Justinian's Institutes (535)

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


We explained the rights of persons in the preceding Book, now let us consider things; which are either included in our patrimonial estate or are outside of it. Some things are by natural law common to all persons, some are public, some belong to a corporate body, some to no one, the greater part are the property of individuals, and these are acquired in various ways as will appear hereafter.

(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.

(9) Any person voluntarily renders a place religious when he buries a corpse on his own land. He is not permitted, however, to bury it on land which is held in common and still is pure, without the consent of the other owner; but he may make the interment in a tomb which is owned in common, even though the other owner does not consent. Again, where the usufruct belongs to someone else, it has been decided that if the usufructuary does not consent the owner cannot make the place religious. It is lawful to make an interment upon land belonging to another if the latter grants permission to do so, and the place becomes religious even if the owner did not ratify the act until after the corpse was buried there.

(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

the punishment of death has been fixed against those who commit any injury to them; and for this reason We designate as "sanctions" those parts of laws in which We establish penalties to be imposed upon such as are guilty of violation of the laws.

(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.1 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.

(13) The question has arisen as to whether when a wild animal which has been wounded so severely that it can be taken immediately, it becomes your property; and it has been declared by some that this is the case, and that it is to be considered yours as long as you follow it; but that if you desist from following it, it ceases to be yours, and becomes the property of the first occupant. Others hold that it is not yours until you have actually seized it, and We confirm the last opinion because many things may occur to prevent you from seizing it.

(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.

(17) Whatever We take from the enemy immediately becomes ours by the Law of Nations; to such an extent, indeed, that even freemen are reduced to slavery for our benefit, although, nevertheless, if they escape from our control, and return to their own people, they regain their former condition.

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

(19) In like manner, the increase of animals under your control is by the same law acquired by you.

(20) Moreover, whatever a river adds to your land by alluvial soil belongs to you under the Law of Nations, for this deposit is an indiscernible increase; and that which is added in this manner is held to have been added so gradually that you cannot ascertain how much is added at any moment of time.

(21) But if the force of the river removes any portion of your field and conveys it to that of your neighbor, it is evident that it still remains yours; although it is clear that if it continues joined for a long time to the land of your neighbor, and the trees carried away with it have fastened their roots in his soil, from that time forth they are considered as belonging to the land of your neighbor.

(22) When an island arises in the sea, which rarely happens, it becomes the property of the first person who occupies it, for before that it is considered as belonging to no one. But when an island arises in a river, which often occurs, if it be situated in the middle of the stream it is the common property of those who own land on the bank on either side of the river, in proportion to the extent of the land of each one measured along the bank. But if it is nearer to one side than it is to the other, it is the property of those alone who own land on that side near the bank.

Where, however, the river is divided in a certain place, and then farther down the divisions reunite, and thus turn a man's property into an island, the land still belongs to the party who formerly owned it.

(23) Moreover, if the stream, having left its natural bed, commences to flow elsewhere, the original channel belongs to those persons who hold land near the bank, manifestly in proportion to the extent of the property of each one as measured along the said bank; and the new channel begins to be of the same nature as the stream itself, that is to say public. If, however, the stream returns after a time to its original bed, the new channel at once begins to belong to those who own land along its bank.

(24) The case is otherwise, however, where anyone's land is entirely inundated, for a flood does not change the nature of the land; and, on this account, when the water recedes, it is evident that the land belongs to the party who originally owned it.

(25) When anyone has changed the form of property belonging to another, it is customary to make the inquiry which of them is the owner of the same according to natural reason, whether it is he who made the article, or he who was formerly the owner of the material; as for instance, when anyone has made wine, oil, or grain out of the grapes, olives, or ears of another; or has made a vessel out of the gold, silver, or copper of another; or has made mead by mixing wine and honey which belonged to another; or has made a plaster or an eyewash out of drugs belonging to another; or a garment out of his wool; or a ship, a chest, or a bench out of boards belonging to another person. After many disputes between the Sabinians and Proculians, an intermediate opinion was adopted, to the effect that if the new article could be restored to its original materials, he should be regarded as the owner to whom the same formerly belonged; but if it could not be restored, the party who made the article should be considered its owner; for example, a vessel which has been cast can be restored to the rough mass of copper, silver, or gold, but neither wine, oil, nor grain can be reconverted into grapes, olives, or ears, nor can mead be resolved into wine and honey.

