period of time. By an Act in New Hampshire, in 1791, chattels found, waifs, treasure-trove, and estrays, are given wholly to the town, after deducting the expenses of the finder; (b) and the learned and laborious author of the General Abridgment of the American Law not unreasonably concludes, (c) that in those states where there are no statute regulations on the subject, estrays, treasure-trove, and waifs belong to the finder, in the absence of the owner. (d)

II. Of the original acquisition by accession.

Property in goods and chattels may be acquired by accession; and under that head is also included the acquisition of property proceeding from the admixture of confusion of goods.

The right of accession is defined, in the French and Louisianian codes, (e) to be the right to all which one's own property produces, whether that property be movable or immovable, and the right to that which is united to it by accession, either naturally or artificially. The fruits of the earth, produced naturally or by human industry, the increase of animals, and the new species of articles made by one person out of the materials of another, are all embraced by this definition. (f) I purpose only to allude to those general rules which were formed, digested, and refined by the sagacity and discussions of the Roman lawyers, and transferred

from the civil law into the municipal institutions of the *361 principal *nations of Europe. By means of Bracton (a)

they were introduced into the common law of England, and, doubtless, they now equally pervade the jurisprudence of these United States. The subject has received the most ample consideration of the French civilians; and all the distinctions of which it was susceptible are easily perceived and clearly understood, by means of the pertinency and fulness of their illustrations. (b)

(b) Ibid. sec. 22.

(c) Ibid. sec. 21.

(d) In East New Jersey, in the infancy of the colony, waifs, estrays, treasure-trove, and wrecks were forfeited to the lords proprietors of the province. Leaming and Spicer's Collections, 590.

(e) Code Civil, Nos. 546, 547. Civil Code of Louisiana, art. 490, 491.

(f) Codes, Ibid.

(a) De acqui. rerum dom. b. 2, ch. 2, 3.

(6) Potheir, Traité du Droit au Propriété, Nos. 150, 193. Toullier, Droit Civil Français, tom. iii. Nos. 106-150.

If a person hires, for a limited period, a flock of sheep or cattle of the owner, the increase of the flock during the term belongs to the usufructuary, who is regarded as the temporary proprietor. This general principle of law was admitted in Wood v. Ash, (c) and recognized in Putnam v. Wyley. (d) The Roman law made a distinction in respect to the offspring of slaves, (e) and so does the civil code of Louisiana. (f) Though the children were born during the temporary use or hiring of the female slave, they belonged not to the hirer, but to the permanent owner of the slave. Another rule is, that if the materials of one person are united to the materials belonging to another, by the labor of the latter, who furnishes the principal materials, the property in the joint produce is in the latter by right of accession. This rule. of the Roman and English law was acknowledged in Merritt v. Johnson, (g) and it has been applied by Molloy (h) to the case of building a vessel. According to the doctrine of the Pandects, (i) if one repairs his vessel with another's materials, the property of the vessel remains in him; but if he builds the vessel from the very keel with the materials of another, the vessel * 362 belongs to the owner of the materials. The property is supposed to follow the keel, proprietas totius navis, carinæ causam sequitur. This title exercised to a great degree the talents and criticism of the civilians. If A. builds a house with his own. materials upon the land of B., the land, said Pothier, is the principal subject, and the other is but accessary; for the land can subsist without the building, but the building cannot subsist without the land on which it stands; and, therefore, the owner of the land acquired, by right of accession, the property in the building. It is the same thing if A. builds a house on his own land with the materials of another; for the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged (if bound to answer at all) to answer to the owner of the materials for the value of them. (a) The same distinctions apply to trees or vines planted,

(c) Owen, 139.

(e) Inst. 2, 1, 37.

(g) 7 Johns. 473.

(i) Dig. 6, 1, 61.

(d) 8 Johns. 432.

(ƒ) Art. 539.

(h) De Jure Maritimo, b. 2, ch. 1, sec. 7.

(a) By the French Civil Code, the general principle is, that the property of the soil

or seed sowed by A. in the land of B. When they take root and grow, they belong to the owner of the soil, and the other can only claim, upon equitable principles, a recompense in damages for the loss of his materials. But the Roman law held, that if A. painted a fine picture on the cloth or canvas of B., in that case the rule would be reversed; for though the painting could not subsist without the canvas, and the canvas could subsist without the painting, yet, propter excellentiam artis, the canvas was deemed the accessary, and went as the property of the painter by right of accession, for it would be ridiculous, say the Institutes of Justinian, (b) that a picture of Apelles, or Parrhasius, should be deemed a mere accessary to a worthless tablet. The Roman law was quite inconsistent on this subject; for if a fine poem or history was written by A. on the paper or parchment of B., the paper or parchment was deemed the principal, and drew to the owner of it, by right of accession, the ownership of the poem or history, however excellent the composition, and however * splendid the embellishments of the work. The French law, according to Pothier and Toullier, does not follow this absurd decision of the Roman law; for it holds, that the paper is a thing of no consideration in comparison with the composition, and that the author has a higher, and, consequently, the principal interest in the written manuscript, and the whole shall belong to him on paying B. for the value of his paper. (a)

*363

The English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser. It was a principle settled as early as the time of the Year Books, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, and be entitled to the ownership of it in its state of improvement, if he could prove the identity of the

carries with it the property of all that which is directly above and under it, (art. 552.) This covers all erections and works made on or within the soil; and if made by a third person with his own materials, the owner has a right to keep them by the right of acces sion, on reimbursing to the owner the value of the materials and price of workmanship, without any regard to the value which the soil may have acquired thereby. Miller v. Michoud, 11 Rob. (Louis.) 225.

