BOOK III. Pt. 1. Ch. I. a § 73. Ulp. Pomponius scribit, si quid quod eiusdem naturae est, ita confusum est atque commixtum, ut diduci et separari non possit, non totum sed pro parte esse vindicandum; pro rata ponderis quod in massa habemus.—D. 6, 1, 3, 2.1 Id. Idem Pomponius scribit: si frumentum duorum non voluntate eorum confusum sit, competit singulis in rem actio in 'quantum paret in illo acervo suum cuiusque esse.'-1. 5 pr. eod. (2) It is otherwise with money belonging to others this, in case it is not distinguishable, passes into the ownership of him who has mixed it with his own, whilst a right of claim against him arises in favour of the loser for the sum represented by it. : Iavol. Si alieni nummi inscio vel invito domino soluti sunt, manent eius, cuius fuerunt; si mixti essent, ita ut discerni non possent, eius fieri, qui accepit, in libris Gaii scriptum est.— D. 46, 3, 78.3 § 85. ACQUISITION OF FRUITS. The natural fruits of a thing," without regard to the because the individual bodies, that is the single grains, which had belonged to each of you, have been united by your consent. If the mixture have happened by chance, or Titius have made the mixture not by your intention, it is not considered common property, because the bodies continue distinct in their substance. 1 Pomp. writes: If anything of the same material have been so melted and mixed together that it cannot be severed and divided, we cannot reclaim it in the bulk, but only by way of shares; . . . according to the proportion of weight which we possess in the mass. 2 The same Pomp. writes: If the corn of two persons have been mingled not by their intention, a real action is available to each for as much of that heap as appears to belong to each. 3 If money belonging to another have been paid without the privity or consent of the owner, it remains his to whom it belonged; we find written in the books of Gaius that if it were mixed so as not to admit of distinction, it becomes the property of him who received it. BOOK III. person by whom they may be raised, are acquired not merely by the owner of the thing (so that the right in Pt. 1. Ch. 1. the fruit-bearing thing naturally extends to the fruit, as to a customary material part which by the separation has become an independent object of right), but also by the bonae fidei possessor,' and him that has an independent right to the thing in respect of its produce; so that the ownership of the produce, as of a new, hitherto non-existing thing, rest upon special grounds of Law. Nevertheless, with such things acquisition obtains in different ways. Through SEPARATION, by whomsoever it may have been effected, the fruits are acquired (1) by the owner. Inst. ii. 1, 19: Item ea, quae ex animalibus dominio tuo subiectis nata sunt, eodem iure" tibi a Sc. naturali. adquiruntur.' Ulp. (Pomponius) scribit, si equam meam equus tuus praeguantem fecerit, non esse tuum, Iul. Qui scit fundum sibi cum alio communem (2) By the bonae fidei possessor, who however Cf. § 88, and has to restore to the owner, as defending his right to D. 7, 1, 12, 5. 1 Likewise, that which is born to you from animals in your ownership you acquire by the same right. 2 (Pomp.) writes that if your stallion have made my mare pregnant, the foal is not yours but mine. 3 He that is aware he owns a field in common with another, makes the fruits which he shall have gathered from it without the consent or knowledge of the partner in no greater share his own than that by which he is owner of the field. Nor does it matter whether he himself, or the partner, or both of them, have sown them, because all fruit is gathered, not by right of the seed, but by right of the ground. BOOK III. Pt. I. Ch. I. the principal thing (and to that perhaps alone), the 'fructus exstantes' along with such principal thing, whilst for 'fructus consumpti'-used up and alienated-he has not generally to offer any compensation. In alieno fundo, quem Titius bona fide mercatus fuerat, frumentum sevi; an Titius bonae fidei emptor perceptos fructus suos faciat? ... Respondi . . . in fructibus magis corporis ius, ex quo percipiuntur, quam seminis, ex quo oriuntur, adspicitur; et ideo nemo umquam dubitavit, quin, si in meo fundo frumentum tuum severim, segetes et quod ex messibus collectum fuerit meum fieret. Porro bonae fidei possessor in percipiendis fructibus id iuris habet, quod dominis praediorum tributum est: . . . cum fructuarii quidem non fiant, antequam ab eo percipiantur, ad bonae fidei autem possessorem pertineant, quoque modo a solo separati fuerint ; sicut eius, qui vectigalem fundum habet, fructus fiunt, simul atque solo separati sunt.