate mode of acquiring dominion. The reason is taken both from the right of nature and from the practice and positive right of all nations.

Since the more frequent cases of acquiring dominion by occupation occur concerning animals and found things, we shall speak only of these.

Animals are distinguished into three kinds, namely wild, tame, and tamed. - Wild or undomesticated animals are those which by nature live freely outside the society of man, such as hares, stags, fish, birds, etc. Tame or domestic animals are those which have a natural accustomed association with man, and return to him of their own accord, such as sheep, horses, hens, etc. Tamed animals are those which indeed are born to natural liberty, yet by man's industry are deprived of it, and become accustomed to his society, such as birds which are tamed by art and industry, doves, bees, etc. Many add a fourth class, namely those gone wild, which either have now put off a connatural tame disposition, or after they were tamed have resumed their former wild one. - Cf. Baller., note (a) and (b), p. 500.

I say 1st. Wild or undomesticated animals become the property of the first occupier, because they belong to no one, and otherwise their occupation is licit by natural right. But if they have been reduced into someone's dominion, they belong to him as long as they are kept in custody and have not recovered natural liberty. But they are considered to have recovered liberty when they have escaped custody in such a way that pursuit of them is difficult; and then they so cease to be under dominion that they can become the property of another occupier, just as if they had never had an owner.

I say 2nd. Animals wild by their own nature, but tamed, remain with the prior owner as long as they have not escaped his custody or have not lost the custom of returning; for animals of this kind belong to the possessor both by reason of occupation and also by reason of training and detention. But if they have escaped the custody of the owner or have lost the custom of returning, they become the property of another first occupier, because they have recovered their first nature.

I say 3rd. Tame or domestic animals always belong to the first owner, however much they wander; whence they cannot be occupied by another. The reason is that domestic animals can never be said to have recovered their liberty, since from their own nature they are judged to have no liberty.

You Will Resolve. - 1st. A swarm of bees which has flown out from your hive is yours up to that point as long as it remains in your sight and pursuit has not become difficult for you; otherwise it becomes the property of the first occupier. Yet he who finds in another's field a tree in which a swarm of bees is contained does not by this already acquire dominion, but it is necessary that he enclose them in a hive. - Cf. Kenrick, loc. cit. n. 56. - Kent, Comment., vol. 2, part 5, lect. 35, n. 350.

2nd. Doves going off by their own movement, without having been attracted by fraud, become the property of him in whose dovecote they settle. Otherwise if they have been attracted by fraud, e.g., by wholly extraordinary or very choice food. Cf. Lugo, disp. 6, nn. 42 and seq.

3rd. Fish which are in the sea or in navigable rivers and into which the tide of the sea ascends, belong to those taking them; but in lesser rivers the right of fishing is generally reserved to neighboring owners of the banks. - Cf. Kenrick, loc. cit. n. 57. - Kent, Comment., vol. 3, part 6, lect. 52, nn. 411 and seq.

4th. He violates justice who takes oysters in that part of rivers where they have been reserved by another, or in which someone has an exclusive right of fishing; for through this they are reputed enclosed.

5th. He does not sin against commutative justice who hunts or fishes on another's land without his license, provided nevertheless that the land is accessible, or, if it is enclosed, is of such extent that individual animals can easily escape the hunter or fisherman; because animals of this kind are neither part of the land nor can they in these circumstances be considered as already apprehended by the owner of the land. - Cf. Lugo, disp. 6, n. 72.

6th. A wild animal wounded or caught by a snare belongs to the one wounding or to him who set the snare, if it is so wounded or caught that it is not going to escape, because then, and not otherwise, it will be said to have been apprehended. - Thus the theologians, with whom our Kent agrees, who says: "The possession must be so far established by the aid of nets, snares, or other means, that the animal cannot escape." - Cf. St. Alphonsus, n. 604; and Hom. Ap., n. 71. - Kent, Comment., vol. 2, part 5, lect. 35, n. 348.

Goods which can be found are distinguished into four kinds, namely: treasures, things recently lost, abandoned goods, and vacant goods. It will be said in particular concerning each what they are and to whom they belong.

I. Treasure from Roman Law is a hidden sum of money, of which no memory exists. But according to the laws of many nations, just as among us, by the name of treasure today is understood not only money, but also any other hidden movable thing estimable in price. - Wherefore Kent says: "Goods found hidden in the earth go under the denomination of treasure-trove." - Cf. Kent, Comment., vol. 2, part 5, lect. 35, n. 358. - Kenrick, loc. cit. n. 61. - Crolly, vol. 1, n. 641.

I say 1st. Treasure by natural right certainly belongs to the finder, if the finder is also the owner of the land. But if treasure is found on another's land, indeed much is disputed, but a probable opinion holds that then also the treasure belongs to the finder. The reason is that treasure cannot be held as a part of the land, and therefore the same must be established concerning it as concerning wild animals captured on unenclosed land.

I say 2nd. From Roman Law treasure also belongs to the finder if the finder is at the same time the possessor of the land where the treasure lay; otherwise it must be seen whether he found the treasure by chance or by industry. If by chance, he has a right to the half part; if by industry, the whole treasure yields to the owner of the land. Yet observe 1st. that there is required a sentence of a judge which declares industry to have been present, in order that the finder be held to hand over to the owner of the land that half part of the treasure which, if industry had been lacking, he could have retained for himself; 2nd. that owner of the land here means the one who has direct dominion; 3rd. that the finder is considered not the one who first touched the treasure, but the one who saw it or rendered it visible.

