Accession
(1) Nature and Scope
Suppose that I buy some bricks to build a house. It turns out that the bricks actuÂally belong to you. As we have seen,[1238] I acquire no ownership of property that I buy from a non-owner.
However, what if I have already built the house before you appear to reclaim the bricks? We are now no longer concerned simply with a question of ownership of the bricks. They are now attached to my land, and cannot readily be separated. Similar issues arise if you build on land that belongs to me. Again, suppose that a jeweller attaches a diamond to a ring. It turns out that the diamond is stolen property. It may be that the diamond cannot readily be separated from the ring.In these situations, the law must take account of the attachment between the two items. This is especially so when the two are attached such that they cannot be readily separated, or cannot be separated without causing damage to one or other item. The doctrine of accession is relevant here. According to this doctrine, when two items of property are joined together such that they cease to have separate identities, and one can be said to be an accessory of the other, the identity of one is subsumed into the other. One of these is known as the principal and the other as the accessory. The accessory is said to ‘accede’ to the principal, and in this process the identity of the accessory is lost within that of the principal. The two become a single item of property. There are two main consequences to this. First, the owner of the accessory loses ownership. The person who owned the principal before the attachment took place acquires ownership of the accessory as well. Second, anyone who enters into a contract to acquire the principal is entitled to get the accessory as well.[1239] As the accessory is considered in law to be part of the principal,[1240] someone who contracts to get the principal contracts to get the accessory as well.[1241]
Accession can operate between land and moveables, between land and land, or between moveables and moveables.
As each raises special issues, they will be considered separately.(2) Moveables to Land
(a) Requirements
It is clear that things constructed on the land acceded to the land and became part of it. The principle was superficies solo cedit (a structure becomes part of the land).[1242] If the structure was made from materials belonging to someone else, the buildÂing nonetheless became the property of the landowner:[1243] the land was always the principal, the structure the accessory. The same was true of plants, such as trees, grass or crops.[1244] This is the case even if the attachment of the structure or plant is carried out in bad faith,[1245] and regardless of the intentions of the parties: accession operated automatically.
Plants acceded when they took root in the land, and so belonged to the owner of the land in which they took root.[1246] For this reason, ownership of a plant on the boundary between two properties was determined by the locaÂtion of the roots.[1247] When it comes to structures, however, the texts have little to say about how much attachment was required. It would be reasonable to think it relevant to consider whether the structure could be removed without too much effort or without damage, but the existence in certain circumstances of a ius tollendi (a right to remove the accessory) suggests that that cannot have been conclusive. Suppose that I was the tenant of your property, and I built on it. It is one thing to say that a permanent structure, such as a house, accedes and becomes yours. After all, it must be anticipated that the house will outlast the lease, and so there is no great injustice in it becoming yours. However, what if I build a temporary wooden shelter, resting on its own weight rather than with proper foundations? Different modern legal systems approach the problem in different ways.[1248] Scots law takes into account, not just the degree of physical attachment, but also the degree of ‘functional subordination' and permanence.[1249] Where the degree of attachment is less than total, an item that is functionally subordinate to the land[1250] and/or which shows a degree of perÂmanence[1251] may nonetheless have acceded.[1252]
As accession occurred automatically, without reference to the parties' intenÂtions, it was not relevant what the parties' state of mind was or whether the owner of either accessory or principal agreed to the attachment.
A person who lost ownership, however, might have a remedy. The precise situation depended on whether the owner of the principal or of the accessory was in possession, and also on whether the possessor was in good faith.(b) Remedies
If a person possessing someone else's land in good faith built on it,[1253] the owner could not recover the land without compensating the possessor.[1254] Any attempt to vindicate[1255] the land could be defeated by the exceptio doli, the defence of deceit.[1256] The same was true also where a possessor had sown crops in good faith on another's land.[1257] This defence barred recovery of the property by the owner until the good faith possessor was compensated for the improvements.[1258] As an alternative, the good faith possessor was given the right to remove any improvements made, as long as the land was not thereby made worse than it would have been if there had been no building in the first place.[1259] Malicious removal was not allowed, such as the removal of plaster from walls or the defacement of pictures. This implied ius tollendi, or right of removal, does not exist in Scots law, on the basis that the accessory is the property of the owner of the principal,[1260] although it does exist in some other systems that have been influenced by Roman law in this area.[1261]
Where the owner of land built on the land in good faith with another's mateÂrials, he or she became owner of the building. Oddly, however, the view was taken that the owner of the materials making up the building continued to own them, even though the owner of the land owned the building as a whole.[1262] [1263] The ownership of the building materials was in a sense, however, in suspense as long as the building remained standing. As long as the building stood, the owner of the materials could not vindicate them, and the actio ad exhibendum7 was not available.[1264] [1265] Instead, the owner of the materials had an action for twice their value, the actio de tigno iniuncto.22 If the building subsequently collapsed or was demolished, and the owner of the materials had not already claimed under the actio de tigno iniuncto, the ownership of the materials revived.[1266] The owner of the materials could recover them at that point.[1267] If a person in bad faith built on someone else's land, he or she was treated as making a gift to the owner of the land, and so could not recover the building materials even if the building collapsed.[1268] If the owner of land knowingly built on it with someone else's materials, he or she would be liable for theft.[1269] In addition, Ulpian implies that the actio ad exhibendum could be brought to compel the wrongfully used building materials to be produced.[1270] (3) Land to Land A form of accession also operated by means of the natural action of rivers. Roman law made a distinction between two processes. The gradual process of a bank being built up by the deposit of material, or diminished by material being washed away, was known as alluvion. The case where material is torn away from one bank by force and deposited elsewhere was known as avulsion. