Ad Dig. 6,1,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 6.Paulus, On the Edict, Book XXI. Where equal numbers of a flock belong to two parties, neither of them has a right to bring an action for the entire flock, nor even for half of it. Where, however, one has a larger number than the other, so that if those that do not belong to him are removed, he can still claim the flock, those which are not his will not be included among those to be surrendered.

Paulus, On the Edict, Book XXI. In this instance an action can also be brought for the division of common property, but a party will be liable to an action for theft as well as to one for the production of property in court, if he fraudulently manages to have the silver commingled; as in an action for the production of property the amount of the value must be taken into consideration, and, in one for the division of property in common or in one for recovery, the party whose silver was greater in value will obtain the most.

Paulus, On the Edict, Book XXI. When suit is brought for movable property, where is it to be delivered, that is, if it is not actually in the hands of the possessor? It is not a bad regulation where a possessor in good faith is the party sued, for the property to be delivered either where it is situated, or where the action to recover it is brought; but this must be done at the expense of the plaintiff, which has been incurred through travel by land and sea, in addition to the cost of maintenance,

Paulus, On the Edict, Book XXI. Where, indeed, the defendant is a possessor in bad faith who obtained the property in some other place, the same rule applies; but if he removed it from the place where issue was joined and took it elsewhere, he should, at his own expense, deliver it at the place whence he removed it.

Paulus, On the Edict, Book XXI. If, however, the plaintiff should prefer to make use of the action under the Lex Aquilia, the possessor must be released from liability. Therefore the choice is given the plaintiff of obtaining not triple, but double damages.

Paulus, On the Edict, Book XXI. Undoubtedly, however, even where a slave dies, some decision must be rendered with reference to profits and the offspring of a female slave, and a stipulation entered into to provide for eviction; for the possessor, after issue has been joined, is certainly not liable for misfortune. 1It is not understood to be a case of negligence where the possessor dispatched a ship, which is the subject of litigation, across the sea at a suitable time, even though she may have been lost; unless he committed her to the care of incompetent persons.

Paulus, On the Edict, Book XXI. Where a slave runs away from a bona fide possessor, we may ask whether the slave was such a one as ought to have been guarded? For if he seemed to have been of good reputation so that he should not have been kept in custody, the possessor must be released from liability; but if, in the meantime, he has obtained ownership of him by usucaption, he must assign his rights of action to the plaintiff, and surrender the profits obtained while he was in possession of the slave. If, however, he had not yet obtained ownership of him by usucaption, he must be released without giving security, so that he need not bind himself to the plaintiff to pursue the slave; as the plaintiff himself can do so; but, in the meantime, while the slave is in flight, can he become his owner through usucaption? Pomponius says in the Thirty-ninth Book of the Edict, that this is not unjust. If, however, the slave should have been guarded, the possessor will be liable for the slave; so that, even if he had not acquired ownership of him by usucaption, the plaintiff must assign to him his rights of action. Julianus, however, thinks in instances of this kind, that where the possessor of the slave is released from liability on account of his flight, although he is not compelled to furnish security to pursue him, he must give a bond that if he should secure him, he will give him up. Pomponius approves this opinion in the Thirty-fourth Book of Various Passages, and it is the better one.