I say 3rd. From English law all treasures belong to the king, not only when they are found in some part of the national dominion, but also when they are found in some private field. Indeed, formerly those who hid found treasure were punished with capital punishment. Yet that law seems to be only penal; for, as Crolly notes, scarcely today is there a man of timorous conscience who would not retain found treasure. - Cf. Crolly, n. 642.

I say 4th. As regards this region, excepting Louisiana, where the dispositions of Roman and French law are in force, in the other States the laws establish nothing concerning treasure, and therefore the question is to be solved according to the norm of natural right, which always favors the finder. - The State of New York had imitated English law in this matter; wherefore every treasure found there belonged to the treasury, but this disposition was omitted in the revision of the laws of that State. - Cf. Kenrick, loc. cit. n. 61. - Kent, Comment., loc. cit. n. 358.

From the things said you will gather 1st. that little stones, gems, amber, coral, found on the shore of the sea or elsewhere, belong to the finder, because these are not part of the land; 2nd. that mines of iron, lead, coal, silver, gold, etc., belong to the owner of the land, both because these are considered part of the land and because our laws and customs so establish. - Cf. Kenrick, n. 59.

II. Things recently lost are those movable goods which are involuntarily left by the owner. They differ from treasure both because they are not hidden or buried, and because ordinarily they have been recently lost.

I say. It is certain that things recently lost are to be returned when the owner appears, because the fact of loss is not a title for stripping an owner of his thing. Moreover, from the saying received by all, "for retaining, intention alone suffices; but for occupying, real apprehension with a legitimate intention of having is required," it follows both that the owner has not lost the right, because he retained the intention, and that the finder has not acquired it, because the occupation was not legitimate.

Question 1. To what is the finder held immediately after the finding of the thing?

Response. Often he is held by charity to take up the thing lest it perish, and thus to avert the harm of the owner. But, the thing having been taken up, he is held by justice to care for it; for then between him and the owner there arises a quasi-contract which is called management of affairs. He is also held by justice not only not to conceal the thing, but also to apply suitable means by which the owner can be found; but those means are called suitable which are proportionate to the value of the thing and the circumstances of time, place, and persons. - Cf. Baller., note (a), p. 504.

Question 2. Whether, suitable means having been applied for discovering the owner, and he not appearing, you can retain the found thing?

Response. It is controverted; for many judge that the found thing must then be expended for the poor or for other pious uses, because the owner, since he still retains right in his thing, is to be presumed to have this will. - But other theologians say more probably that the owner has then wholly lost the faculty of using his own thing, and therefore no longer has dominion of it. Therefore the will of the prior owner is not to be sought, as of one who, having morally lost dominion, can dispose of nothing concerning it. Therefore that thing is morally to be held as abandoned and capable of becoming the property of the first occupier; and therefore if afterward the owner appears, since the thing has already been consumed, the price is not to be restored. - Cf. St. Alphonsus, n. 603. - Lugo, disp. 6, n. 140. - Lacroix, lib. 3, part. 2, n. 86. - Kenrick, loc. cit. n. 62. - Crolly, n. 415. - Kent, Comment., vol. 2, part 5, lect. 36, n. 356.

III. Abandoned goods are called those which the owner has cast away with the intention of no longer possessing them. This casting away can happen in two ways: either positively, when someone sends away among useless things clothing already worn out, perforated shoes, or something similar; or negatively, when someone gathers those things which he desires to retain, caring nothing about the rest, as, e.g., happens concerning ears of grain and grapes after harvest or vintage.

I say. Abandoned goods, whatever the manner of abandoning may be, licitly become the property of the first occupier. The reason is that as soon as they have been abandoned, they have become goods of no one, and therefore capable of occupation. Yet the custom of the region is to be regarded when the discussion is about goods abandoned negatively, because from custom it is known whether the owner had the intention of casting away dominion.

You Will Ask. Whether those things which are found in the sea, or near the bank after shipwreck, or cast away from fear of it, are to be reputed abandoned goods?

Response. Negatively; and the reason is that the owner did not have the intention of casting away those goods, and he always retains the hope of recovering them at least partially. Positive laws also stand in the way. Hence the supreme assembly of the United States in the year 1825, sect. 9, established: "If any person shall plunder, steal, or destroy any money, goods, merchandise, or other effects, from or belonging to, any ship or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked ... every person so offending shall be guilty of felony, etc." It is said in the question after shipwreck or cast away from fear of it, because goods which were voluntarily left for saving life or the ship (derelict at sea) are to be distinguished from those (wrecks) which come from the breaking of the ship without any act of the will. - But the response applies to both cases. - Cf. Kenrick, nn. 65 and 66.

IV. Vacant goods are all those which are left by a deceased person who neither has heirs nor made a testament.

I say. By natural right vacant goods become the property of the first occupier, for they no longer have any owner. But by positive right, also prevailing among us, these goods are adjudicated to the treasury; but this seems to be restricted to immovables only, at least before the sentence of a judge. - Cf. Carriere, nn. 285 and 359. - Kenrick, n. 63.

You Will Ask. What must be said concerning the goods of foreigners who have died in this region without a testament, but nevertheless have natural heirs?

Response. Those goods certainly cannot be called vacant, because although in some States they are adjudicated to the treasury, nevertheless by natural right they pass to the heirs. - I said in some, because in Maryland, Pennsylvania, Illinois, and Ohio those goods are distributed to the heirs after the manner of goods which belong to citizens. Where this liberality of laws is not in force, Kenrick thinks that those natural heirs are obligated only in the external forum not to receive those goods. - Cf. Kenrick, n. 64. - Kent, Comment., vol. 2, part 4, lect. 25, nn. 61 and 70.

