Massachusetts, since the revolution, pursued the policy of the colony law, and disposed of estrays, lost money, and goods, if unreclaimed for a year, by giving one half of the proceeds to the finder, and the other half to the poor of the town; and those statutes have been extended in practice to all goods, and moneys lost, hidden, waived, or designedly abandoned, when no owner appears." This is, upon the whole, as wise and equitable a regulation as any that has ever been made upon the subject at any 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 American Law, not unreasonably concludes, 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.

"

II. Of 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 or confusion of goods.

The right of accession is defined in the French civil coded to be the right to all which one's own property produces, whether that property be moveable or immoveable, 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 or articles made by one person out of the materials of another, are all embraced by this defini

tion. 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 principal nations of Europe. By means of Bracton" 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 by 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

if 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, and recognised in Putnam v. Wyley. The Roman law made a distinction in respect to the offspring of slaves, and so does the civil code of Louisiana 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 labour of the latter, who furnishes the principal materials, the property in the joint product is in the latter by right of accession, This rule of the Roman and English law was acknowledged in Merritt v. Johnson, and it has been applied by Molloy to

a De acqui. rerum Dom. b. 2. ch. 2. and 3.

b Pothier, Traité du Droit du Propriété, No. 150. to No. 193, Toullier, Droit Civil Francais, tom. 3. No. 106. to No. 150.

c Owen, 139.

d 8 Johns. Rep. 432.

e Inst. 2. 1. 37.

f B. 2. tit. 3. sec. 2. art. 539.

g1 Johns. Rep. 473.

h De Jure Maritimo, b. 2. c. 1. s. 7.

the case of building a vessel. According to the doctrine in the Pandects," 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 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 anoother; 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. The same distinctions apply to trees, or vines planted, 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 canvass of B., in that case the rule would be reversed, for though the painting could not subsist without the canvass, and the canvass could subsist without the painting, yet propter excellentiam artis, the canvass 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, that a picture of Apelles, or Parrhasius, should be deemed a mere ac

a Dig. 6. 1. 67.

b De rer. div. 2. 1, s. 34.

cessary 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.

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 original materials; as if leather be made into shoes, or cloth into a coat, or a tree be squared into timber." 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. The Supreme Court of this state, in Betts & Church v Lee,b 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

a 5 Hen. VII. 15. 12 Hen. VIII. 10. Fitz. Abr. Bar. 144. Bro. tit. Property, 23.

b5 Johns. Rep. 348.

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. 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 would change the title 10 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, 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 he who made it is deemed to be the owner, and he is only to make satisfaction to the former proprietor for the materials which he had so converted.

The English law has been uniform on this subject, from the time of Bracton, who took these distinctions from the civil law; and they have been gradually incorporated into the common law, by a series of judicial decisions.

With respect to the case of a confusion of goods, where those of two persons are so intermixed that they can no longer be distinguished, each of them have 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

a Bro. tit. Property, pl. 23. VOL. II.

b Inst. 2. 1. 25.

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