Paulus, On the Edict, Book XXI. A person is entitled to an action in rem where he has become the owner of property either by the Law of Nations, or by the Civil Law. 1Sacred and religious places cannot be sued for by actions in rem, as if they were the property of individuals. 2Where anyone attaches to his own property something which belongs to another, so that it becomes a part of it; as for instance, where anyone adds to a statue of his own an arm or a foot which belongs to another, or a handle or a bottom to a cup, or a figure in relief to a candlestick, or a foot to a table, the greater number of authorities very properly state that he becomes the owner of the whole, and that he truthfully can say that the statue or the cup is his. 3Moreover, anything which is written on my paper or painted on my board, immediately becomes mine; although certain authorities have thought differently on account of the value of the painting; but where one thing can not exist without the other, it must necessarily be given with it. 4Wherefore, in all these cases in which my property draws the property of another to itself by superiority, it becomes mine; and if I bring suit to recover it, I can be compelled by an exception on the ground of fraud, to pay the increased value of the article. 5Ad Dig. 6,1,23,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 6; Bd. I, § 189, Note 1.Again, whatever is joined or added to anything else forms part of it through accession, and the owner cannot bring suit to recover it so long as the two articles remain attached; but he can institute proceedings for them to be produced in court, in order that they may be separated, and the suit for recovery be brought, except of course, in the case stated by Cassius, where articles are welded together; for he says that if an arm is welded to the statue to which it belongs, it is absorbed by the unity of the greater part, and that anything which has once become the property of another cannot revert to its former owner, even if it should be broken off. The same rule does not apply to anything that is soldered with lead; because welding causes a mingling of the same material, but soldering does not do this. Therefore, in all these instances, an action in factum is necessary; that is where one for production, or in rem does not lie. But with reference to articles which consist of distinct objects, it is evident that the separate parts retain their peculiar character; as for instance, separate slaves and separate sheep; and therefore I can bring suit for the recovery of a flock of sheep, as such, even though your ram may be among them, and you yourself can bring suit to recover your ram. The rule is not the same where an article consists of coherent parts, for if you attach the arm of some other person’s statue to a statue of mine, it cannot be said that the arm is yours, because the entire statue is embraced in one conception. 6Where the building materials of one person have been used in the house of another, an action will not lie to recover them on account of the Law of the Twelve Tables; nor can suit be brought for the production, except against the party who knowingly used the materials of another in the construction of his own house; but recourse must be had to the ancient action entitled de tigno juncto, which is for double damages, and is derived from the Law of the Twelve Tables. 7Ad Dig. 6,1,23,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 175a, Note 2; Bd. I, § 182, Note 13.Moreover, where anyone builds a house on his own ground with stone belonging to another, he can indeed bring suit to recover the house; but the former owner can also bring an action to recover the stone, if it is taken out, even though the house may have been demolished after the time necessary for usucaption has elapsed, subsequent to the date when the house comes into the possession of a bona fide purchaser; for the individual stones are not acquired by usucaption, even if the building becomes the property of another through lapse of time.

The Same, On the Edict, Book XXI. But if, when I wish to sue Titius, anyone should state that he is in possession, and thereupon volunteers in defence of the case, and I prove this by testimony during the trial, judgment must unquestionably be rendered against the other party. 1A party should be in possession not only when issue is joined, but also when the decision is rendered. If he was in possession at the time that issue was joined, but lost it without fraud on his part when the case was decided, he should be released from liability. Again, if he was not in possession at the time issue was joined, but had possession when the case was decided, the opinion of Proculus must be accepted, namely: that, by all means, a decision must be rendered against him, and hence all profits from the time he acquired possession will be included in the judgment. 2Ad Dig. 6,1,27,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 15.Where a slave for whom suit is brought has become depreciated in value through the malice of the possessor, and afterwards dies, not through the fault of the former, but from some other cause; no estimate shall be made of the amount of his diminution of value, because it makes no difference to the plaintiff. This, however, has reference only to the action in rem; for the right of action under the Lex Aquilia continues. 3A party who, before issue was joined, has fraudulently relinquished the possession of property, is liable to an action in rem; and this may be inferred from a decree of the Senate by which it is provided, as we have already stated, that fraud previously committed is included in the suit for the recovery of an estate; for if fraud which has been committed is embraced in such an action, which itself is one in rem, hence it is absurd for fraud already committed to be included in an action in rem for the recovery of some specific article. 4Where a father or the owner of a slave is in possession through his son or through the slave, and either of the latter should be absent at the time when judgment is rendered, without the fault of the said father or owner; time should either be granted, or security be furnished for the delivery of possession. 5When the possessor incurs any expense with reference to the property for which an action is brought, before issue is joined, an account should be taken of said expense by means of an exception on the ground of fraudulent intent; if the plaintiff perseveres in the action to recover his property, without refunding the expenses. The same rule will apply where the possessor defends a slave in a noxal action, and having lost the case, pays the damages; or, by mistake, builds a house on unoccupied land which belongs to the plaintiff, unless the latter will permit him to remove the building. Certain authorities have stated that this also should be done by the Court that hears a case for the recovery of a dowry which involves land given to the wife. But if you give instruction to your slave while he is in your possession, Proculus thinks that this rule should not be observed; because I ought not to be deprived of my slave, and the same remedy cannot be applied which we have referred to above in the case of the land.