Prescription is a means instituted for acquiring some right or for freeing oneself from some obligation, under conditions established by law. Hence it is clear that there is a twofold prescription by reason of matter: one acquisitive, by which some right is acquired; the other liberative, by which someone is freed from some burden or servitude. Although indiscriminately each is called prescription, nevertheless in law the first is called usucapio, and the second simply prescription. - Cf. Scavini, lib. 2, n. 386.

I say. Prescription clothed with the due conditions is a legitimate means of acquiring dominion, even in conscience; for not only civil and canon law in very many places hold it as legitimate, but natural right also, although not immediately, seems to require it, both for establishing certainty of the dominion of certain things, and thus for putting an end to lawsuits, and for preventing the negligence of owners. Wherefore, according to St. Thomas, if someone has truly prescribed, he is not held to restitution if afterward the former owner appears. The Church receives prescription, as a mode of acquiring and of freeing oneself, according as it is in the civil legislation of the respective nation, for ecclesiastical goods, with the prescription of the canons which follow being saved (Can. 1508). - But the conditions for prescribing legitimately are five, namely, aptitude of the thing, good faith, title, fact of possession, and the time required. These conditions are altogether necessary, and indeed understood according to the laws of the place in which prescription takes place. The reason is that the immediate force for transferring dominion through prescription is taken from human law. Cf. St. Thomas, Quodlib. 12, q. 16, art. 24. - St. Alphonsus, nn. 504, 507, and 517.

The conditions for prescribing are usually expressed by these little verses:

You will not take by use, unless these five things be yours: Let there be an apt thing, faith, title, possession, time.

A few things must be said concerning each.

All and only those things generally are subject to prescription which come under dominion and private commerce, and for the acquisition of which there can be a title that is legitimate both by the right of nature and by positive right. - For since the end of prescription is to transfer dominion by the authority of law, such a transfer cannot be made concerning a thing which from its own nature or from the disposition of laws cannot come into the dominion of private persons.

The following are not subject to prescription:

1st. Those things which are of divine right, whether natural or positive;

2nd. Those things which can be obtained from apostolic privilege alone;

3rd. Spiritual rights, of which laypersons are not capable, if there is question of prescription for the advantage of laypersons;

4th. The certain and undoubted boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys, or prelatures nullius;

5th. Alms and burdens of Masses;

6th. An ecclesiastical benefice without title;

7th. The right of visitation and obedience, so that subjects can be visited by no Prelate and are no longer subject to any Prelate;

8th. The payment of the cathedraticum (Can. 1509).

§ 1. Sacred things which are in the dominion of private persons can be acquired by prescription by private persons, who nevertheless cannot employ them for profane uses; but if they have lost consecration or blessing, they can freely be acquired even for profane uses, yet not sordid ones.

§ 2. Sacred things which are not in the dominion of private persons can be acquired by prescription not by a private person, but by an ecclesiastical moral person against another ecclesiastical moral person (Can. 1510).

Good faith in this matter is conscience or sincere estimation by which someone judges that the thing possessed by him is his own.

I say. Good faith is altogether required not only for acquisitive prescription, but also for liberative prescription. The reason is that formal injury cannot pass over into right; wherefore St. Thomas says: "those things which cannot be without sin are strengthened by no prescription." - This is confirmed from the 2nd rule of law in 6, which reads thus: "A possessor of bad faith prescribes at no time."

No prescription is valid unless it rests upon good faith, not only at the beginning of possession, but through the whole time of possession required for prescription (Can. 1512).

Nevertheless, if the discussion is about prescription for freeing you from some passive servitude of rural estates, good faith consists in this, that no obstacle be placed by which another is impeded from the use of his right. The reason is that the one prescribing is bound by no debt toward him against whom he prescribes; nor is he held, while the time of prescription is running, to warn the other to use the right of servitude against him. I said of rural estates, because in urban servitudes, since one cannot prescribe against them without some positive act of the one prescribing, it is required that this be placed with good faith.

Hence it follows that the dispositions of civil law, insofar as they do not require good faith, or require it only at the beginning of possession, have no force for the internal forum, and are to be held as a mere denial of recourse, that is, of action against another.

You Will Ask. Can an heir who is ignorant of the bad faith of his predecessor ever legitimately prescribe?

Response. Negatively, as it seems, if he succeeds by universal title, because an heir of this kind so represents the person of the deceased that he succeeds to all his obligations and burdens; and therefore, since the predecessor on account of bad faith could never have prescribed, neither will the heir be able, because that radical defect is transmitted to him. And the same must more probably be said concerning one who succeeds mediately, provided nevertheless that the succession is by universal title. - Cf. St. Alphonsus, nn. 512 and 516. - Lugo, disp. 7, nn. 59, 60, and 61. - Baller., note (b), p. 516.

Title is that upon which the transfer of dominion rests, and it answers the question: why do you possess? Omitting here both true title, about which there can be no controversy, since no one prescribes against himself, and defective title, which, since it lacks some condition required by law, can be of no utility, three other titles are enumerated, namely colored, putative, and presumed. The first is the appearance of a cause sufficient of itself for transferring dominion, but laboring under a hidden nullity, e.g., if I buy a thing from Titius, thinking it to belong to Titius, when it belongs to Martin. The second is present when it is prudently believed that a true title intervened, although it did not intervene, e.g., if a son from inheritance possesses a thing which is thought to have been bought by the father, when it had not been bought. The third finally is reduced to length of time. - Cf. Scavini, lib. 2, n. 388.

