No. 499.

Book 2, part 2, tit. 3, chap. 1, sec. 1, § 2, art. 1.

No. 501.

upon land by the sea, and left there, within some county, so as not to belong to the jurisdiction of the admiralty, but to the common law. (a) The property in these is generally regulated by local statutes.

§ 2. Consequent occupancy, or the right of accession. 499. The ownership of a thing, whether real or personal, movable or immovable, carries with it the right to all the thing produces, and to all that becomes united to it, either naturally or artificially; this is called the right of accession, a right grounded on that of occupancy.

The doctrine of accession has been adopted from the civil or Roman law, and, contrary to their custom, English lawyers have acknowledged the source, in this instance, from which so many wise rules flowed. It was introduced by Bracton, and the good sense of the doctrine recommended it to the courts, who incorporated it into our system. (b) Accession is natural or artificial.

Art. 1.-Of natural accession.

500. Natural accession consists in the right to emblements, and the right to the young of animals.

1. Of emblements.

501. By emblements is understood the crops growing in the ground. By crops is here meant the products of the earth which grow yearly and are raised by annual expense and labor, such as grain; but not fruits which grow on trees, not to be yearly planted, grass and the like, though they are annual.(c) They belong to the owner of the land, or to the tenant who occupies it, who has sown and planted it. For some purposes emblements are to be considered as personal property, for on the death of the owner, they go to

(a) 2 Inst. 167; Bract. 1. 3, c. 3; Mirror, c. 1, s. 13, and c. 3. (b) 2 Bl. Com. 404.

(c) Co. Lit. 55 b; Com. Dig. Biens, G.

No. 502.

Book 2, part 2, tit. 3, chap. 1, sec. 1, § 2, art. 2.

No. 504.

the executor, and not to the heir; but in some respects they are treated as real estate, and, for that reason, at common law they are not the subject of larceny. (a)

2. Of the young of animals.

502. The owner of a female animal is entitled to all her brood, according to the maxim partus sequitur ventrem.(b) Although this rule is reversed with regard to free persons, whose offspring follow the condition of the father, yet, where slavery exists, the young of female slaves belong to the master of the mother.(c)

Art. 2.-Of artificial accession.

503. It is difficult, if not impossible, to reduce to general and precise rules the right of accession, which has for its objects two personal things belonging to two different owners; this right must always be subject to the rules of natural equity.

These rules may be arranged into three classes, which correspond to the three artificial kinds of accessions: 1, adjunction, or the union by adjunction of two things which belong to different owners; 2, specification, or the formation of a new species, with personal chattels belonging to another; and, 3, commixtion, or the mixture of several things belonging to several owners.

1. Of adjunction.

504. By adjunction is meant the union which takes place when the thing belonging to one person is attached or united to that which belongs to another, in such a manner as to form a whole, and yet separable, so that one can subsist without the other; for example, a diamond enchased in a ring; silk thread used to make another man's coat. In these cases, when the adjunction is made by mistake, the whole belongs to the owner of the principal article, upon condition, however, that he shall pay to the other the (a) 3 Inst. 109.

(b) Dig. 6, 1, 5, 2; Inst, 2, 1, 19.

(c) See Fanny v. Bryant, 4 J. J. Marsh, 368; State v. Anderson, Coxe, 36.

No. 505.

Book 2, part 2, tit. 3, chap. 1, sec. 1, § 2, art. 2.

No. 505.

value of the goods which have been so employed. But the law will not permit one man to gain title in another's chattels, upon the principle of accession, if he took the property wilfully as a trespasser.

2. Of specification, or the formation of new species out of the thing belonging to another.

505. Specification is the making a new species out of materials of a different nature; as, cider out of apples; flour out of wheat. When a man takes lawfully the property of another, and changes its nature by making a new species, a question arises to whom does the whole belong? In some cases the substance carries it over the form, in others the form is preferred to the substance.

It seems to be settled that whatever alteration of form any property may have undergone, if taken tortiously, the owner of the original chattel is entitled to it in its new shape. (a)

But if the thing changed be taken lawfully, as, when a man believing wood to belong to him, made a table out of it; or money belonging to another which he believed to be his own, and worked it up into a vase, according to the Roman law, he would be the owner of the table or of the vase, but liable to the true owners of the wood or the money for their value.(b) Upon the principle that the writing and the painting in the following cases is the principal, a picture painted on canvas would belong to the painter, he being liable to the owner of the canvas for its value; and the author of a poem or history, written by him by mistake on the paper of another, would belong to the author, he paying for the paper. (c)

If the material taken and converted into a new species cannot be changed back to what it was, as if

(a) Fitz. Ab. Bar. 144; Bro. Propertie, 23; Civ. Code of Lo. art. 494, 495; Church v. Lee, 5 John. 348.

