of it in the case of a picture, §34. In. de rer. divis. l. 9. §2. D. de adqu. dom. And therefore the joined things ought to be assigned to him whose part is of the greatest price,* either on account of its rarity, or of his affection, labour, care and keeping; and he ought to be condemned to make an equivalent to the other for what was his, if he insists upon it, and does not rather choose to make a present of it to him.
SECTION CCLIX
What is just with respect to specification.
Hence we may plainly see what ought to be determined in the case of specification, by which a new form is given to materials belonging to another. For since very frequently all the affection or value is put upon the form on account of the workmanship or art, and none at all is set upon the substance (§258), a new species will rightly be adjudged to him who formed it;† but so as that he shall be obliged to make a just equivalent for the price or value of the materials, and shall be liable to punishment, if there be any fraud or knavery in the case (§256). So Thomasius, in the differtation above quoted, §43. & seq. Yet for the same reason above mentioned, the owner of the substance ought to be preferred, if it be rarer and of greater value than the form added to it by another’s labour and art: e.g. if one shall make a statue or vase of Co-<191>rinthian brass, amber, or any precious matter belonging to another, the owner of the materials shall have it, but he shall be obliged to pay for the workmanship, provided the fashioner acted bona fide, i.e. without any fraudulent design.
SECTION CCLX
What with regard to adjunction, inclusion, &c.
Again, adjunction is no inconsiderable species of industrious accession, when something belonging to another is added to our goods by inclusion, by soldering with lead, by nailing or iron-work, by writing, painting, &c. Now since inclosing is often of such a kind, that the things joined may be severed without any great loss, in such cases the things may be separated, and every one’s own restored to him, and this is equal (§257): There is certainly no reason why the gold may not be restored to whom it belongs, when another’s precious stone is set in it, and the gem to its owner. And the same holds with regard to soldering, fastening, inter-<192>weaving, and other such like cases, when the things can be separated without any considerable loss: Otherwise the joiner ought to be preferred, because the substance rarely admits of any price of affection (§258).*
SECTION CCLXI
What as to building upon, &c.
If any one builds upon his own ground with the materials of another person, when there was no knavery in the design, and the building is of timber, there is no reason why, if the mistake be very soon discovered, the building may not be taken down, and the timber be restored to its proprietor† (§257). But if the building be of stone, or if the timber would afterwards be useless to its owner, it will then be most equal to say, that the builder should have the property of the building, but be obliged to make a just satisfaction, for the materials, and be moreover liable to punishment, if there is any knavery in the case (257 and 258). If one build with his own materials upon another’s ground, if the building can be taken down without any considerable loss, it ought to be done (§257); or what admits of a price of affection ought to be adjudged to the proprietor of the ground (§258), unless the building be plainly of no use to the lord of the ground, in which case <193> the builder retaining the building to himself, is bound to pay the worth of the ground, and if there be any bad intention, he is moreover liable to punishment.
SECTION CCLXII
As to writing and painting.
There is less difficulty as to writing and painting. For since those things upon which another sets no value, are to be left to him who puts a value upon them (§258), and the value for the most part falls upon the writing and painting, and never upon the cloth or paper, the paper ought to yield to the writing, and the board or cloth to the painting, if the writer and painter will make satisfaction for them.* And if the painting and writing have no value, as if one should scrible a little upon my paper, or dawb my board with fooleries, even in this case, the writer and painter ought to take the thing, and pay the value of the paper or board by the first axiom (§256). <194>
SECTION CCLXIII
With respect to confusion and mixture.
Further, as to the mingling of liquids, or the commixture of dry substances, tho’ the Roman lawyers have treated of a difference with much subtlety, l. 23. §5. D. de rei vind. yet there is none. For if things be mixed or confounded by the mutual consent of parties, the mixed substance is common, and ought to be divided between them proportionably to the quantity and quality of the ingredients (§256). If it be done against the will of one of them, then the substance, which is of no use, ought to be adjudged to the mixer, and he ought to make satisfaction, and to undergo a penalty if he had any bad or fraudulent intention (§256); but yet, if one would rather have a part of the substance than the price of his materials, there is no doubt that he now approves the mixture which he at first opposed, and therefore a proportionable part of the common matter cannot be refused to him.* <195>
SECTION CCLXIV
About mixed accessions, sowing and planting.
To conclude; by the same principles may we determine concerning sowing and planting, which were above referred to the class of mixed accessions, (§250). For trees and plants, before they have taken root, may be severed from the soil without any great loss, and so be restored to their owners (§257); but when they have taken root, as likewise seed sown, seeing they cannot easily be separated from the soil, and yet do not admit of a price of fancy or affection, they are acquired to the proprietor of the soil, he making satisfaction for the value of the trees or seed, and the expences of culture (§258), unless, in this last case, the proprietor of the soil is willing to leave the crop to the sower for a reasonable consideration.†
SECTION CCLXV
About the fruits of trees in one’s neighbourhood.
As to a tree in our neighbourhood, he who plants it, consents that a part of its branches should hang over into the court of his neighbour; and the neighbour, who has a right to exclude others from his court, by not doing it, also consents to it; wherefore the accession being made with the mutual consent of both parties, the tree is common, (§256); and for this reason, while it stands in the confines, it is common in whole, and when it is pulled up, it is to be divided in common: so that in the former case the leaves and fruits are in com-<196>mon; and in the latter case the timber is to be divided between the two neighbours in proportion.*
REMARKS on This Chapter
The questions in this chapter, however intricate they may appear at first sight, or as they are commonly treated by the doctors of law, are in themselves very simple and easy. Nothing more is necessary than to state them clearly, or in the simplest terms, in order to discover on which side the least hurt lies. Our Author’s divisions and definitions are exceeding distinct: And all his determinations turn upon this simple principle he had in the preceeding chapters fully cleared, “That no injury ought to be done; and injuries that are done ought to be repaired.” He sets out in this chapter, as good order and method require, by inquiring into the nature and origine of dominion and property. And tho’ I think he hath handled this curious question, which hath been so sadly perplexed by many moralists, better than most others, yet something seems to me still wanting to compleat his way of reasoning about it. Our Locke, in his treatise on Government, book 2. c. 4.4 as Mr. Barbeyrac hath observed in his notes on Pufendorff of the law of nature and nations, b. 4. c. 4. hath treated