I say. Colored or putative title is required for prescription and suffices: at least one is indeed required, for if both are lacking, good faith also will be lacking, without which prescription is not had; but one of the two suffices both because thus good faith is preserved, and because otherwise true title would be required, which is absurd. Wherefore presumed title is either reduced to putative title, if the discussion is about prescription of the longest time, or it will be valid only for the external forum; for prescription in the forum of conscience without good faith, as has already been said, is repugnant; on the other hand, good faith is not possible when only presumed title is present, especially after a brief time from the beginning of possession. - Cf. Baller., note (b), p. 509; and (c), p. 511.

Possession is the holding of a thing, or the enjoyment of a right, which someone exercises by himself or through another, yet in his own name. Holding of a thing is called possession simply, and enjoyment of a right quasi-possession. Each is divided into natural, civil, and mixed. Cf. Schmalzgr., lib. 2, tit. 12, n. 4. - Baller., note (a) and (b), p. 508.

I say. Possession is altogether required for prescription, which is clear both from the 3rd rule of law in 6: "Without possession prescription does not proceed"; and from the very nature of the thing. But in order that it be apt for prescribing, it must enjoy various conditions; namely, it must be 1st. dominative, or the thing must be had with the mind of a proprietor, but not of a depositary, lessee, etc.; 2nd. tranquil, so that no joinder of issue concerning the thing has intervened; 3rd. certain, that is, not equivocal; 4th. continued or not interrupted, until the required time is completed. - Many also require that it be public, namely that the thing not be hidden from him against whom prescription is made; but this condition is necessary only for the external forum, because for the internal forum it is already contained in good faith.

It is certain 1st. that some time is required for prescription, as is clear both from the word usucapio itself and from all positive laws; 2nd. that in fact this time is longer or shorter according to the diversity of laws and the nature of the thing subject to prescription; for movables, generally speaking, are prescribed more quickly than immovables.

In this region, given the multiplicity of States which make their own laws for themselves, there is great variety in the duration of the time required for prescribing. Wherefore for immovable goods in the State of Maine 40 years are required; in Alabama and Louisiana, 30; in Kansas, Nebraska, Ohio, Pennsylvania, 21; in Connecticut, Vermont, and Virginia, 15; in Indiana, Michigan, Mississippi, and Nevada, 10; in Florida, Georgia, N. Carolina, S. Carolina, and Tennessee, 7; in California, 5; in the other States, 20. But for movable goods still less is required. Cf. Wells, Every Man, etc., p. 321. - Bouvier, Law Dictionary, under the word Limitation.

In the new Code a distinction is made:

§ 1. Immovable things, precious movables, rights and actions, whether personal or real, which belong to the Apostolic See, are subject to prescription by the space of one hundred years.

§ 2. Those things which belong to another ecclesiastical moral person, by the space of thirty years (Can. 1511).

You Will Ask. When is prescription called interrupted, and when suspended?

Response. It is called interrupted when, on account of an impediment interposed, it so ceases that it must be begun again. But this can happen in a twofold way: 1st. naturally, if the one prescribing loses possession for the time determined by law, or if bad faith supervenes; 2nd. civilly, if a lawsuit is juridically moved concerning possession, and the interpellation has not been rejected by the judge. - But it is called suspended when an impediment is set against it so that it does not proceed further, and this can happen in two ways: 1st. by reason of persons, as, e.g., minors, the insane, captives, and generally all who, whether from the right of nature or from the disposition of positive law, cannot act against one willing to prescribe; 2nd. by reason of some extrinsic cause, e.g., plague, war, etc., which makes it so that a person otherwise capable cannot act. - Cf. Wells and Bouvier, loc. cit.

Accession is a mode of acquiring dominion in some thing, because that thing is added to our thing; this can happen either with nature alone operating, or by art, or by both at once. Hence a threefold accession is distinguished: natural, artificial, and mixed.

I. Natural accession happens in two ways: 1st. by birth, or when another animal is born to our animal from intermixture with another's: in this matter the axiom is, the offspring follows the womb; 2nd. by alluvion, which, if it is slow and extends my land either by the bringing of new earth or by the recession of a river, that addition will belong to me; but if it is sudden, ownership is no longer computed to the middle line of the water, but to the former limits.

II. Artificial accession can also happen in two ways: 1st. when my art or work is joined with the thing of another, which is called accession by specification, and then if this has been done in good faith, generally speaking among us, that which results through such specification will be given to him who performed the work, with the burden of paying the price of the thing to the other; 2nd. when my work and my thing at the same time are joined with the thing of another, and then either accession by adjunction is had, if that which results can in no way be separated, as would be a painting with my colors and made by me on your wall, in which case the thing belongs to him who placed the more precious element; or accession is had by confusion or commixture, as, e.g., if from my grapes together with yours I made wine, or from my ears of grain and yours I gathered wheat, and then, good faith standing, the thing must be divided according to the principles of equity; otherwise the laws favor him who has suffered injury.

III. Mixed accession is had when, with nature and art operating at the same time, some thing accedes to my thing; e.g., if you should plant your trees in my land: moreover, in this case the thing will belong to the owner of the soil, due compensation having been furnished. Hence the two following verses:

Whatever is planted, sown, or built, Everything yields to the soil, if nevertheless it has put forth roots.

