property, L. 28. tit. 8 P. 5. [L. 28. tit. 8. P. 5.] 5th, That if the direct or inmediate lord be an ecclesiastic, an omission to pay the rent for two years is sufficient to work the forfeiture of the property, L. 28. tit. 8. P. 5. [L 28. tit. 8. P. 5.] 6th, That the tenant may aliene the land, acquainting the lord who has the right of pre-emption (tanteo), with the price that another has offered; and he not giving that price, or being silent with respect thereto, for two months, the tenant may sell, but to a person from whom the lord may recover the rent, in order that he shall execute a new deed of lease, and for which he is entitled to a relief (laudemio), which is the fiftieth part of the price or value, L. 29. tit. 8. P. 5. [L. 29. tit. 8. P. 5] 7th, That by alienating is understood selling, exchanging, pledging, or mortgaging, imposing services, or assigning to one, without such power of alienation, L. 10. tit. 23. P. 7 [L. 10. tit. 23. P. 71

thus the tenant (el enfiteuta) shall be able to rent the land or thing, notwithstanding Lopez, á L. 29. tit. 23. P. 7. Gl 3. says the contrary. 8th, That if a sale thereof was made without the permission of the lord, and he knew and consented to it, no forfeiture is incurred, Lopez, á L. 29. tit. 8. P. 5. Gl. 6. Quæst. 4.

Cap. 4. The modes of acquiring full or absolute dominion are either by the laws of nations, or by the civil or municipal law. The natural modes are original or derivative. The first are so called, because by them that thing which was not in the power or possession of another, commences to be under the dominion of some one, and derivative modes are so called, because by them the dominion is transferred from one to another. Of the original some put us in possession of (entregan) the body or substance of the thing, as occupancy or invention; others produce a certain augmentation to the thing already ours, such does accession. Tradition or delivery (entrega) is the derivative mode.

Cap. 5. Occupancy is the taking coporeal things which do not belong to another, with the intention of retaining them for one's self. Things are said to be no one's property, which, by their nature, are not under the dominion of any one, or were thrown away by the owner, with the intention of parting with them in future, Ll. 49. and 50. tit. 28. P. 3. [Ll. 49. and 50. tit. 28. P. 3.]

Hence it arises, 1st, That wild beasts, birds, and fishes, [92] immediately upon being taken, are the property of him who takes them, [L. 17. tit. 28. P. 3.; [L. 17. tit. 28. P. 3.;] and they can be taken not only on one's own property, but on that of another person, unless the owner forbid, or do not permit the entry thereon, Ll. 17. and 22. tit. 28. P. 3. [LI. 17. and 22. tit. 28. P. 3.] 2d, That bees gathered in hives cannot be taken; because he who has them in hives, has already made them his own, L. 22. tit. 28. P. 3., [L. 22. tit. 28. P. 3.,] unless they have flown from the hive, so that the

owner is unable to see or to take them, L. 22. tit. 28. P. 3. [L. 22. tit. 28. P. 3.] 3d, For the same reason, no one can take domestic animals, such as heus, capons, &c., L. 24. tit. 28. P. 3. [L. 24. tit. 28. P. 3.] 4th, That if beasts wild by nature, although domesticated, fly away, and lose the habit or animum of returning, they shall belong to the first taker, L. 23. tit. 28. P. 3. [L. 23. tit. 28. P. 3.] 5th, That it is not sufficient to wound the game, but it is necessary to seize or lay hold of it, in order to acquire the dominion, L. 21. tit. 28. P. 3. [L. 21. tit. 28. P. 3.]

The liberty of fishing and hunting is limited or restrained by the laws of the kingdom for the public benefit. The latest ordinance (pragmatica) of 3d March, 1769,9 subsequent to that of tit. 8. lib. 7. Rec., and other cedulas or orders issued upon the same point, contains and explains fully every thing connected with this subject, and, therefore, in the desire to conform to it as a suppletory law, and to confine ourselves within the limit of our institute, we have to observe, 1st, That it prohibits fishing and hunting from the beginning of March to the end of July, and in the remaining months, on snowy or tempestuous days, (dias de nieve ó de fortuna). 2d, That during the period forbidden, fowling is also prohibited except for the purpose of killing sparrows; and the use of instruments of fishing, except the hook and nets with meshes. 3d, That it is not allowed to use quick lime for fishing, nor poison, nor other prejudicial things. 4th, That it declares, that no hunters by profession shall be permitted, as being an idle set of persons. 5th, That wild bulls, (urones,) decoy birds, snares, traps, and other unlawful instruments are for ever prohibited. 6th, That only nobles, and persons of property and of distinction, may employ greyhounds, with permission of the council, which is restricted to the time the vintage is finished, until the month of March. 7th, That the owners or renters of thickets (sotos) and [93] pasture-grounds (cotos) may begin their hunting from St. John the Baptist's day. 8th, That the penalty for transgressors, if nobles, is the loss of the instruments, twenty thousand maravedis fine, and two years' military service for the first offence; for the second, double the fine; and for the third, triple. If plebeians, they are condemned to the loss of the instruments, ten thousand maravedis fine, and two years' banishment for the first offence; for the second, the fine is doubled; and for the third, they shall pay twenty thousand maravedis, and suffer four years' imprisonment, (de presidio). 9th, That the intendants, corregidors, and justices shall take cognisance of these causes in the first instance, no person of whatever class being

And this effectually; for it appears by the law referred to in the text, that if game be caught in snares set by one, yet it shall be the first taker's, notwithstanding he be not the setter or owner of the snares or traps; unless a custom to the contrary should be in force. Query, if the land on which the snare was set belonged also to the owner of the snare.