-Ibid. § 1.' Paul. Bonae fidei emptor non dubie percipiendo fructus etiam ex aliena re suos interim facit: non tantum eos, qui diligentia et opera eius pervenerunt, sed omnes, quia quod ad fructus 1 I have sown a crop in a field owned by another, which Tit. had purchased in good faith: does Tit. the bon. fid. purchaser make the fruit when gathered his own? The opinion I gave was: . . . in respect of fruits, regard must be had rather to the right of the body from which they are gathered than to the seed from which they spring; and therefore no one has ever doubted that if I have sown your crop in my field, the crop, and whatever should be gathered by the harvest, was mine. Moreover a bon. fid. possessor has the same title to the gathering of fruits as has been accorded to owners of estates. . . since they do not become the property of the fructuary until they are gathered by him, but belong to the bon. fid. possessor in whatever way they have been separated from the ground; like as fruits become the property of him who possesses a stipendiary estate, as soon as they have been separated from the ground. attinet, loco domini paene est. Denique etiam Afr. simul haec fere cedere, ut quo casu Certum est, malae fidei possessores omnes fructus solere cum ipsa re praestare; bonae fidei vero exstantes, post litis autem contestationem universos.-C. 3, 32, 22.3 1 A bon. fid. purchaser, by gathering the fruits even of property belonging to another, makes them his own for the meantime, not merely those which have accrued from his industry and toil, but all, because as concerns the fruits he is almost in the position of the owner. Accordingly, even before he gather them, immediately upon their separation from the ground they become the property of the bon. fid. purchaser. And it is immaterial whether the article which I have purchased in good faith can be acquired through length of time or not.-On the other hand, if at the time when the thing is delivered to me I believe that it is the property of the vendor, and afterwards learn that it belongs to another, the question arises whether I make the fruits my own, because usucapion is assured by lapse of time. Pompon. thinks that we must hesitate as to his being a bon. fid. possessor, though his usucapion attach. -that these cases are almost identical, in that whenever the bon. fid. possessor makes himself owner of the consumed fruits of land, he also acquires through the slave by his services and his own substance. 3 It is certain that possessors in bad faith generally offer all the fruits with the thing itself; but those in good faith only the existing fruits, but after lit. cont. the whole. BOOK III. Pt. I. Ch. I. (3) By the Emphyteuta.'a The fruits are acquired by the usufructuary and the lessee through PERCEPTION (taking possession), upon the ground of the independent right to the thing which belongs to him, or of the privilege in respect of the produce assured to him by the owner-by a sort of delivery. Is ad quem ususfructus fundi pertinet non aliter fructuum dominus efficitur, quam si eos perceperit; et ideo licet maturis fructibus, nondum tamen perceptis decesserit, ad heredem eius non pertinent, sed domino proprietatis adquiruntur. Eadem fere et de colono dicuntur.-§ 36, I. de R. D.1 Afric. colonum, quia voluntate domini eos percipere videatur, suos fructus facere.-D. 47, 2, 61, 8.2 $86. SPECIFICATION. By so-called Specification, that is, work done or recast upon another's material, by which a new object of property (nova species) or artificial production is created, ownership (according to the intermediate view of the Roman Jurists, approved by Justinian), is acquired in such work by its maker, provided that the material so worked up cannot again be restored to its original form, and that the maker have done it 'suo nomine,' i.c., for himself, and bona fide,' i.e., not Otherwise, the new thing devolves upon But this last fraudulently. is questionable. -As to compensation in such cases, see § 84. d For English law as to Emblements, see Blackst. ii. 122-3, 146, 403-4 (Steph. the owner of the material. 1 He that possesses the usufruct of an estate is only made owner of the fruits if he has gathered them in; and therefore should he have died whilst the fruits indeed are ripe, but not gathered, they do not belong to his heir, but are appropriated by the ground owner. The like is generally affirmed of the tenant-farmer." 2 that the tenant-farmer makes the fruits his own, because ii. 258-9, 288-9). he is considered to gather them with the consent of the owner. |