Yet observe that if the discussion is about those who among us are commonly called squatters, Kenrick says that the laws favor them, lest fields lie uncultivated. Cf. Kenrick, nn. 67 and seq. - Bouvier, Law Dictionary, under the word Accession.

[By the name of accession is understood the right by which the owner of the principal thing becomes owner of the accessory thing, that is, of all things produced from some thing, or naturally or artificially united to it.

Accession is either natural, or industrial, or mixed.

I. — Natural accession occurs : 1° By birth, namely when from your animal another is born, conceived indeed of a male belonging to another. For the axiom holds : « The offspring follows the womb. » — 2° By fructification, that is, the production of fruits from land without human industry. — 3° By alluvion, when by the force of waters an increment gradually accedes to your field. But if a notable part of someone's land suddenly accedes to another's field by avulsion, the former owner of it does not lose dominion if he exercises his right within the useful time²⁸². ²⁸² Cod. Gall., art. 546 seqg. ; Ital., art. 444 seqg. ; Austriac., art. 404-422 ; Boruss., I, 9, § 220 et 324 ; Angl. Crolly, n. 639.

II. — Industrial or artificial accession can occur : 1° By building, when one builds on his own land with another's materials, or on another's land with his own materials. Then in general the building is his whose the land is, due compensation being made to him who built in good faith²⁸³. Yet on this matter the laws of each region are to be consulted^{284 283} S. Lig., lib. IV, n. 500. ²⁸⁴ Cod. Gall., art. 555 ; Ital., art. 449 ; Austriac., art. 417-419 ; Boruss., I, 9, § 327.

• 2° By specification, when to pre-existing matter a new form or species accedes, v. g., if from wool belonging to another you have made a garment, or from another's wood or gold a vessel. By common law, the new species accrues to the artisan, the price of the material being paid, if it cannot be reduced to its prior form, and in conscience probable good faith is required : otherwise the thing accrues to the owner of the material, v. g., a golden vase²⁸⁵. Under the new laws, in either case the thing accrues to the owner of the material, unless the work of the artisan far exceeds the material in price²⁸⁶.

²⁸⁵ S. Lig., lib. IV, n. 496. ²⁸⁶ Cod. Gall., art. 570 and 571 ; Ital., art. 468 ; Austriac., art. 415 ; Boruss., I, 9, § 298.

— 3° By adjunction, when someone's thing is so joined to another's thing that together they make one whole ; in which case the whole composite pertains to him whose thing is considered as something principal, who however must make the owner of the accessory part whole. So a usufructuary who has painted the walls of a house cannot erase the painting with damage to the walls. Conversely, a painter who has expressed an outstanding image on another's canvas can keep the painted canvas, its price being paid ; for, as Justinian says, Instit. book II, tit. 1, n. 34, « it is ridiculous that the painting of Apelles should pass as an accession to the cheapest board. » So by the law of almost all peoples^{287 287} Cod. Gall., art. 566 ; Ital., art. 484 ; Boruss., loco cit.

— 4° By commixture, when solid things, and by confusion, when liquid things belonging to different persons are joined. By Roman law, if commixture or confusion has been made of several things of different genus, from them a new species arises, which falls under the principle of specification expounded above. But if no new species has been made, and the commixed or confused things can be separated without becoming worse, each must be separated for its own owner. Otherwise, each will have a right in the whole mass, according to each one's portion or price²⁸⁸. According to the new laws, the thing becomes common, and must be sold under the hammer, and the price divided, unless it has been otherwise stipulated among the owners. ²⁸⁸ S. Lig., lib. IV, n. 498.

But if one part is principal, and much exceeds the others in price or quantity, it is licit for its owner to vindicate the whole to himself, a just price being refunded to the others²⁸⁹. ²⁸⁹ Cod. Gall., art. 573 and 574 ; Ital., art. 472 and 473 ; Austriac., art. 414 ; Boruss., I, 9, § 298-323.

III. — Mixed accession occurs especially by planting and sowing. It is called « mixed, » because nature and industry concur in this. It is subjected to the same rules²⁹⁰ as building²⁹¹. ²⁹⁰ S. Lig., lib. IV, n. 501, ex iure Rom. ; Cod. Gall., art. 553-555. ²⁹¹ Marc. Instit. morales Alphons., n. 887-889.

VI. Accession is that which adds something to your thing. It is twofold. The one is natural, such as are the offspring of a handmaid, of flocks, of plants which are born on one's own land. The other is artificial, or industrial, such as is that which is made by painting, by building, by writing, by weaving in, by grafting, and the like. The lord of the handmaid, of the land, and so forth, is the lord of the fruits.

3. Accession is a title to new property that is added to my former possessions, either naturally, e. g., by birth, as with the young of cattle, or by alluvion, as by deposits of soil on a river bank; or accidentally, or even designedly, as when another plants or builds on my grounds, or in other ways improves my property. In these instances, disputed claims may arise which the civil law is to decide.

