[ULPIANUS libro nono decimo ad edictum. ] §41.1.44.prPomponius tractat: cum pastori meo lupi porcos eriperent, hos uicinae uillae colonus cum robustis canibus et fortibus, quos pecoris sui gratia pascebat, consecutus lupis eripuit aut canes extorserunt: et cum pastor meus peteret porcos, quaerebatur, utrum eius facti sint porci, qui eripuit, an nostri maneant: nam genere quodam uenandi id erant nancti.
[ULPIAN, from the Commentary on the Edict, book 19] Pomponius discusses this case: when wolves snatched pigs from my shepherd, a tenant of a neighboring villa, having pursued them with strong and powerful dogs which he kept for the sake of his own flock, rescued them from the wolves, or his dogs forced them away. When my shepherd demanded the pigs, the question arose whether the pigs had become the property of him who rescued them, or remained ours; for they had acquired them by a certain kind of hunting.
cogitabat tamen, quemadmodum terra marique capta, cum in suam naturalem laxitatem peruenerint, desinerent eorum esse qui ceperunt, ita ex bonis quoque nostris capta a bestiis marinis et terrestribus desinant nostra esse, cum effugerunt bestiae nostram persecutionem.
He considered, however, that just as things captured on land or sea, when they have returned to their natural state of freedom, cease to belong to those who captured them, so also things snatched from our property by beasts of the sea or land cease to be ours when the beasts have escaped our pursuit.
quis denique manere nostrum dicit, quod auis transuolans ex area aut ex agro nostro transtulit aut quod nobis eripuit? si igitur desinit, si fuerit ore bestiae liberatum, occupantis erit, quemadmodum piscis uel aper uel auis, qui potestatem nostram euasit, si ab alio capiatur, ipsius fit.
Who, indeed, would say that what a bird flying over carries away from our threshing-floor or field, or what it snatches from us, remains ours? If, therefore, it ceases to be ours, then, if it is freed from the beast's mouth, it will belong to the first taker, just as a fish, a wild boar, or a bird that has escaped our control becomes the property of another if captured by him.
sed putat potius nostrum manere tamdiu, quamdiu recuperari possit: licet in auibus et piscibus et feris uerum sit quod scribit.
But he thinks rather that it remains ours so long as it can be recovered; although what he writes is true in the case of birds, fish, and wild beasts.
idem ait, etsi naufragio quid amissum sit, non statim nostrum esse desinere: denique quadruplo teneri eum qui rapuit.
He also says that even if something is lost in a shipwreck, it does not immediately cease to be ours; and indeed, he who plunders it is liable for fourfold.
et sane melius est dicere et quod a lupo eripitur, nostrum manere, quamdiu recipi possit id quod ereptum est.
And it is certainly better to say that even what is snatched from a wolf remains ours so long as that which was snatched can be recovered.
si igitur manet, ego arbitror etiam furti competere actionem: licet enim non animo furandi fuerit colonus persecutus, quamuis et hoc animo potuerit esse, sed et si non hoc animo persecutus sit, tamen cum reposcenti non reddit, supprimere et intercipere uidetur.
If, therefore, it remains ours, I think that an action for theft also lies; for although the tenant may not have pursued them with the intent to steal—though he could have had this intent as well—yet, even if he did not pursue them with this intent, still, when he does not return them to the claimant, he is seen to suppress and embezzle them.
quare et furti et ad exhibendum teneri eum arbitror et uindicari exhibitos ab eo porcos posse.
Therefore, I judge that he is liable both for theft and for production, and that the pigs, once produced, can be recovered from him by vindication.