Bracton: Thorne Edition: English. Volume 2, Page 47

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Volume 2, Page 47

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[001] is true if my tree strike roots essential for its life into my neighbour's soil, it must
[002] then be held in common; but if it may continue to live without such roots it will not be
[003] so held. For the same reason that plants cede to the soil when they strike root,
[004] and that immovable buildings built there do, so wheat that is sown and takes root
[005] on land cedes to it, whether it falls on the ground by accident or not.²⁰

Things are acquired by specification.

[007] ²¹Dominion is acquired by us through specification, as where one makes a new
[008] object out of another's material; he will be the owner of the new object he made.²²

By confusion.

[010] ²³There is another way of acquiring, [that is] by confusion. Liquids are mixed, as
[011] honey and wine; also solids may be, as things different in kind, [for example], gold
[012] and silver, lead and iron, though this can be done only with great difficulty. What
[013] results from the mixture, whether the materials can be separated or not, belongs
[014] in common to those with whose consent the bodies or species are confused. Nor
[015] will a different result be reached if it is by accident that the confusion was made,
[016] if the elements cannot be separated. If they can, each will have as much by weight
[017] and measure as he had of the original materials. If one's wheat is mixed with
[018] another's, the whole will not be owned in common by both, but each will recover
[019] from the heap a portion equivalent to the wheat he had. Nor can there be mixture
[020] of the wheat since the separate grains remain distinct, as [in the case where] cattle
[021] belonging to Titius are mixed with your own, the herd is not taken to be held in
[022] common. And though it may be very difficult and almost impossible to separate
[023] my wheat from yours, nevertheless it may be said that a vindicatio can be given
[024] for the undivided part, as though the heap of wheat was common, that each may
[025] recover so much from the heap as belonged to him. Confusion differs from mixing
[026] together in three respects: different kinds of materials are said to be mixed and
[027] materials of the same kind confused. Different kinds of materials that have been
[028] mixed remain the same in substance and kind; things confused are transformed
[029] into a new object.²⁴

By finding.

[031] ²⁵Dominion is also acquired by finding, as where treasure is found,²⁶ as will be
[032] explained below [among the pleas of the crown.]²⁷

By gift.

[034] By the civil law dominion is acquired in many ways, namely, by the causa of
[035] gift, succession, a testamentary causa, and many others,²⁸

Notes

21. Br. and Azo, 117, 121, 122, 124

21-22. Azo, Summa Inst. 2.1, no. 48

23. Br. and Azo, 117, 123, 126, 128

23-24. Azo, Summa Inst. 2.1, nos. 51-53; Br. has omitted Azo's third distinction: ‘Things confused are made into a thing held in common even though confused without the consent of their owners; those mixed, only when that is done with their consent;’ Kantorowicz, 119-21

25. Br. and Azo, 117, 128

25-26. Azo, Summa Inst. 2.1, no. 54; qualified by king's privilege, supra 42, infra 167

27. Infra 338-9

28. Azo, Summa Inst. 2.1, no. 20: ‘Acquiruntur autem dominia rerum non iure naturali sed gentium vel civili. Civili multis modis ut usucapione ... testamento, successione ...’