Soft Socialism, as the species has been nicknamed, sums up its policy in the formula: “ From each according to his ability, to each according to his want.” The sentiment as expressing the ideal to which we may all aspire, and toward whose realization we may all work by the lawful means at our disposal, is quite admirable, and leaves nothing to be desired. There are, however, many obstacles to its realization in this workaday and selfish world, and prominent among them is the actual organization of social life. The militant school of socialism therefore acknowledges that much pulling down and other rough work must be done before we can hope to establish the socialist paradise on earth. These militant socialists also have their formulæ, and at the root of them all is the claim of the laborer to the whole product of labor. H. S. Foxwell, Professor of Economics at the University of London, in his interesting introduction to Dr. Anton Menger’s book on the right to the whole produce of labor, does not hesitate to make this assertion: “Dr. Menger does not exaggerate when he says of this principle that it is the fundamental revolutionary conception of our time, playing the same part as the idea of political equality in the French Revolution and its offshoots” (page 6). Dr. Menger discovers scattered suggestions of the doctrine in Locke’s Two Treatises of Government, and it is laid down with sufficient clearness in Adam Smith’s Wealth of Nations. “The produce of labor,” says the father of modern political economy, “ constitutes the natural recompense of wages of labor. In that original state of things which precedes both the appropriation of land and the accumulation of stock, the whole produce of labor belongs to the laborer. He has neither landlord nor master to share with him.” The writers of the classical school of political economy accepted the doctrine and developed it. Ricardo, for example, quotes the following extract with approval from Adam Smith: —

In that early and rude state of society which precedes both the accumulation of stock and the appropriation of land, the proportion between the quantities of labor necessary for acquiring different objects seems to be the only circumstance which can afford any rule for exchanging them for one another. If among a nation of hunters, for example, it usually costs twice the labor to kill a beaver which it does to kill a deer, one beaver should naturally exchange for, or be worth, two deer. It is natural that what is usually the produce of two days’, or two hours’ labor, should be worth double of what is usually the produce of one day’s or one hour’s labor.

Ricardo then adds : —

That this is really the foundation of the exchangeable value of all things, excepting those which cannot be increased by human industry, is a doctrine of the utmost. importance in political economy; for from no source do so many errors and so much difference of opinion in that science proceed, as from the vague ideas which are attached to the word value. If the quantity of labor realized in commodities regulate their exchangeable value, every increase of the quantity of labor must augment the value of the commodity on which it is exercised, as every diminution must lower it. ... If we look to a state of society in which greater improvements have been made, and in which arts and commerce flourish, we shall still find that commodities vary in value conformably with this principle: in estimating the exchangeable value of stockings, for example, we shall find that their value, comparatively with other things, depends on the total quantity of labor necessary to manufacture them, and bring them to market.

Classical political economy reached its highest point of development in the writings of John Stuart Mill. He acknowledged that the question of value is fundamental in political economy: —

The smallest error on that subject [he said] infects with corresponding error all our other conclusions; and anything vague or misty in our conception of it, creates confusion and uncertainty in everything else. Happily [he adds] there is nothing in the laws of value which remains for the present or any future writer to clear up; the theory of the subject is complete.

He therefore accepted the teaching of Ricardo, but thought that besides the quantity of labor the wages also of labor must be taken into account. Seldom, perhaps, has such expression been given to smug contentment and satisfaction; seldom certainly has smug contentment and satisfaction met with so serious a reversal as has the classical theory of value. Certain English revolutionists and socialists who lived at the end of the eighteenth and the beginning of the nineteenth century, were not slow to appropriate the doctrine of the classical economists and apply it to their own purposes. They began to point out that if the value of things was nothing but the quantity of labor put into them, and the laborer had a right to the fruit of his own labor, all the wealth of the country of right belonged to the workers, who by their labor produced it. Dr. Menger traces this doctrine and its application to anarchism and socialism through a succession of English writers, of whom the chief are William Godwin, Charles Hall, and William Thompson. In a very interesting passage, Professor Foxwell regards modern socialism as a protest against the exaggerated individualism introduced into European society at the Renaissance, and especially by the Protestant Reformation. Nowhere at the opening of the nineteenth century was that individualism more pronounced and the consequent sufferings of the masses of the people more severe than in England. It was natural, then, that the swing of the pendulum to the opposite extreme should first be observed in England, the home of laissez faire, and of the bourgeois political economy, as Marx called it. From English socialists the doctrine of the right of the worker to the whole produce of labor was taken over by Marx and Rodbertus, and it thus became the fundamental doctrine of modern scientific socialism. The importance attached to it in modern socialist literature, and the implications contained in it, cannot be better appreciated than in the trenchant language of Mr. Robert Blatchford : —

There are but a few landlords [he says, in Britain for the British] but they take a large share of the wealth. There are but a few capitalists, but they take a large share of the wealth. There are very many workers, but they do not get much more than a third share of the wealth they produce. The landlord produces nothing. He takes part of the wealth for allowing the workers to use the land. The capitalist produces nothing. He takes part of the wealth for allowing the workers to use the capital. The workers produce all the wealth, and are obliged to give a great deal of it to the landlords and capitalists who produce nothing. Socialists claim that the landlord is useless under any form of society, that the capitalist is not needed in a properly ordered society, and that the people should become their own landlords and their own capitalists. If the people were their own landlords and capitalists, all the wealth would belong to the workers by whom it is all produced.

As labor, then, produces all the wealth of the country, all the wealth of the country belongs of right to the laborer. Rent and interest on capital is unearned increment, surplus value, produced by the worker, but which is filched away from its rightful owner by the landlord and the capitalist. To quote Mr. Blatchford again :—

We all know how the landlord takes a part of the wealth produced by labor and calls it ‘‘rent.’’ But that is only simple rent. There is a worse kind of rent which I will call ‘‘compound rent.’’ It is known to economists as ‘‘unearned increment.’’ I need hardly remind you that rents are higher in large towns than in small villages. Why! Because land is more ‘‘valuable.’’ Why is it more valuable? Because there is more trade done. Thus a plot of land in the city of London will bring in a hundredfold more rent than a plot of the same size in a Scottish valley.

