551-570. Title acquired by war.

551. Booty.

552. Confiscation of individual property.

554-570. Prize.

555. Who may make a prize.

559. What may be captured.

562. Where a capture may be made.

563. What is a capture.

564. Postliminy.

565. Ransom.

566-570. Adjudication as to prize or no prize.

567. What courts have jurisdiction.

569. Over what subjects jurisdiction extends.

570. Effect of decree of prize court.

487. Property may be acquired in various ways, and we shall first consider the original modes of acquiring personal chattels. The way in which such property is acquired by derivative title will form the next subject.

488. There is an important distinction between the effect of original and that of derived acquisition. When the acquisition is original, the right thus acquired to the thing becomes property, which must be unlimited and unqualified; since no one but the occupant has any right to the thing, he must have the whole right of disposing of it. But with regard to derived acquisition it may be otherwise, for the person from whom the thing is acquired may not have an unlimited right to it, or he may transfer or convey it with certain reservations of right.

489. Title by original acquisition is either title by occupancy or title by intellectual labor. These will be considered in order.

490. Title by occupancy is either simple or mere occupancy; or consequent

occupancy.

491. In the origin of society we have seen that all things belonged to all men by a kind of negative community, so that each could be taken by the first occupant. In the course of time most things were appropriated and became private property, and the right to them became exclusive; but others remain still in the negative community, over which no one has a right, and, until appropriated, they belong to no one. These are subject to the same right of appropriation, and may be seized by the first occupant: quod nullius est id ratione naturali occupanti conceditur. No one has a right to that which is res nullius, consequently, whoever possesses rem nullius, possesses that which no one has a right to take from him. It is therefore his property. In the advanced state of civilization with which we are blessed, this kind of property is not common, but still it may be found.

492. Wild animals, whether they be quadrupeds, birds, or fishes produced in the sea, the heavens or the earth, become the property, by natural law, of whoever takes possession of them. It is the same when the animals or birds are caught on the premises of him who seizes them, or on those of another, but this does not authorize any one to commit a trespass for the purpose of hunting.

When taken, such an animal belongs to the captor; while the animal is living, he has a qualified property, which continues while he remains in the possession of the taker; but if the animal should escape and regain its natural liberty, he loses his right. The animal has regained his natural liberty when he gets out

of sight, or if in sight, he is under such circumstances that pursuit would be difficult.2

493. Gems, shells, precious stones, found on the sea shore are subject to become the property of the first fortunate finder, because they do not belong to any one.3

3

494. Things that have been abandoned by the owner belong to the first occupant; but if the owner should repent of having thrown away or abandoned the thing, he may retake it before any one else, and he regains his former title. To entitle the finder to such chattels, the former owner must have wholly abandoned his title; if, as in the case of a wreck, he has parted with the possession on the ground of necessity, or with an evident intention of resuming it, the property has never been abandoned.*

495. The acquisition of things tangible by occupancy must be made corpore et animo, that is, by an outward act signifying an intention to possess. The necessity of an outward act to commence holding a thing in dominion is founded on the principle that a will or intention cannot have legal effect without an outward act declaring that intention, and, on the other hand, no man can be said to have the dominion over a thing which he has no intention of possessing as his. Therefore a man cannot deprive others of their right to take possession of vacant property by merely considering it as his without actually appropriating it to himself; and if he possesses it without any will of appropriating it to himself, as in the case of an idiot, it cannot be considered as having ceased to be res nullius. The outward act or possession need not, however, be manual; for any species of possession, or as the ancients expressed it, custodia, is in general a sufficient appropriation.5

6

496. The right of acquiring personal chattels by finding, is limited to those found upon the surface of the earth. It does not extend to goods found derelict at sea, though abandoned without hope of recovery, nor to goods or money found hidden in the earth, known by the name of treasure trove.7 In England such goods belong to the crown; in this country the title to them has perhaps been seldom questioned in the hands of the finder, except by the real owner.

497. No title by occupancy can in this country be gained in waifs, or stolen goods thrown away or scattered by a thief in his flight, in order to effect his escape. In England they belong to the king; here this prerogative has never been adopted by the government against the true owner, and never, perhaps, put in practice against the finder, though against him there would be a better reason for adopting it.