(b) Inst. 2, 1, 25, 34; 2 Black. Com. 404.

(c) 2 Kent. Com. 362, 363; 3 Toull. n. 116.

No. 506.

Book 2, part 2, tit. 3, chap. 1, sec. 1, § 2, art. 2.

No. 507.

wheat be made into flour, or apples into cider, the new articles belong to the new proprietors, and they become subject to the owners of the materials for their value.(a)

3. Confusion, or mixture of several things belonging to different owners. 506. Confusion of goods takes place when the goods of two or more persons become mixed together so that they cannot be separated; as, if the cider of two different persons be poured into the same barrel; when the things put together are capable of separation, the mixture is called commixtion; as, if the flock of sheep belonging to A, be mixed with that of B.

In cases of commixtion the property in the things is not changed; it may be separated, and the owner of each is entitled to that which belongs to him.

507. In cases of confusion the rules vary according to the circumstances.

1st. When the confusion takes place by the mutual consent of the owners, they have an interest in the mixture in proportion to their respective shares. (b)

2dly. When the confusion arises from inevitable accident, or by the act of a stranger, the rule of the civil law, which deemed the property to be held in common, might be adopted; and it would make no difference whether the mixture produced a thing of the same sort or not; as, if the wine of one were poured into a cask containing the cider of the other, or the gold of one and the silver of another be melted together and made into a vase.(c)

(a) Inst. 2, 1, 25, 34; Silsbury v. McCoon, 6 Hill, 425. (b) 2 Bl. Com. 405; 6 Hill, N. Y. Rep. 405.

(c) The rule in these cases is thus laid down in Justinian's Institutes, lib. 2, t. 1, § 27: Si duorum materiæ ex voluntate dominorum confusæ sint, totum id corpus, quod ex confusione fit, utriusque commune est: veluti si qui vina sua confuderint, aut massas argenti vel auri conflaverint. Sed et si diversæ materiæ sint, et ob id propria species facta sit; forte ex vino et melle melsum, aut ex auro et argento electrum, idem juris est: nam et hoc casu commumem esse speciem non dubitatur. Quòd si fortuitu, et non voluntate dominorum, confusæ fuerint, vel ejusdem generis materia, vel diverse, idem juris esse placuit. See Dane's Ab. c. 76, art. 5, § 19.

No. 508.

Book 2, part 2, tit. 3, chap. 1, sec. 2, § 1, art. 1.

No. 511.

3dly. When a man mixes his own goods with those of another wilfully, and thereby make a confusion, the whole of the mass belongs to him whose rights have been invaded, and this rule has been adopted to punish the wrong-doer for his unlawful act.(a)

SECTION 2.—OF ORIGINAL ACQUISITION BY INTELLECTUAL

LABOR.

508. The rights of an author in his writings called literary property, and of an inventor in his invention, will form the subject of this section.

§ 1. Of literary property.

509. An author has an undoubted right over his unpublished compositions. No man has a right to publish the thoughts of another to the world, or to propagate their publication beyond the points to which he has given consent. But once committed to the public with his consent by printing, he is committed forever. The questions of the author's right may be considered, first, with regard to the property in his unpublished works; and, secondly, in those which have been published with his consent.

Art. 1.-Of property in unpublished works.

510. A variety of cases may arise as to the right in the author to restrain the publication of his works; these may be classed into those which relate, 1, to private letters; 2, to publication by acting or reciting; 3, to the gift or sale of the manuscript; and 4, to books printed, or in the printer's hands.

1. Of private letters.

511. Private letters written by one individual to another, remain the property of the writer; for some

(a) 2 Bl. Com. 405; and see 2 Kent, Com. 365, 4th ed.; Poph. 38, pl. 2; Ward v. Eyre, 2 Bulst. 323; 15 Ves. 442; Case of the Odin, 1 Rob. Rep. 208; Brackenridge v. Holland, 2 Blackf. 377.