Paulus, On the Edict, Book XXI. But where a demand is made for profits in the case of a slave for whose recovery an action is brought, the puberty of the slave must not only be considered, but also what services he could render, even if he had not arrived at that age. It would, however, be dishonorable for the plaintiff to demand an accounting for the profits which might have been obtained through the skill of the slave, because he obtained this at the expense of the possessor.

Paulus, On the Edict, Book XXI. Not only the profits which have been collected, but also those which could honestly have been collected, must be estimated; and therefore, if the property which is the subject of litigation should be lost either through the fraud or negligence of the possessor, Pomponius thinks that the opinion of Trebatius is the better one, namely, that an account must be taken of the profits to the extent they would have existed if the property had not been destroyed, that is to say, until the time the decision was rendered; and this view is also accepted by Julianus. Under this rule, if the owner of the mere property brings an action and the usufruct is lost through delay, an account of the profits must be calculated from the time when the usufruct was separated from the mere ownership.

Paulus, On the Edict, Book XXI. And, on the other hand, if the plaintiff should bequeath the usufruct of certain property, after issue has been joined, some authorities very properly are of the opinion that no account of the profits should be taken after the time when the usufruct was separated from the property. 1Where I bring an action for land which does not belong to me, and the judge states in his decision that it is mine, he should also render judgment against the possessor for the profits; for he must be ordered to deliver the profits by the same mistake, as the plaintiff should not relinquish the profits for the benefit of the possessor, who has lost the case; otherwise, as Mauricianus says, the judge cannot decide that delivery must be made of the property; and why should the possessor hold what he could not have held if he had relinquished possession at once? 2A plaintiff who has accepted the estimate of property is not compelled to secure the possessor against eviction; for the possessor must blame himself if he did not surrender the property. 3Where property cannot be divided without being ruined, it is established that one can bring an action for a share of the same.

Paulus, On the Edict, Book XXI. (That is to say, one who has a right to occupy the surface of ground belonging to another, on the condition of paying a certain rent for it),

Paulus, On the Edict, Book XXI. Some lands belonging to towns are called “vectigales”, and others are not. Those are styled vectigales which are leased perpetually, that is to say, under an agreement that so long as the rent is paid for them it shall not be lawful to take them away from those who leased them, or from their successors. Lands are not of this description which are leased for cultivation under the terms by which we are accustomed to rent them privately for that purpose. 1Where parties lease land from municipalities in perpetuity, although they do not become the owners of the same it is established that they are, nevertheless, entitled to an action in rem against a possessor, and even against the members of the municipality themselves:

Paulus, On the Edict, Book XXI. The same rule applies where they have made a lease for a specified time, and the term agreed upon has not yet expired.

Paulus, On the Edict, Book XXI. Where a party has joined issue with reference to an usufruct, he will be discharged if he relinquishes possession without fraud; but if he voluntarily undertook to defend the case, and joined issue as if he were the possessor, judgment shall be rendered against him.

Paulus, On the Edict, Book XXI. Some servitudes are attached to the soil, others to the surface.

Paulus, On the Edict, Book XXI. A servitude can be either released or created with reference to a certain part of the land.

Paulus, On the Edict, Book XXI. Where land belonging to the public or a highway intervenes, this does not prevent the servitudes of a right of way, or for driving cattle, or for raising the height of a house, from being enjoyed; but it does interfere with the right of supporting a beam by a wall, or of a projecting roof, and it also interferes with the servitudes for the flowing and dripping of water, for the reason that the sky over the aforesaid ground should be free. 1Where the usufruct of a house is yours, and I have the mere ownership of the same, and it is subject to the support of the building of a neighbor; suit can be brought against me for all of it, but no legal proceedings can be instituted against you.

The Same, On the Edict, Book XXI. Where anyone is borne on a chair or a litter, he is said to have the right to go on foot, and not to drive; but a party who has only the right to pass on foot, cannot drive a beast of burden. If he has the right to drive cattle, he can drive a wagon or beast of burden, but in neither instance has he a right to haul stone or timber. Some authorities hold that he cannot carry a spear upright, because he would not do this if he were either walking or driving, and fruit might be injured by doing so. A party who has a right of way has also the right to pass on foot and to drive; and the greater number of authorities hold that he can drag objects also, and carry a spear upright, provided he does not injure the fruit. 1In the case of rustic estates, a field lying between them which is not subject to a servitude renders a servitude inoperative.