9 See Nota 5. tit. 30. lib. 7. Nov. Rec.: the last regulations on this subject, it is believed, are contained in L. 11. tit. 30. Lib. 7. Nov. Rec., which see.

excepted from their jurisdiction, with respect to matters relating to fishing and hunting.

Cap. 6. Invention or finding, is the mode by which we acquire the dominion of things which have no owner by their nature, or which have been relinquished by them, with the intention or cum animo of not returning to take them, such as gold, pearls, and precious stones, which are met with on the sea-shore, which, by the law of nature, belong to the first occupant, L. 5. tit. 28. P. 3., [L. 5. tit. 28. P. 3.,] as also money thrown to the people on days of public rejoicing, and other holidays, L. 48. tit. 28. P. 3. [L. 48. tit. 28. P. 3.]

With this class should be joined strayed goods, (mostrencos); that is, which have lost the owner; but in Spain they are not considered as such, because they belong to the crown, (real camara,) and the cognisance of them appertains to the ordinary justices, and not, as was formerly the case, to the sub-delegates of the cruzade, according to the last provision of 9th October, 1766,10 which, without doubt, annuls the former laws which treated of mostrencos, and particularly aut. un. tit. 9. lib. 1. Rec.11

Mines of gold, silver, quicksilver, &c., ponds of salt, and other salt pits belong also to the royal patrimony, Ll. 2. and 4. tit. 13. lib. 6. Rec., and L. 19. tit. 8. lib. 9. Rec. [Ll. 1. and 3. tit. 18. lib. 9., L. 1. tit. 19. lib. 9. Nov. Rec.] Wherefore Philip II., by an ordinance of 1584, which is L. 9. tit. 13. lib. 6. Rec., [L. 4. tit. 18. lib. 9. Nov. Rec,] grants permission to his native subjects, and to foreigners, to work and improve mines, and concedes various rewards (mercedes) and privileges to the discoverers of them, ordering that care should be taken not to do any injury to the estates of individuals; and that there be paid to the king the fifth of the product and other [94] duties therein expressed: and he renews L. 4. tit. 13. lib. 6. Rec., and L. 5. tit. 13. lib. 6. Rec.,13 [L. 3. tit. 18. and Nota 1. tit. 20. lib. 9. Nov. Rec.,] in as far as they are not contrary thereto. This law hath been limited in some things by L. 10. tit. 13. lib. 6. Rec. [Nota 1. and 2. tit. 18. lib. 9. Nov. Rec.]

The treasure which is found upon the earth or concealed in it by any one, is applied to the benefit of the Exchequer, (al fisco,) with a reservation of the fourth part for the finder, who ought to communicate the discovery to the justice, L. 1. tit. 13. lib. 6. Rec., [L. 3.

10 N. 1. tit. 22. lib. 10. Nov. Rec.

11 Nota 2. tit. 3. lib. 10. Nov. Rec.: but a year and two months were allowed for the owner to reclaim his goods after their delivery to the justice or alcalde, as directed by Ll. 1, 2, and 4. tit. 22. lib. 10. Nov. Rec.: during which time, the finder or person asserting his privilege to the bienes mostrencos, was to cause them to be publicly proclaimed once a month, on a market day, in order to afford the owner the opportunity to claim restitution of his property.

12 See the Law 4. tit. 18. lib. 9. Nov. Rec., referred to in the text: and notas 1. and 2. ibid.

13 See Nota a. L. 3. tit. 18. lib. 9. Nov. Rec.

VOL. I.-14

tit. 22. lib. 10. Nov. Rec.,] which alters L. 45. tit. 28. P. 3. [L. 45. tit. 28. P. 3.] See Lagunez de fruct. part. 1. cap. 11.