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 re-

covered 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.

(31) If Titius sets a plant belonging to another in his own soil, it will belong to him; and, on the other hand, if Titius sets his own plant in the soil of Mævius, the plant will belong to Mævius, if in either case it has taken root, but before it does so it is the property of its former owner. Moreover, from the time that a plant takes root ownership in it is changed to such an extent that if even the tree of a neighbor encroaches upon the land of Titius so that it throws out roots therein, We hold that the tree is the property of Titius, for reason does not admit that a tree should belong to anyone else than to him in whose soil it has taken root; and therefore if a tree planted near a boundary line extends its roots into the soil of a neighbor, it becomes the common property of both parties.

(32) Under the same rule, according to which plants growing on land are attached to the soil, grain after it is sown is also understood to belong to the soil. But just as he who builds upon the land of another has, as We have stated, the right to protect himself by an exception on the ground of fraud, if the owner of the land demands the building of him; so likewise, can a man protect himself by means of the same exception after he has in good faith sowed grain at his own expense upon the land 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.

(35) If any person in good faith purchases real property from someone who is not the owner of the same, but whom he thought to be such, or receives it as a gift or in any other way in good faith, it is founded on natural reason that any crops which he has gathered shall belong to him, on account of his cultivation and care; and therefore, if the owner of the property afterwards appears and claims it, he cannot bring suit for the crops which have been consumed by the former. The same indulgence is however not conceded to a party who knowingly kept possession of the land of another; and therefore he is obliged to account for the crops along with the land, even though they may have been consumed.

(36) He to whom the usufruct of land belongs is not entitled to the crops unless he himself has gathered them; and therefore, although they may be ripe, if he dies before they are gathered they do not belong to his heir, but are acquired by the owner of the property, and the same rule, generally speaking, applies to serfs.

(37) The young of cattle is also classed as their fruit, just as their milk, hair, and wool are; and therefore lambs, pigs, calves, and colts immediately, by natural law, become the property of the usufructuary. The offspring of a female slave is, however, not fruit, and hence belongs to the owner of the property, for it seems absurd that a man should be classed as fruit, when nature has provided the fruits of all things for the benefit of the human race.

(38) Where any person has the usufruct of a flock, he is required, according to the opinion of Julianus, to replace from the young any of the original flock that die, and is also required to replace any dead vines or trees which may have died; for it is his duty as the good head of a household to cultivate the land in a proper manner.

(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.1

1 According to Bracton, who calls it "Vetus depositio pecuniæ, vel alterius metallæ, cujus non extat modo memoria, ut iam dominium non habeat" (III, III, 3), treasure-trove originally belonged to the person who found it. This, however, was not the rule in ancient India. "Of old hoards, and precious minerals in the

(40) Things are likewise obtained by us by natural law through delivery; for nothing more accords with natural justice than to confirm the desire of an owner to transfer his property to another. And, therefore, corporeal property, of every description whatever can be transferred, and as soon as delivery has been made by the owner of the same it is alienated. For this reason stipendiary and tributary lands are alienated in this manner. Lands situated in the provinces are designated stipendiary and tributary, but among these and Italian lands according to Our Constitution no difference at present exists.

(41) Thus, if anything is bestowed by way of gift or dowry, or for any other reason, it is unquestionably transferred; nevertheless, things sold and delivered are not acquired by the purchaser unless he has

earth, the king is entitled to half by reason of his general protection, and because he is the lord paramount of the soil." (Sir Wm. Jones, Laws of Menu, Page 280.)

In England from very early times treasure-trove has been an unquestioned perquisite of the Crown. It was essential that the article should have been concealed in the earth. The first laws on this subject were promulgated during the reign of Edward the Confessor, and provided that treasure found anywhere but on the premises of the Church should be absolutely the property of the King; if found in churches or cemeteries, all the gold discovered belonged to the King, as well as half the silver. "Thesauri de terra regis sunt, nisi in ecclesia aut in cimiterio inveniantur. Et si ibi inveniantur, aurum est regis; et si argentum dimidium est regis et dimidium eeclesiæ ubi inventum fuerit; quecumique sit, dives vel pauper."

Moreover, if any one found an animal or any other property without an owner, he was compelled to bring it to the nearest town and summon the secular and religious authorities, who made proclamation in the surrounding villages in order to ascertain, if possible, to whom it belonged, before its appropriation by the lord. (Ancient Laws and Institutes of England; Leges Regis Edwardi Confessoris XIV, XXIV.) Death or mutilation was the penalty formerly inflicted for the concealment of treasure trove. (Glanvil I, 2.) The offence is now a misdemeanor and is punishable by fine and imprisonment. (Stephen, A Digest of the Criminal Law, Art. 342.)

The Jewish law was entirely founded on the abandonment of the property in Question, and if the person who lost it had renounced all hope of recovering it, or no owner could be heard of, the title vested in the first occupant. (Mishna, Chap. II.) In the United States, treasure-trove, generally speaking, belongs to the finder. The Louisiana law provides that it shall belong to the owner of the land, if found by him; if discovered by another, half shall be his, and half the owner's. (Civ. Cod. of Louisiana, Art. 336.) This is also the rule in Prance, Spain, and Italy. In Portugal, where there is evidence that the treasure has been hidden for more than thirty years, it belongs to the owner of the land; if found by another the latter is entitled to one third of it. (Cod. Civ. Portuguêz, Art. 424.) Sweden requires notice to be published, and if this is not done the finder must, by way of penalty, pay double the value of the article found. (Sveriges Rikes Lag; Strafflag, Kap. XXII, 19.) Austrian law confiscates to the State one third of any treasure found, and divides the remainder equally between the finder and the owner of the soil. (Allegemeines Bürgerliches Gesetzbuch, Art. 399.) The same rule prevails in Germany. (Bürgerliches Gesetzbuch, Sec. 984.) In Japan, the right of ownership vests in the finder after public notice for six months has been given; but if the object was discovered on the premises of another, ownership is equally acquired by both parties. (Civ. Cod. of Japan, Art. 241.) By Mohammedan law, the nature of the property, to some extent, governs its final disposition. If it consists of Moslem coins, it is considered as a trust for the benefit of the owner, and the finder must treat it as such; if the coins are foreign, one fifth is due to the State, as is the case of booty taken in war, and the other four fifths may be retained by the person who recovered it. (The Hedaya, I, I, 5.)

paid the price to the vendor, or made him secure in some way, for example, by giving him a surety or pledge. This regulation was provided by a Law of the Twelve Tables, and also may properly be said to have been derived from the Law of Nations, that is, natural law. If the party who sold the article trusted the purchaser, it must be held that the subject of the sale at once becomes the property of the latter.

(42) It makes no difference whether the owner of the property himself delivers it to another, or someone else does this with his consent.

(43) For this reason when the free control of the entire property has been entrusted by the owner to another party, and the latter sells or delivers a portion of it, he makes the person receiving it the owner of the same.

(44) Sometimes even the bare desire of the owner, without delivery, is sufficient to transfer the title to the property; for example, if anyone sells or presents you with anything which he has already lent or hired to, or deposited with you; as, even if he did not deliver it to you for that purpose, nevertheless, by the very fact that he allowed it to become yours, the ownership of the same is acquired by you, just as if it had been delivered with that very intention.

(45) Again, if anyone sells merchandise stored in a warehouse, he delivers the property in the said merchandise to the purchaser at the same time that he delivers him the keys of the warehouse.

(46) In like manner, sometimes the intention of the owner, when manifested towards an uncertain person, transfers ownership in an article; as, for example when Prætors and Consuls who throw presents into a crowd are ignorant what each individual will obtain, and still, for the reason they wish that what each one secures shall belong to him, they at once render him the owner of the same.

(47) For this reason it seems to be right that anyone who takes possession of property which has been abandoned by its owner immediately acquires the title to it; and that is considered to be abandoned which the owner has designedly cast aside with the intention that it shall no longer be included among his possessions, and therefore has immediately ceased to be its owner.

(48) The case is different where articles are thrown overboard during a storm at sea for the purpose of lightening the vessel; as these remain the property of the owner, because it is evident that they are not thrown overboard with the idea that the owner no longer wishes to have them, but that he and the vessel may the more readily escape the danger of the sea; for which reason, if anyone takes them away with the expectation of profiting by them, whether they have been cast on shore by the waves, or he has obtained them in the sea itself, he commits theft. Such things do not greatly differ from those which fall from a moving carriage without the knowledge of their owners.