Paulus, On the Edict, Book XXI. And, therefore, if you have a house between mine and that of Titius, I can impose a servitude on the house of Titius to prevent him from raising his any higher, although a servitude of this kind can not be imposed on yours; because so long as you do not raise yours, the benefit of the servitude remains.

Paulus, On the Edict, Book XXI. The result of these actions is that the plaintiff, if he gains the case, by application to the judge will either have relief granted or security furnished. The relief which should be granted is that the judge must order the defendant to repair the defect of the wall and place it in a proper condition. The security is, that the judge shall order him to give a bond for the repair of the wall, and to provide therein that neither he nor his successors will prevent the plaintiff from raising it higher, and will maintain the edifice after it is built; and if he gives this security he shall be discharged from liability. But if he does not either allow the relief to be granted, or furnish security, he shall be ordered to pay damages to the amount to which the plaintiff will make oath in court.

Paulus, On the Edict, Book XXI. If you build on a place through which I have a right of passage, I can allege in a suit that I have a right to walk and drive there; and if I prove this, I can prevent you from working. Julianus also says that if a neighbor of mine, by building upon his land, avoids receiving the drip from my roof, I can bring an action based on my right; that is to say, the right to discharge the water of my roof on his premises; just as we have stated with respect to the right of way. But where he has not yet built, the other party, whether he has the usufruct or the right of way, can set forth that he has a right to walk or drive, and the right of enjoyment; but if the owner has already built, he who is entitled to the right of way can still allege that the right belongs to him, but the usufructuary cannot do so, because he has lost the usufruct; and therefore Julianus says that an action on the ground of fraud should in this case be granted. On the other hand, if you build across a right of way to which my estate is subject for your benefit, I can properly allege that you have no right to build, or to have a building there; just as I could do if you built anything on unoccupied land which belongs to me. 1Where a man has been accustomed to use a broader or a narrower road than he was entitled to, he will retain the servitude; just as a party who has a right to use water and uses it mixed with other water retains his right.

Paulus, On the Edict, Book XXI. Where a man has the right to both walk and drive, and only uses that of walking during the period established by law, the right to drive is not lost, but still remains in force; as Sabinus, Cassius, and Octavenus hold; and a party who has the right to drive can also make use of that to walk.

Paulus, On the Edict, Book XXI. To “produce” is to place property publicly in the power of another, so that he who brings a suit may have an opportunity for trying it,

Paulus, On the Edict, Book XXI. The banks contiguous to a tract of land which has been sold, are not embraced in the measurement of the latter, because they do not belong to anyone, but are open to all by the Law of Nations; and this also applies to highways, and religious and sacred places. Therefore it is customary to provide for any advantage of the vendor, by expressly stating that highways, the banks of streams, and public places are not included in the measurement of the property.

The Same, On the Edict, Book XXI. If you wound a slave that has been leased to you, the action under the Lex Aquilia or the one on lease can be brought on account of the wound, but the plaintiff must be content with one or the other of these; and this is a part of the duty of the judge before whom proceedings based on the lease are instituted.

The Same, On the Edict, Book XXI. If you purchase property from one whom the Prætor has forbidden to alienate it, and you are aware of the fact, you cannot acquire it by usucaption.

Paulus, On the Edict, Book XXI. We very properly say that a tract of land entirely belongs to us, even when another is entitled to the usufruct of the same; for the reason that the usufruct does not constitute a part of the ownership, but of a servitude, as, for instance, a right of way, or a right of passage. Nor is it incorrect to say that something is entirely mine, when no part of it can be said to belong to another. This was the opinion of Julianus, and it is correct. 1Quintus Mucius states that by the term “part” an undivided share in something is meant; for after property has been divided not a part, but all of it is ours. Servius very properly holds that the term “part” is applicable to both the above-mentioned cases.

Paulus, On the Edict, Book XXI. The term “alienation” also includes usucaption, for it is difficult to understand that he who permits property to be acquired by usucaption should not be considered to have alienated it. He, also, is said to alienate who loses servitudes by failing to make use of them. Anyone who does not avail himself of the opportunity of acquiring property is not understood to alienate it; as, for instance, one who abandons an estate, or fails to make a choice within a certain prescribed time. 1A proposition which does not include either a conjunctive or a disjunctive particle should be determined according to the intention of the party making it.

The Same, On the Edict, Book XXI. A creditor is not guilty of fraud who receives that to which he is entitled. 1When the principal thing ceases to exist, its accessories also disappear.