For people must have lodgings, and shops, and offices, and works in the places: where their business lies. Cases have been known in which land bought for a few shillings an acre has increased within a man’s lifetime to a value of many guineas a yard. This increase in value is not due to any exertion, genius, or enterprise on the part of the landowner. It is entirely due to the energy and intelligence of those who made the trade and industry of the town. The landowner sits idle while the Edisons, the Stephensons, the Jacquards, Mawdsleys, Bessemers, and the thousands of skilled workers expand a sleepy village into a thriving town; but when the town is built and the trade is flourishing, he steps in to reap the harvest. He raises the rent. He raises the rent, and evermore raises ' the rent, so that the harder the townsfolk work and the more the town prospers, the greater is the price he charges for the use of his land. This extortionate rent is really a fine inflicted by idleness on industry. It is simple plunder and is known by the technical name of unearned increment. It is unearned increment which condemns so many of the workers in our British towns to live in narrow streets, in back-to-back cottages, in hideous tenements. It is unearned increment which forces up the death-rate and fosters all manner of disease and vice. It is unearned increment which keeps vast areas of London, Glasgow, Liverpool, Manchester, and all our large towns, ugly, squalid, unhealthy, and vile. And unearned increment is an inevitable outcome and an invariable characteristic of the private ownership of land.

There, then, we have a gospel of anarchy and revolution fully developed. It is short, and easily understood by the meanest intellect; it flatters the most powerful of all human passions, pride and cupidity. The worker produces by his labor all the wealth of the world; to the worker, then, all the wealth of the world belongs. What have we to say to this proposition?

In the first place it is a very defective analysis .. which traces such great and widely spread evils to so simple a cause. The abuses of private ownership are doubtless great, and nobody deplores them more than we do. But the evils arising from the abuse of a system should not be attributed to the system itself.

Then, we willingly grant that labor and production is one of the titles to property. A man has a right to the fruits of his industry. We do not grant this grudgingly; on the contrary, as workers, we claim it for ourselves, as we willingly concede it to others. Work is a great blessing, a great safeguard which nobody should forego, and which for most people will ever be a necessity. In the sweat of thy face shalt thou eat bread; If any man will not work neither let him eat. We are the last people in the world to undervalue labor, and to deny it its just claims. The laborer, then, has a right to the fruits of his toil. If a man discovers land which belongs to nobody, and cuts timber there, out of which he constructs a cabin, the cabin is his property, as being the fruit of his labor and skill. He has a right to its exclusive use, no one else, against the reasonable wish of the owner, may make use of the convenience which it affords. The owner has a right to all the advantages which the cabin can afford. It shelters him from rain and cold, it protects him from the too warm rays of the midday sun, it is a defense against wild beasts and other enemies. Any use to which it can be put belongs to him and to him alone, exclusively, because it is his property, the fruit of his labor. Because it is his property he may destroy it if he pleases, and use the material for firewood. He may give it or sell it to another. He may freely dispose of what is his own. To interfere with such a right would be to interfere with the rights of labor, for the products of labor belong to and are at the entire disposal of the laborer. If our laborer is another Crusoe on an island which belongs to nobody else, and he is lucky enough to find and capture a goat, the goat, too, becomes his property. He may kill and eat it if he likes, or he may keep it to furnish himself with milk. He may dispose of it as he likes, because it is his, and a man may do what he likes with his own. All the uses to which it can be put belong to him. If killed, its flesh and skin belong to him. If kept alive, all the uses to which it can be put are his for it is his property. If it happen to have young, the young belongs to the owner of the dam, for the dam, with all its activities, powers and capabilities, belongs to him who reduced it to subjection. If some one else comes to share our Crusoe’s solitude, Crusoe may make him a present of some of his property, or he may barter it for something else of value. When the property by mutual consent is made over to another, it becomes his just as before it belonged to Crusoe. To deny this is to deny the sacred rights of property, it is to deny that a man may do what he likes with his own, it is to deny the liberty of contract, which it is so sovereignly necessary for the good of society to keep as far as possible unfettered.

All that has been said must be admitted by those who maintain the right of labor to labor’s produce. We have simply been developing what is implied by the right of property, and modern English socialists do not deny the right of private property ; they loudly assert that the produce of labor is the private property of the laborer. But if what has been said cannot truthfully be denied, we begin to see the fallacy of the fundamental tenet of modern socialism. That fundamental tenet is that all wealth is the product of labor, and of right belongs to the laborer. Landlords and capitalists are thieves and robbers who not only may with justice be compelled to disgorge their ill-gotten wealth, but who in the interests of justice should be compelled to do so. But what if by free contract it has come into the possession of the present owners from those who had an undoubted right to transfer it? And this in many instances is undeniably the case. We must conclude that labor is undoubtedly one of the titles to property, but it is not the only one nor the chief one.

But, retorts the socialist, even if I admit this, it will not justify the extortionate rent which the landlord charges, nor the interest on barren capital. The unearned increment should be handed over to the community, to the people who make it.