(b) De rer. div. 2, 1, sec. 34.

(a) Vide Pothier, Droit de Propriété, n. 169–192, and Toullier, tom. iii. pp. 73–79, for the distinctions on this subject.

original materials; as if leather be made into

shoes, or cloth into

a coat, or a tree be squared into timber. (b)1 So, the civil law, in order to avoid giving encouragement to trespassers, would not allow a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and the materials were incapable of being restored to their original form. (e) The Supreme Court of New York, in Betts & Church v. Lee, (d) admitted these principles, and held that where A. had entered upon the land of B. and cut down trees, and sawed and split them into shingles, and carried them away, the conversion of the timber into shingles did not change the right of property. But if grain be taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held, in the old English law, that the property is so altered as to change the title. (e) In the civil law there was much discussion and controversy on the question, how far a change of the form and character of the materials * 364 would change the title to the property, and transfer it from the original owner of the materials to the person who had effected the change. If A: should make wine out of the grapes, or meal out of the corn of B., or make cloth out of the wool of B., or a bench, or a chest, or a ship, out of the timber of B., the most satisfactory decision, according to the Institutes of Justinian, is, (a) that if the species can be reduced to its former rude materials, the owner of the materials is to be deemed the owner of the new species; but if the species cannot be so reduced, as neither wine nor flour can be reduced back to grapes or corn, then the manufacturer is deemed to be the owner, and he is only

(b) 5 Hen. VII. 15. 12 Hen. VIII. 10. Fitz. Abr. Bar. 144. Bro. tit. Property, 23. (c) The Civil Code of Louisiana, arts. 494, 495, has explicitly recognized the same principle.

(d) 5 Johns. 348. See, also, Worth v. Northam, 4 Ired. (N. C.) 102.

(e) Bro. tit. Property, pl. 23.

(a) Inst. 2, 1, 25.

1 But where a manufacturer has increased the value of an article in good faith, in pursuance of a contract with the owner, he is entitled to be allowed for the increase in an action against him for damages for conversion of the property. Hyde v. Cookson, 21 Barb. (N. Y.) 92.

to make satisfaction to the former proprietor for the materials which he had so converted. (b)1

With respect to the state of a confusion of goods, where those of two persons are so intermixed that they can no longer be distinguished, each of them has an equal interest in the subject as tenants in common, if the intermixture was by consent. But if it was wilfully made without mutual consent, then the civil law gave the whole to him who made the intermixture, and compelled him to make satisfaction in damages to the other party for what he had lost. (c) The common law gave the entire property, without any account, to him whose property was originally invaded, and its

distinct character destroyed. (d)2 If A. will wilfully in* 365 termix his corn * or hay with that of B., or casts his gold into another's crucible, so that it becomes impossible to distinguish what belonged to A. from what belonged to B., the whole belongs to B. (a) But this rule is carried no farther than necessity requires; and if the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. (b) So, if the corn or flour mixed together were of equal value, then the injured party takes his given quantity and not the whole. This is Lord Eldon's construction

1

(b) The commentators have been much divided in opinion concerning the solidity of these distinctions taken by Justinian. Vinnius and Pothier have approved of the rule established in the Institutes; while Valin and Basuage lay down the doctrine, that the thing must be restored, if there be clear evidence of its identity, even though the form be changed, as corn into flour, or skins into leather. Mr. Bell has referred to the several writers by whom this subject is discussed; and though he condemns the rule of Justinian as too subtle, he gives us no distinct principle as a substitute. 1 Bell's Com. 276, n. See the Civil Code of Louisiana, art. 512 to 524, which has incorporated the principle or most material distinctions in the French law.

(c) Inst. 2, 1, 27, 28.

(d) Popham, 38, pl. 2.

(a) Popham, ub sup. Warde v. Eyre, 2 Bulst. 323.

(b) Colwill v. Reeves, 2 Camp. 575. Holbrook v. Hyde, 1 Vermont, 286.

1 See post, p. [590] note (1.) The right of property by accession may occur when materials belonging to several persons, are united by labor into one article. The ownership of the article is in the party to whom the principal part of the materials belonged. Pulcifer v. Page, 32 Maine, 404.

2 Willard v. Rice, 11 Metcalf, 493. See, also, Pratt v. Bryant, 20 Vermont, 333. It is said, in this last case, that if the intermingling is a consequence of negligence only, the goods are not lost.

1 But where a bailee has converted goods of his bailor to his own use, the latter cannot claim similar goods belonging to the bailee, unless he can show his own to be among them. Wood v. Fales, 24 Penn. 246.