[GAIUS libro secundo rerum cottidianarum siue aureorum. ] §41.1.7.8Uoluntas duorum dominorum miscentium materias commune totum corpus efficit, siue eiusdem generis sint materiae, ueluti uina miscuerunt uel argentum conflauerunt, siue diuersae, ueluti si alius uinum contulerit alius mel, uel alius aurum alius argentum: quamuis et mulsi et electri noui corporis sit species.
The will of two owners mixing their materials makes the whole body common, whether the materials are of the same kind, as if they mixed wines or melted silver together, or of different kinds, as if one contributed wine and another honey, or one gold and another silver: although in the case of both mead and electrum, the form is that of a new body.
§41.1.7.9Sed et si sine uoluntate dominorum casu confusae sint duorum materiae uel eiusdem generis uel diuersae, idem iuris est.
But even if the materials of two persons, whether of the same or of a different kind, have been mixed by chance without the will of the owners, the same rule of law applies.
§41.1.7.10Cum in suo loco aliquis aliena materia aedificauerit, ipse dominus intellegitur aedificii, quia omne quod inaedificatur solo cedit.
When someone has built on his own land with another's material, he himself is understood to be the owner of the building, because everything which is built upon the land goes with the soil.
nec tamen ideo is qui materiae dominus fuit desiit eius dominus esse: sed tantisper neque uindicare eam potest neque ad exhibendum de ea agere propter legem duodecim tabularum, qua cauetur, ne quis tignum alienum aedibus suis iunctum eximere cogatur, sed duplum pro eo praestet.
Nor, however, does he who was the owner of the material thereby cease to be its owner: but for the time being he can neither claim it nor bring an action for its production, because of the Law of the Twelve Tables, by which it is provided that no one shall be compelled to remove another's beam joined to his own house, but shall pay double its value.
appellatione autem tigni omnes materiae significantur, ex quibus aedificia fiunt.
Moreover, by the term 'beam' (tignum) all materials are signified out of which buildings are made.
ergo si aliqua ex causa dirutum sit aedificium, poterit materiae dominus nunc eam uindicare et ad exhibendum agere.
Therefore, if for any reason the building has been demolished, the owner of the material will now be able to claim it and to bring an action for its production.
§41.1.7.11Illud recte quaeritur, an, si id aedificium uendiderit is qui aedificauerit et ab emptore longo tempore captum postea dirutum sit, adhuc dominus materiae uindicationem eius habeat.
It is rightly asked whether, if he who built the house has sold it, and it has been acquired by the buyer through long possession and afterwards demolished, the owner of the material still has a claim for it.
causa dubitationis est, an eo ipso, quo uniuersitas aedificii longo tempore capta est, singulae quoque res, ex quibus constabat, captae essent: quod non placuit.
The cause of doubt is whether, by the very fact that the collective whole of the building was acquired by long possession, the individual things also of which it consisted were acquired; which view was not accepted.
§41.1.7.12Ex diuerso si quis in alieno solo sua materia aedificauerit, illius fit aedificium, cuius et solum est et, si scit alienum solum esse, sua uoluntate amisisse proprietatem materiae intellegitur: itaque neque diruto quidem aedificio uindicatio eius materiae competit.
On the other hand, if someone has built on another's land with his own material, the building becomes the property of him to whom the land also belongs; and, if he knows that the land belongs to another, he is understood to have lost the ownership of his material by his own will; and therefore, even if the building is demolished, a claim for that material is not available.
certe si dominus soli petat aedificium nec soluat pretium materiae et mercedes fabrorum, poterit per exceptionem doli mali repelli, utique si nescit qui aedificauit alienum esse solum et tamquam in suo bona fide aedificauit: nam si scit, culpa ei obici potest, quod temere aedificauit in eo solo, quod intellegeret alienum.
Assuredly, if the owner of the land should claim the building and does not pay the price of the material and the wages of the workmen, he can be repelled by the plea of fraud (exceptio doli mali), at any rate if he who built did not know that the land belonged to another and built in good faith as if on his own; for if he knew, fault can be imputed to him because he rashly built on that land which he understood to belong to another.
§41.1.7.13Si alienam plantam in meo solo posuero, mea erit: ex diuerso si meam plantam in alieno solo posuero, illius erit: si modo utroque casu radices egerit: antequam enim radices ageret, illius permanet, cuius et fuit.
If I plant another's sapling in my land, it will be mine; on the other hand, if I plant my sapling in another's land, it will be his; provided that in both cases it has struck roots; for before it strikes roots, it remains his whose it was.
his conueniens est, quod, si uicini arborem ita terra presserim, ut in meum fundum radices egerit, meam effici arborem: rationem enim non permittere, ut alterius arbor intellegatur, quam cuius fundo radices egisset.
Consistent with this is the rule that, if I have so pressed down a neighbor's tree with earth that it has struck roots into my land, the tree becomes mine; for reason does not permit that a tree be understood to belong to anyone other than him into whose land it has struck roots.
et ideo prope confinium arbor posita, si etiam in uicinum fundum radices egerit, communis est
And for this reason, a tree placed near the boundary, if it has also struck roots into the neighboring land, is common.