[ULPIANUS libro sexto decimo ad edictum. ] §6.1.5.prIdem Pomponius scribit: si frumentum duorum non uoluntate eorum confusum sit, competit singulis in rem actio in id, in quantum paret in illo aceruo suum cuiusque esse: quod si uoluntate eorum commixta sunt, tunc communicata uidebuntur et erit communi diuidundo actio.
[ULPIANUS, in the sixteenth book on the Edict.] The same Pomponius writes: if the grain of two persons is mixed together without their consent, each has an action in rem for that portion, to the extent that it appears each one's own is in that heap; but if they were mixed by their consent, then they shall be deemed common property, and there will be an action for the division of common property.
§6.1.5.1Idem scribit, si ex melle meo, uino tuo factum sit mulsum, quosdam existimasse id quoque communicari: sed puto uerius, ut et ipse significat, eius potius esse qui fecit, quoniam suam speciem pristinam non continet.
The same author writes that if mead is made from my honey and your wine, some have thought that this also becomes common property; but I think it is more correct, as he himself also indicates, that it belongs rather to him who made it, since it does not retain its original identity.
sed si plumbum cum argento mixtum sit, quia deduci possit, nec communicabitur nec communi diuidundo agetur, quia separari potest: agetur autem in rem actio.
But if lead is mixed with silver, since it can be extracted, it will neither become common property nor will an action for the division of common property be brought, because it can be separated; instead, an action in rem will be brought.
sed si deduci, inquit, non possit, ut puta si aes et aurum mixtum fuerit, pro parte esse uindicandum: nec quaquam erit dicendum, quod in mulso dictum est, quia utraque materia etsi confusa manet tamen.
But if it cannot be extracted, he says, as for instance if bronze and gold have been mixed together, a claim must be made in proportion to one's share; and what was said in the case of mead is by no means to be said here, because both materials, even though mixed, nevertheless remain.
§6.1.5.2Idem scribit, si equam meam equus tuus praegnatern fecerit, non esse tuum, sed meum, quod natum est.
The same author writes that if your horse makes my mare pregnant, what is born is not yours, but mine.
§6.1.5.3De arbore, quae in alienum agrum translata coaluit et radices immisit, Uarus et Nerua utilem in rem actionem dabant: nam si nondum coaluit, mea esse non desinet.
Concerning a tree which, having been transplanted into another's land, took root and sent out roots, Varus and Nerva granted a beneficial action in rem; for if it has not yet taken root, it does not cease to be mine.
§6.1.5.4Cum in rem agatur, si de corpore conueniat, error autem sit in uocabulo, recte actum esse uidetur.
When an action in rem is brought, if there is agreement as to the physical object, but there is an error in the name, the action is deemed to have been properly brought.
§6.1.5.5Si plures sint eiusdem nominis serui, puta plures Erotes, nec appareat de quo actum sit, Pomponius dicit nullam fieri condemnationem.
If there are several slaves of the same name, for example, several named Eros, and it is not clear which one was sued, Pomponius says that no condemnation can be made.