foundation of natural accession.
As to natural accession, what belongs to us either receives an addition we cannot certainly discover the origine and former owner of, or an addition by something known to belong to another. In the first case, since a thing, whose master cannot be certainly known, belongs to none (§241), there is no reason why such an increment may not go with the thing to which it hath acceded, and so be acquired to us. But in the other case, the thing hath an owner, who can by right exclude others from the use of it (§231); and therefore I have no more reason to think such a thing, however it be added to my goods, is acquired to me, than when a strong wind blows the linen of Titius, that were hung out in his garden, into my court.† <185>
SECTION CCLII
Of the breed of animals in particular.
From the foregoing most evident principles, (§251), we may also conclude, that offspring, or a birth, the origine of which is not evident, (which often happens with regard to animals, and likewise to persons born out of lawful marriage) follows the dam or mother as an accessory increment, and that Ulpian, l. 24. D. de statu hominum, not without reason ascribes this effect to the law of nature. But this does not appear equal if both parents be certainly known,* unless the male be kept at common expence for procreation, as a bull often is in common to many, or when the owner lets his bull or stallion to his neighbours for a certain hire.
SECTION CCLIII
Of new islands, whether cast up, or artificial.
Nor is it less difficult to determine to whom a new island, that starts up in the sea, or in a river, belongs. For since it is impossible to discover with certainty to whom the different particles of earth belonged which have coalited into an island (§251), it follows, that an island must be adjudged an acces-<186>sion to the sea or river;† and therefore, if the sea or river belong to no person, the island likewise is without an owner, and must fall to the first occupant. But if, as often happens, either the sea or river belongs to a people or their sovereign (§243), that people or sovereign will have a just title to the island. In fine, since a thing which appertains to a known master, cannot be acquired by any person by accession (§251), an owner cannot lose his ground which is washed by a river or channel into a new island, as the Roman lawyers have acknowledged, l. 7. §4. 1. 30. §2. D. de adqu. rer. dom.
SECTION CCLIV
So likewise by alluvion, and the force of a river.
The same is to be determined of alluvion, and ground separated by the force of a river. For as to the former, as nothing certain can be known concerning the origine of particles gradually annexed to our ground (§251), there is no doubt but what is added to our ground in that manner is accession <187> to us; and what is thus added to a public way, or any public ground, accedes to the public.* On the other hand, when the master of the ground carried off is known (§251), no change can be made in this case as to dominion, unless the master abdicates and leaves what is thus taken away from his possession; which in governments is commonly inferred from the not claiming it during a certain time fixed by law, §2. Inst. de rerum divis. l. 7. §2. D. de adqu. rerum dom.
SECTION CCLV
By a river’s changing its channel and inundation.
In fine, as to a river’s changing its channel, if the channel it deserts, as far as can be known, was in the dominion of no person, it cannot accede to those who possess the adjoining lands in proportion to their grounds, as the Roman lawyers thought, l. 7. §5. D. de adqu. rer. dom. But because the property of the river of which the channel is a part, is certainly known (§251), it will, as a part of the river, be his to whom the river belonged; as, for the same reason, the new channel, if again deserted, without doubt belongs no less to the first masters, than an overflown ground, after the water retires from it.* <188>
SECTION CCLVI
Of accession by industry, first axiom.
Let us now consider industrious and mixed accession, concerning which some lawyers have treated with so much subtlety. And we think, if the things be joined by mutual consent, it cannot be doubted but each is master according to his proportion, and in this case there is a positive community introduced (§231). But we are here speaking of an accession made without the other’s consent. Now, seeing a master has a right to exclude all from the use of what is his (§231), he has a right certainly to hinder any thing from being joined to what is his against his will. Wherefore, since what is added to any thing of ours, either renders it useless, or at least worse, or renders it more valuable and better, because he who renders our goods worse hurts us (§178); the consequence is, that he who has rendered our goods either useless or worse by any industrial accession, is obliged, taking the spoilt goods, to repair our damage; and if he did it by deceit, and with evil intention, he is likewise liable to punishment (§211). <189>
SECTION CCLVII
Second and third axiom.
But if our goods are rendered better and more valuable by any artificial accession, then there is a great difference when the two things can be separated without any considerable loss, and when they cannot. In the former case, since the master of each part hath a right to exclude all others from the use of what belongs to him (§231); but that cannot now be done otherwise than by separating the two things; the consequence is, that in this case the things are to be immediately separated, and to each is to be restored his own part. But, in the other case, the joined things ought to be adjudged to one or other of the two, the other being condemned to pay the value of what is not his to the owner who is thus deprived of it;* and if there be any knavery in the matter, punishment is deserved (§211).
SECTION CCLVIII
A fourth axiom, &c.
But since in the last case, the joined things are to be adjudged to some one of the two, there (§257) ought to be some good reason why one should be preferred (§177): because therefore, there can be no other besides the superior excellence of one of the two things, which is oftner measured by rarity and affection than by utility; hence we infer, that the rule which adjudges the accessory to its principal, is not always equal. Justinian him-<190>self, and before him Caius, acknowledged the absurdity of it in the case of a picture, §34. In. de rer. divis. l. 9. §2. D. de adqu. dom. And therefore the joined things ought to be assigned to him whose part is of the greatest price,* either on account of its rarity, or of his affection, labour, care and keeping; and he ought to be condemned to make an equivalent to the other for what was his, if he insists upon it, and does not rather choose to make a present of it to him.
SECTION CCLIX
What is just with respect to specification.
Hence we may plainly see what ought to be determined in the case of specification, by which a new form is given to materials belonging to another. For since very frequently all the affection or value is put upon the form on account of the workmanship or art, and none at all is set upon the substance (§258), a new species will rightly be adjudged to him who formed it;† but so as that he shall be obliged to make a just equivalent for the price or value of the materials, and shall be liable to punishment, if there be any fraud or knavery in the case (§256). So Thomasius, in the differtation above quoted, §43. & seq. Yet for the same reason above mentioned, the owner of the substance ought to be preferred, if it be rarer and of greater value than the form added to it by another’s labour and art: e.g. if one shall make a statue or vase of Co-<191>rinthian brass, amber, or any precious matter belonging to another, the owner of the materials shall have it, but he shall be obliged to pay for the workmanship, provided the fashioner acted bona fide, i.e. without any fraudulent design.
SECTION CCLX
What with regard to adjunction, inclusion, &c.
Again, adjunction is no inconsiderable species of industrious accession, when something belonging to another is added to our goods by inclusion, by soldering with lead, by nailing or iron-work, by