Justinian's Institutes (535)

From THE CIVIL LAW, by S. P. Scott, (Cincinnati: The Central Trust Company, 1932).


(1) By natural law the following things belong to all men, namely: air, running water, the sea, and for this reason the shores of the sea. No one, therefore, is prohibited from approaching the seashore if he avoids damaging houses, monuments, and other structures, because they are not, like the sea, subject to the Law of Nations.

(2) All rivers and ports are also public, and therefore the right of fishing in a harbor or in streams is common to all.

(3) The shore of the sea extends to the point attained by the highest tide in winter.

(4) The public use of the banks of rivers is also subject to the Law of Nations, just as the use of the river itself is; and hence anyone has a right to secure a vessel to them, to fasten ropes to trees growing there, or to deposit any cargo thereon, just as he has to navigate the river itself; but the ownership of the same is in those whose lands are adjacent, and therefore the trees growing there belong to them.

(5) The public use of the sea-shore is also subject to the Law of Nations in like manner as that of the sea itself, and therefore any person has as good a right to build a house there in which he can take refuge, as he has to dry his nets or to draw them out of the sea. The ownership of the shores, must, however, be considered as belonging to no one, but to be subject to the same law as the sea itself and the earth or sand underneath it.

(6) Such property as theatres, race-courses, and other things of this kind which are situated in towns, as well as such as are the common property of cities, belong to corporate bodies and not to individuals.

(7) Moreover, things which are sacred, religious, and holy, belong to no one, for that which is subject to Divine Law is not the property of any person.

(8) Those things are sacred which have been formally consecrated to God by the Pontiffs, for example, sacred edifices, and donations regularly dedicated to the service of God, which We have also by one of Our Constitutions prohibited from being alienated or encumbered except for the purpose of redeeming captives. Where, however, anyone by his own authority makes anything as it were sacred, so far as his efforts are concerned, it is not sacred, but profane. The ground on which a sacred edifice has been constructed still continues sacred after the edifice has been demolished, which was also the view of Papinian.

(10) Such things are city walls and gates are also holy, and being to some extent subject to Divine Law, are, for that reason, not included in the property of anyone. We mention walls as holy, because

(11) Things become the property of individuals in many ways, for by natural law we obtain the ownership of certain things which, as We have already stated, is called the Law of Nations, and we obtain the ownership of others by the Civil Law. It is more convenient, therefore, to begin with the more ancient law; for it is evident that natural law is the older because in the course of nature it originated at the same time with the human race; and civil laws only came into existence when states were founded, magistrates appointed, and laws committed to writing for the first time.

(12) Therefore, wild beasts, birds, and fishes, that is to say all creatures that exist on the earth, in the sea, or in the air, as soon as they are taken by anyone immediately become his property by the Law of Nations, since whatever formerly belonged to no one is conceded by natural reason to the first person obtaining possession of the same. Nor does it make any difference whether anyone takes wild beasts and birds on his own ground or on that of another, although it is evident that if anyone enters upon the land of another for the purpose of hunting animals or birds, he may be prohibited from entering by the owner, if he is aware of it. Any of these things which you may have taken is understood to be your property as long as it is retained in your custody; but after it has escaped from your custody and recovered its natural liberty, it ceases to be yours, and belongs to the first person who secures it. It is understood to have recovered its natural liberty when it has escaped out of your sight, or, if still in your sight, its pursuit is difficult.

(14) Bees are also wild by nature. Therefore, if they settle upon your tree, they are not understood to be your property until you have enclosed them in a hive, any more than birds which have made a nest in your tree; and for this reason if anyone else shuts them up in a hive he will become their owner, and anyone else can remove their honeycombs if they have made any. It is certain that if you see a person entering upon your land before anything has been touched, you have a legal right to forbid him to enter. A swarm of bees which has escaped from your hive is understood to be yours as long as you can see it and the pursuit of the same is not difficult; otherwise, it becomes the property of the first occupant.

(15) The nature of peacocks and pigeons is also wild, and it does not matter if they have the habit of flying away and returning, for bees act in the same way, and it is established that their nature is wild; and certain persons have so far tamed deer that they are accustomed to go into the woods and return, and no one denies that they are wild by nature. However, with reference to animals which are accustomed to go away and return, the rule has been established that they are considered yours as long as they intend returning; but if they cease to have that intention, they likewise cease to be yours, and belong to the first person who secures them; and they are deemed to have lost the intention to return when they abandon the habit of doing so.

(16) Chickens and geese are not of a wild nature, and this we may ascertain from the fact that there are other fowls which we call wild, and also other geese to which we give this appellation. Therefore, if your geese or chickens are frightened for any reason and fly away, they are still regarded as yours, wherever they may be, even though they may have fled beyond your sight; and anyone who retains possession of these animals for the purpose of gain is deemed to have committed theft.

(18) Again, stones, gems, and other things found upon the shore of the sea immediately become the property of the finder by natural law.

