Bracton: Thorne Edition: English. Volume 2, Page 44

Harvard Law School Library

Bracton Online -- English

Volume 2, Page 44

Next

Go to Volume: Page:

[001] subject to your dominion become your property. [Soil] which a river adds to your
[002] land by alluvion becomes yours by the jus gentium. Alluvion is an imperceptible
[003] increment which is added so gradually that you cannot perceive [how much]⁸ the
[004] increase is from one moment of time to another. Indeed, though you fix your gaze
[005] on it for a whole day, the feebleness of human sight cannot distinguish such subtle
[006] increases, as may be seen in [the growth of] a gourd and other such things. On the
[007] other hand, if the increment is not imperceptible but apparent it will be otherwise,
[008] as where the violence of a stream has swept away a parcel of your land and attached
[009] it to that of your neighbour; it is clear that it remains yours. If it is attached to
[010] your neighbour's land for a long time and the trees it carried with it strike root
[011] there, from that time they are deemed to be part and parcel of his property. In the
[012] opinion of some, a utilis vindicatio will be given the former owner,⁹ but [in truth]
[013] any recovery of the [tree] itself is at an end since it was made parcel of the other's
[014] land and must be termed a different tree, nourished by another soil. The same
[015] kind of accession takes place when an island rises in a river, for such, if it lies in
[016] the middle of the stream, is the undivided but severally owned property of the
[017] landowners on either bank in proportion to the extent of their riparian interests.
[018] If it lies nearer to one bank than the other, it belongs to the riparian landowners
[019] on that bank only. If an island rises in the sea, which rarely happens, it belongs to
[020] the first occupant. You must not think that a person's land, when reduced to the
[021] shape of an island, becomes an island, as where a river divides into two above his
[022] holding and flows around it, the two streams reuniting below; in such case it will
[023] remain the property of him who first owned it. Care must be taken in measuring
[024] the nearness of islands, for one may easily be deceived in this matter. Let a point
[025] be fixed, therefore, midway between the two lands, and according as the island is
[026] within the point it will be the sole property of the one or the other. If it is within
[027] the point and on the point and beyond the point, then it will be the undivided but
[028] separately owned property of both, so that so much of the island belongs to me as
[029] is contained from the mid-point to my land, and so with respect to my neighbour.
[030] It is evident that the nearness to and the distance from an island must be decided
[031] as of the time it comes into existence. Hence if another island is formed between
[032] an island that is nearer to me and the opposite bank of my neighbour across the
[033] river, the measurement shall be made from my island and not from my land. All
[034] this

Notes

8. ‘quantum,’ as Azo and D. 41.1.7.1

9. The opinion is that of Martinus, as Azo states; D. 6.1.5.3. Cf. Kantorowicz, 92-3