Acquisition of the ownership of fruits

Fruits were classed as either natural or civil (see Hausmaninger, Gamauf, and Sheets, Casebook, 171-5). The ownership of natural fruits could be acquired as a result of separatio, i.e.

7.2.6.1 Severance

All that was required was for the fruits to be severed or separated from the fruit­bearing property. A change of ownership of the fruits resulted as soon as sever­ance occurred, whatever the manner. Thus, if apples fell from a tree, they were considered as severed. It was not necessary for control to be taken of the severed fruits—there was no need for any gathering. The chief cases where ownership of fruits could be acquired through severance were bona fide possession (see 6.5) and emphyteusis (see 6,4.1).

(a) Bona fide possession The entitlement of the bona fide possessor was based on the fact that he usually appeared to the outside world as though he were the owner, and because he would often have produced the fruits through his own labour:

Paul, Plautius, book 7: A purchaser tn good faith undoubtedly acquires ownership for the time being by gathering fruits, even those of someone else's property, not only the fruits which are produced by his care and toil but ail fruits, because, in the matter of fruits, he is virtually in the position of an owner. Indeed, even before he gathers them, the fruits belong to the purchaser in good faith as soon as they are severed from the soil.

It seems that if the bona fide possessor discovered that he was not the owner of the property, he was no longer entitled to the fruits; but this rule could create dif­ficulties in practice, and was not unanimously held by the jurists. Problems could arise from a rule, introduced probably in the late Empire, that the bona fide posses­sor had to account for any unconsumed fruits when the dominus legally recovered the fruit-bearing property. In such a case the ownership of the bona fide possessor was complete only when the fruits no longer existed, i.e. had been consumed—a bizarre rule. It seems that the purpose of the rule was to compensate the dominus as much as possible for the fact that he had been out of possession of his property. But this was potentially rough justice—the bona fide possessor could well have expended much effort in cultivating and gathering fruits, only to lose them if unconsumed.

(b) Emphyteusis Since the tenant held land by way of a long or perpetual lease it is not surprising that he was entitled to the fruits of the land on their severance.

7.2.6.2 Gathering

To acquire ownership of fruits by gathering, the acquirer had to physically collect or gather them—e.g. pick apples from a tree or collect them after they had fallen. It was not necessary for the acquirer to have acted personally: the gathering was effective if done on his behalf, e.g. by his slave. It is not clear what was required by way of gathering when offspring were born to animals. If assistance was given to the animal in labour, such an act could be regarded as gathering; but it seems that, even in the absence of any such act, offspring passed to the acquirer as soon as they were born. The chief cases of acquisition of fruits through gathering were the colonus and the usufructuary:

(a) Colonus He was an agricultural tenant, holding land from the owner under a contract of hire. In such contracts the tenant was often allowed to keep the fruits that he gathered; the gathering passed ownership provided that it occurred while the consent of the owner was operative.

(b) Usufructuary His position as regards fruits has already been considered (see 7.2.6). Unlike the colonus, the usufructuary had a right to fruits that was not dependent on the continued assent of the owner. Why did the usufructuary have to gather fruits to become their owner? Why should severance have not been suf­ficient? The justification for the rule was that the usufructuary (and the colonus) lacked possession of the property that they held. Some act of appropriation of the fruits was thus necessary, whereas this was not the case with the bona fide pos­sessor, e.g., since he had possession. The distinction is hardly convincing: a rule which holds that when apples fall off a tree they become at that moment owned by a bona fide possessor, but not by a usufructuary, is not easy to justify.

7.2.7 Finding treasure

If treasure is found, ownership of it could conceivably be claimed by a number of candidates—the original owner, the finder, the owner of the land in which it was found; possibly even the State. The Romans developed principles in this field which are still applied, in modified form, in some modern systems (see Carey Miller, D. L·., 'Treasure Trove in Scots Law', in Summa Eloquentia, 75-90). For a survey of the most important controversies, see Hausmaninger, Gamauf, and Sheets, Casebook, 163-70.

7.2.7.1 What was treasure?

Paul, Edict, book 31: Treasure is an ancient deposit of money, memory of which no longer survives, so that it is without an owner... (D.41.1.31.1.)

This was one of the less convincing Roman attempts at definition.

7.2.7.2 Who owned treasure?

There is uncertainty about the position in the Republic but it seems that the finder had no rights unless he was the landowner. Treasure belonged to the landowner on the principle of accessio, i.e. things in the land accede to it. It appears to have been irrelevant that the landowner did not know of the existence of the treasure until it was found. In the early Empire, treasure seems to have been regarded for a while as belonging to the imperial treasury rather than to the owner of the land; the finder still had no rights.

The Emperor Hadrian (mid-second century AD) eventually laid down rules which did reward the finder: he was entitled to all of the property if he found the treasure on his own land, or by chance on sacred or religious land. If the treasure was found by chance on another's land, it was shared between the finder and the landowner, even if the latter was the Emperor (Inst.2.1.39.). The finder's share was justified on the analogy of occupatio: the finder was the first ‘occupier’ of property that in reality was hardly distinguishable from res nullius, i.e. ownerless property. If, however, the treasure was found as the result of a deliberate search, the finder took nothing: the treasure belonged to the landowner. Although this rule discouraged trespassing, it could be said to have penalized the use of initiative on the part of the finder—if less treasure was found as a result, who gained from that?

There were further changes in the later Empire, some of them influenced by the conversion to Christianity.

Apart from the original civil law and natural law modes of acquisition of owner­ship described here, various statutory and other modes existed in Roman law. For a survey of these, see Lee, Elements, 122. One of the most important original modes was adiudicatio·

7.2.8 Adiudicatio

In certain proceedings, described as 'partition' or 'divisory' actions, a judge had to make an adiudicatio, whereby he awarded ownership of property to a person who either had not owned the property before, or who had owned the property in common. The object of these actions was to make a division or an adjustment of property:

Julian, Digest, book SI; The actions for dividing common property, for dividing an inheritance, and for regulating boundaries are such that in them the individual participants have the dou­ble legal status of plaintiff and defendant. (D.10.1.10.)

The adiudicatio of the judge constituted a mode of acquiring ownership: it gave the parties rights that they had not had before. For example, the action for dividing common property allowed a co-owner to own part of it separately. Such actions were not uncommon in cases, e.g., of partnership (see 9.3.4.3). The judge was directed to divide as fairly as he could in the circumstances. Thus, he could order payments to be made by the gainers to the losers if his adiudicatio resulted in una­voidable inequality.

The action for dividing an inheritance between joint heirs applied where they failed to agree among themselves as to its distribution. The action dated from at least the Twelve Tables and was available whether the deceased had died testate or intestate. Again, a judge could order equalizing payments to be made if his division was unavoidably unequal in the circumstances.

The action for regulating boundaries often resulted in an adiudicatio that had the effect of altering boundaries between neighbours. The judge could order compensa­tion for the neighbour who lost land as a result, similar to the equalizing payments mentioned above.