8

498. Nor can any title be gained by occupancy of estrays, or cattle whose owner is unknown; or of wrecks, or such goods as after a shipwreck are cast upon land by the sea, and left there, within some county, so as not to belong to the jurisdiction of the admiralty, but to the common law.9

2 Grotius, De Jur. Bell. lib. 2, c. 3, 5; Dig. 41, 1, 3, 2. The Romans considered things taken in war in the same light; they belonged to the captor until they were retaken or escaped. Dig. 41, 1, 5, 7, 7; Dig. 49, 15, 19, princ.; Inst. 41, 2, 1, 1.

3 Sea weed, when cast upon the shore, belongs to the owner of the adjoining land. 2 Johns. N. Y. 313, 323. See 5 Vt. 223.

It is now well settled in the case of a wreck derelict at sea, the title still remains in the owner, and the finder is only a salvor, and as such entitled to salvage. The fact of its being derelict merely affects the question of amount of salvage. Two Hundred and Ten Barrels of Oil, 1 Sprague, Dist. Ĉt. 91; Post v. Jones, 19 How. 161. 5 Grotius, 2, 8, 11, note 1.

2 Kent, Comm. 357, 4th ed.; The Aquila, 1 C. Rob. Adm. 32; The King v. Property Derelict, 1 Hagg. Adm. 383; Peabody v. Proceeds of 20 bags of cotton, 3 Am. Jur. 119; The Emulous, I Sumn, C. C. 207; 1 Ware, Dist. Ct. 41.

$ Leçon, Dr. Civ. Rom. & 350-352.

82 Kent, Comm. 257, 4th ed.

2 Inst. 167; Bracton, 1, 3, c. 3; Mirror, c. 1, s. 13, and c. 3.

The title to lost goods is in most of the states regulated by statute. In the absence of any statute, the title is in the finder, against every one but the owner. The statutes usually provide that after certain prescribed attempts to find the owner and after a certain delay, the title shall vest either in the public or in the finder, or be divided between them.

499. The ownership of a thing, whether real or personal, movable or immovable, carries with it the right to all the thing produces, and to all that becomes united to it, either naturally or artificially; this is called the right of accession, a right grounded on that of occupancy.

The doctrine of accession has been adopted from the civil or Roman law, and, contrary to their custom, English lawyers have acknowledged the source, in this instance, from which so many wise rules flowed. It was introduced by Bracton, and the good sense of the doctrine recommended it to the courts, who incorporated it into our system.10 Accession is natural or artificial.

500. Natural accession consists in the right to emblements, and the right to the young of animals.

501. By emblements is understood the crops growing in the ground. By crops is here meant the products of the earth which grow yearly and are raised by annual expense and labor, such as grain; but not fruits which grow on trees, not to be yearly planted, grass and the like, though they are annual."1 They belong to the owner of the land, or to the tenant who occupies it, who has sown and planted it. For some purposes emblements are to be considered as personal property, for on the death of the owner, they go to the executor, and not to the heir; but in some respects they are treated as real estate, and, for that reason, at common law they are not the subject of larceny.12

502. The owner of a female animal is entitled to all her brood, according to the maxim partus sequitur ventrem.13

If the animal is hired for a time, the offspring belongs to the hirer who is the temporary owner.14

503. It is difficult, if not impossible, to reduce to general and precise rules the right of accession, which has for its objects two personal things belonging to two different owners; this right must always be subject to the rules of natural equity.

These rules may be arranged into three classes, which correspond to the three artificial kinds of accessions: adjunction, or the union by adjunction of two things which belong to different owners; specification, or the formation of a new species, with personal chattels belonging to another; and commixtion, or the mixture of several things belonging to several owners.

504. By adjunction is meant the union which takes place when the thing belonging to one person is attached or united to that which belongs to another, in such a manner as to form a whole, and yet separable, so that one can subsist without the other; for example, a diamond enchased in a ring; silk thread used to make another man's coat. In these cases, when the adjunction is made by mistake, the whole belongs to the owner of the principal article, upon condition, however, that he shall pay to the other the value of the goods which have been so employed. But the law will not permit one man to gain title in another's chattels, upon the principle of accession, if he took the property wilfully as a trespasser.