Where, however, anyone has made an article partly out of materials belonging to himself and partly out of those belonging to another; for example, mead out of his own wine and someone else's honey; or a plaster or eye-wash out of drugs belonging to both himself and others; or a garment out of wool belonging to himself and another; there is no doubt that the article in this case belongs to the party who made it, for he not only bestowed his labor but also furnished a portion of the materials.

(26) Where, however, anyone has interwoven purple thread belonging to another person into a garment of his own, the thread, though more precious, is added to the garment by way of accession, and the party who was the owner of the thread can bring an action of theft, as well as one to recover the value of the property, against him who purloined it, whether he himself, or someone else made the garment; but although property which has been destroyed cannot be recovered by a suit, still an action can be brought for it against thieves and any other parties in possession.

(27) If materials belonging to two persons are mingled together with the consent of the owners, the entire mass formed by the said mingling is the common property of both; as, where they mix their wine, or melt together masses of silver or gold — even if the materials are not similar — and for this reason a peculiar kind of substance is created, as, for instance, mead from wine and honey, or electrum from gold and silver, the same rule applies; for in this instance also there is no doubt that the newly formed substance is common property. Again, if the articles are mixed by accident, without the consent of the owners, whether the materials are different or identical the same rule applies.

(28) If, then, the grain of Titius should be mixed with yours, and this be done with his consent and yours, the grain will be common property; because the individual portions, that is to say the single grains, which belong to each of you have been rendered common property by your consent. Where, however, the mixture took place accidentally, or if Titius made it without your permission, the grain is not considered to be common property because the individual parts exist in their own substance; and, under such circumstances, the grain no more becomes common property than a herd would be considered common if the cattle of Titius should become mixed with yours. If, however, all the grain is kept by either of you, an action for recovery can be brought by the other for his portion of the same; although it is in the discretion of the judge to make an estimate of the value of the grain which belongs to each.

(29) When anyone erects a building with another party's materials upon his own ground, he is understood to be the owner of what he has built, because all structures belong to the soil. Still, the former owner of the materials does not for this reason cease to be their owner, but for a certain time he cannot bring suit to recover their value or for their production, on account of a law of the Twelve Tables by which it is provided that no one can be compelled to remove the materials of another which have been used in his own building, but must pay him double the value of the same, by means of the action designated de tigno injuncto; (and under the term "Tignum" is included all kinds of materials of which edifices are constructed). This rule has been adopted to avoid the necessity of demolishing buildings; but if for any reason the building should be destroyed, the owner of the materials, provided he has not already obtained double their value, can then bring suit for recovery, and to require the production of the same.

(30) On the other hand, where anyone builds a house with his own materials on the land of another, the house becomes the property of the party owning the land. In this instance, however, the owner of the materials loses his property, because it is understood that he voluntarily alienated them and he does so, at all events, if he was not ignorant that he was building the house on another's land; and, therefore, even though the house should be destroyed, he cannot bring suit for the materials. It is well established, however, that if the party who built the house has obtained entire possession, and the owner of the land claims the house as belonging to him, and refuses to pay the value of the materials and the wages of the workman, he can be barred on the ground of fraud, that is, if the party in possession who built the house acted in good faith; for if he knew that the land belonged to someone else, he can be considered to blame because he rashly built on ground which he was aware was the property of another.

(33) Writing, also, even though it be of gold, belongs as much to papyrus and parchment as edifices or crops do to the soil; and, therefore, if Titius has written a poem, a history, or a speech, upon your papyrus or parchment, you, and not Titius, are considered to be its owner. But if you demand your books or parchments from Titius, and are not ready to pay the expense of the writing, Titius can defend himself by the exception on the ground of fraud; at all events, he can do so if he obtained possession of the said papyrus or parchments in good faith.

(34) Where anyone has painted a picture upon the tablet of another, some persons think that the tablet should belong to the picture; and others are of the opinion that the picture, no matter what kind it may be, is a part of the tablet. It appears to Us preferable that the tablet should belong to the picture, for it is ridiculous that a painting by Apelles or Parrhasius should be considered an addition to a wretched tablet. Wherefore, if the owner of the tablet be in possession of the painting, and the artist who painted it demands it, but is unwilling to pay the value of the tablet he can be barred on the ground of fraud; but if he who painted the picture is in possession of the same, it follows that an action can be brought against him by the owner of the tablet; in which instance if he does not pay the expense of the painting, he can be barred by the exception on the ground of fraud, at all events if he who painted the picture obtained possession of it in good faith; for it is evident that if the artist or anyone else acquired the tablet surreptitiously, the owner of the same is entitled to an action of theft.

(39) The Divine Hadrian, in compliance with the principles of natural justice, conceded to the finder any treasure which he found on his own land; and established the same rule where anyone accidentally discovered treasure in a sacred or religious place. But where anyone found treasure on the land of another, not devoting himself to that purpose, but by accident, he conceded half of it to the owner of the land; and, in accordance with the same principle, where anyone found something on the land of the Emperor, he decreed that half of it should belong to whoever found it, and the other half to the Emperor. Agreeably to this rule, if anyone finds treasure on land belonging to the Treasury, or in a public place, half of it belongs to him and half to the Treasury, or the city.