To deny that the unearned increment of wealth belongs to the owner of that wealth is in reality to deny the rights of ownership as they have just been set forth. The owner of the field has a right to all the advantages which the field can afford. All its uses, all its activities and powers belong to him; it is precisely for those uses, activities, and powers that he values it as his private property. The grass which it produces is his, whether he spent labor on it or not; labor is not the sole title to property. If the grass grew without labor it is unearned increment. Similarly, the young animals belong to the animals’ owner, not by the title of labor but from the very nature of the right of property, by which all that the thing owned is, or is capable of becoming, belongs to the owner of it. If a great number of people ‘come and settle round my field, my field rises in value, not because they or I have spent labor on it, but simply because now being more favorably situated with a view to the conveniences of life, it is more highly valued and is worth more than it was before. The enhanced value is unearned increment, but on that account it does not cease to belong to me.

Precisely in the same way the labor of the carpenter or bricklayer becomes more valuable in a thriving and rapidly increasing town. Whereas before he had to be satisfied with thirty shillings a week, he can now easily earn forty shillings. He works neither harder nor longer hours, but because of the increased demand, the value of his labor has increased. The enhanced value is unearned increment, but the carpenter would be very much astonished if he were told that it did not belong to him, but to the community who made it; that if he kept it he would be no better than a thief and a robber. All this is admirably summed up in the old maxim — Res fructificat domino. By the law of nature, by the very nature of the right of property, whatever a thing produces belongs to the rightful owner of that thing. When the produce is due partly to the natural or artificial fertility of the property and partly to human labor, both the owner of the property and the laborer have rights in the produce. It is not possible to define exactly what proportion is due to the owner and what to the laborer. A laborer indeed whose whole working capacity was given to the work has a right to so much of the produce or its equivalent as will support him in decent comfort. The laborer has a duty and a right to live in a manner conformable to the dignity of human nature and his circumstances, and in the case supposed the only means he has to fulfil his duty and to exercise his right must be derived from the fruit of his toil. Beyond saying this no more precise rule for the division of the produce can be laid down, so there is room for amicable arrangement and contract.

As his labor belongs to the laborer there is nothing to prevent him from hiring it out to an employer at any reasonable rate. As money in our modern capitalistic society is a means of production, as it may readily be exchanged for land, machinery, and other means of production, money has in fact become virtually productive, and therefore the lender of money rightly charges interest for his loan; he shares in the produce of the money just as the landlord shares in the produce of his land.

Besides the natural increase of property due to natural fertility which we have hitherto been considering, property may increase by additions being made to it either by the agency of natural forces or by the will of man. The gradual additions made to land by the action of a river or of the sea, called alluvion in English law, is an instance of an addition being made to property by natural forces. The mixing of liquids belonging to different owners, called confusion, and of solids, called commixture, are examples of additions to property made by the will of man. All these instances, like that of natural fertility, are comprised by jurists under the general name of Accession as a recognized title to property. In these latter instances, however, the law of nature is not so clear and definite. English law agrees with Roman in applying the maxim that what is accessory follows the principal when questions of ownership of the whole mixed property arise. Although the principle is quite in accordance with reason, yet reason does not seem to demand such a solution as peremptorily as it requires that the produce of the natural fertility of property should belong to the owner of that property. In fact, when we descend to particulars the principle is not applied absolutely and universally in Roman or in English law.

Thus, a gradual increase made to land becomes indeed the property of that land’s owner by alluvion, but if the increase was made suddenly the property rights remain as before. So also if a piece of another man’s timber is built into a house, the timber becomes the property of the owner of the house, but by law he must make compensation to the owner of the timber. Commixture is a species of accession where movables belonging to one owner are mixed with similar movables belonging to another. The principles of English law on the question are entirely at one with those of the Roman law. The owners in general retain a right to claim a proportion of the mixture or its value.¹

¹ Encyclopaedia of the Laws of England, s.v. Commixture.

There is a special law with regard to money:

“If another’s coins have been paid without the owner’s knowledge or against his will, they remain the property of him to whom they belonged. If they had been mixed so that they could not be distinguished, it is written in the books of Gaius that they become the property of the person who received them, so that the owner would have an action for theft against the person who had paid them.”²

² L. 78, Dig. De solutionibus.

Lugo applies and explains this law in the following interesting passage : —

If you received stolen money not gratuitously, but in payment of some debt, and by mixing it with a larger sum made it your own, when the owner of the money subsequently appears you are bound to nothing; for you are not bound on account of an unjust taking, since you received it in good faith; nor by reason of the thing received, because the thing received has now been consumed by the mixing and stands just as if you had spent it; nor, finally, are you bound insofar as you have been enriched, since by that occasion you acquired no profit at all, but had what was otherwise owed to you: the law Si alieni, de solutionibus speaks chiefly of this case when it says that the owner of the money has an action only against the thief; because, of course, the person who had received it in payment had not thereby been enriched, and moreover had already acquired ownership of it through the mixing.³

³ De Justitia, vi., n. 171.

This seems to be modern English and American law: —

Where a person [writes Mr. Attenborough] is entrusted with goods or money for a particular purpose and he misapplies the property with which he is entrusted, the proceeds of such misapplication may be claimed by the owner of the goods or money as, e.g., if A delivers money to B to buy a horse for him and B buys a carriage with the money, A is entitled to the carriage. In such a case it makes no difference into what other form different from the original the change may have been made, whether it be into that of promissory notes for the security of the money which was produced by the sale of the goods, or into other merchandise; for the product of, or substitute for, the original things still follows the nature of the thing itself as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail, which is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description.⁴

⁴ The Recovery of Stolen Goods, 1906.

Where it is to be observed that both according to Roman and English law the transference of dominion in the money is not ascribed merely to the receiving of it for value, but to the mixing or commixture of it with one’s own moneys. It could be followed up if it remained separate and distinguishable, it cannot be followed up after mixture with one’s own.