15

505. Specification is the making a new species out of materials of a different nature; as, cider out of apples; flour out of wheat. When a man

19 2 Sharswood, Blackst. Comm. 404.

123 Inst. 109.

"Putnam v. Wyley, 8 Johns. N. Y. 432.

"Coke, Litt. 55 b; Comyn, Dig. Biens, G. 13 Dig. 6, 1, 5, 2; Inst. 2, 1, 19.

15 Stevens v. Briggs, 5 Pick. Mass. 177; Pulsifer v. Page, 32 Me. 404.

takes lawfully the property of another, and changes its nature by making a new species, a question arises to whom does the whole belong? In some cases the substance carries it over the form, in others the form is preferred to the substance.

It seems to be settled that whatever alteration of form any property may have undergone, if taken tortiously, the owner of the original chattel is entitled to it in its new shape.16

But if the thing changed be taken lawfully, as, when a man believing wood to belong to him, made a table out of it; or money belonging to another which he believed to be his own, and worked it up into a vase, according to the Roman law, he would be the owner of the table or of the vase, but liable to the true owners of the wood or the money for its value." Upon the principle that the writing and the painting in the following cases is the principal, a picture painted on canvas would belong to the painter, he being liable to the owner of the canvas for its value; and the author of a poem or history, written by him by mistake on the paper of another, would belong to the author, he paying for the paper.18

If the material taken and converted into a new species cannot be changed back to what it was, as if wheat be made into flour, or apples into cider, the new articles belong to the new proprietors, and they become subject to the owners of the materials for their value.19

506. Confusion of goods takes place when the goods of two or more persons become mixed together so that they cannot be separated; as, if the cider of two different persons be poured into the same barrel; when the things put together are capable of separation, the mixture is called commixtion; as, if the flock of sheep belonging to A, be mixed with that of B.

20

In cases of commixtion the property in the things is not changed; it may be separated, and the owner of each is entitled to that which belongs to him." 507. In cases of confusion the rules vary according to the circumstances. When the confusion takes place by the mutual consent of the owners, they have an interest in the mixture in proportion to their respective shares.21

When the confusion arises from inevitable accident, or by the act of a stranger, the rule of the civil law, which deemed the property to be held in common, might be adopted; and it would make no difference whether the mixture produced a thing of the same sort or not; as, if the wine of one were poured into a cask containing the cider of the other, or the gold of one and the silver of another be melted together and made into a vase.22

When a man mixes his own goods with those of another wilfully, and thereby makes a confusion, the whole of the mass belongs to him whose rights have

16 Fitzherbert, Abr. Bar. 144; La. Civ. Code, art. 494, 495; Church v. Lee, 5 Johns. N. Y. 348; Worth v. Northam, 4 Ired. No. C. 102.

17 Inst. 2, 1, 25, 34; 2 Sharswood, Blackst. Comm. 404.

18 2 Kent, Comm. 362, 363; 3 Toullier, n. 116.

19

Justinian, Inst. 2, 1, 25, 34; Silsbury v. McCoon, 6 Hill, N. Y. 425. Where the crew of a shipwrecked vessel built a new vessel out of the remnants of the wreck as a means of escape and of saving some of the cargo, it was held that the crew were the owners of the new vessel. The Holder Borden, 1 Sprague, Dist. Ct. 144.

20 Holbrook v. Hyde, 1 Vt. 286.

21 2 Sharswood, Blackst. Comm. 405; 6 Hill, N. Y. 405.

22 The rule in these cases is thus laid down in Justinian's Institutes, lib. 2, t. 1, ? 27: Si duorum materiæ ex voluntate dominorum confusæ sint, totum id corpus, quod ex confusione fit, utriusque commune est: veluti si qui vina sua confuderint, aut massas argenti vel auri conflaverint. Sed et si diversæ materiæ sint, et ob id propria species facta sit; forte ex vino et melle melsum, aut ex auro et argento electrum, idem juris est: nam et hoc casu commumem esse speciem non dubitatur. Quòd si fortuitu, et non voluntate dominorum, confusæ fuerint, vel ejusdem generis materia, vel diversa, idem juris esse placuit. See Dane, Abr. c. 76, art. 5, 19.