Cap. 7. The other natural original mode is accession, or the right of acquiring the augmentation or improvement which any thing belonging to us receives. It is divided into that caused by nature, and that produced by industry. The natural kinds of accession are, 1st, The young of animals which belong to those whose property the females are, L. 25. tit. 28. P. 3.14 [L. 25. tit. 28. P. 3.] 2d, The island that rises in a river which belongs proportionally to the estates which border on the bank to which it is nearest or most immediate, Ll. 27, 28, and 29. tit. 28. P. 3. [Ll. 27, 28, and 29. tit. 28. P. 3.] 3d, The increase which rivers cause by degrees to an estate, will belong to the proprietor of it; but not that caused by a sudden overflow, L. 26. tit. 28. P. 3. [L. 26. tit. 28. P. 3.] 4th, The land which is left dry by the change of the current of a river, is divided between the owners of the estates on that bank; and the proprietors on the bank where it takes its new course, lose the dominion of the land so engrossed, and the new course assumes the nature of the first or orignal channel, L. 31. tit. 28. P. 3. [L. 31. tit. 28. P. 3.] But if lands should remain covered by an inundation, the proprietors shall not lose the dominion, L. 32. tit. 28. P. 3. [L. 32. tit. 28. P. 3.] 5th, If a tree planted on one estate should extend its principal roots15 to the land of another, the owner of the latter shall also be the owner of its fruit; and if it throws out principal roots in both, the proprietors of both the estates shall equally divide its fruit, L. 43. tit. 28. P. 3. [L. 43. tit. 28. P. 3.]

Cap. 8. To industrial accession belongs the union or addition of another person's property to one's own, ex. gr. a foot to a statue of the same metal; the writing to the paper; a tablet to the painting; and a house to the soil. In these cases, the accessory or addition belongs to the owner of the principal; the foot, in respect of the [95] statue, the writing in respect of the paper, the tablet in respect of the painting, the buildings and fruits in respect of the land on which they were planted or sown, and the materials in respect of the building, being considered as accessories; but he who united or added another's property with or to his own, or worked on it with good faith,16 (con buena fe,) shall be entitled to remuneration for the expenses and improvements from him who acquires them by reason of the accession; and if he proceeded with bad faith, (mala fe,) he loses the whole, as explained with a variety of examples" by Ll. 35, 36, 37, 38, 42, and 43. tit. 28. P. 3., [Ll. 35, 36, 37, 38. 42, and

14 Except, says the law quoted in conclusion, there should exist a custom in the particular place, or an agreement between the proprietors of the male and female to the contrary.

15 The law quoted in the text, L. 43. tit. 28. P. 3., says, those from which it derives nourishment. There would, perhaps, be some difficulty in ascertaining this fuct. 16 i. e. supposing it to be his own.

17 And some qualifications.

43. tit. 28. P. 3.,] which have copied all that the Roman laws say upon the subject.

A species of industrial accession is the specification or formation of a new kind of thing, with the material of another, as if from grapes wine be made, a vase from silver, &c. If the materials of which the thing is constructed cannot be reduced to their original state, they shall belong to him who made it in good faith, on paying the value of the materials to the owner. And if it be possible to reduce them to their original state, the thing shall be given to the original owner of the materials, who shall satisfy the party for the expense occasioned in forming the new thing; but in case of acting in bad faith, the workman shall lose his labor and expenses, L. 33. tit. 28. P. 3. [L. 33. tit. 28. P. 3.]

Mixtion (mixtion) results from the mixture of materials of one kind with those of another, and therefore he who mixes his own gold with that of another, never makes it his, although he may have done it with good faith, L. 34. tit. 28. P. 3. [L. 33. tit. 28. P. 3.] and if they should be mixed by chance or by the will of the owners, they shall be common, they being such as can be separated; and if this be not possible, each shall preserve his property in his share, L. 34. tit. 28. P. 3. [L. 34. tit. 28. P. 3.]

Cap. 9. Tradition or delivery (tradicion), which is the derivative mode of acquiring dominion, is made when men give possession of their property to others for some lawful reason, L. 46. tit. 28. P. 3. [L. 46. tit. 28. P. 3.] It is corporeal, as if delivery be made of the thing into the hands of him who purchases it, &c., L. 46. tit. 28. P. 3. [L. 46. tit. 28. P. 3.] and also fictitious or feigned, as in the case where one should transfer or aliene a thing which he hath lent to another, L. 47. tit. 28. P. 3. [L. 47. tit. 2s. P. 3.] This takes place in respect to things corporeal as well as incorporeal; and as demonstrated by the examples referred to in Ll. 46. and 47. tit. 28. P. 3. [Ll. 46 and 47. tit. 2S. P. 3.]

Symbolical tradition or delivery is when one thing is de- [96] livered in token or earnest (señal) of another, the dominion of which it is desired to transfer; ex. gr. if the keys of the granary be delivered, which contains the corn which is sold, see Ll. 6. 7. and 8. tit. 30. P. 3. [Ll. 6. 7. and 8. tit. 30. P. 3.]

Cap. 10. The modes of acquiring full dominion, according to the civil or municipal law, are prescription, donation, and other contracts of which we shall speak hereafter: we are now treating of prescription as having a very natural connection or affinity with possession, which we are to consider as accessary to dominion, although it may happen that it is sometimes found separate.

Cap 11. Prescription is to hold the property or thing of another for a certain time, and to make it thereby one's own, so that the right owner cannot afterwards deprive you of it. To constitute prescription, good faith (buena fe), just title, and capacity of the thing for the purpose, and of the person who prescribes, are necessary; as also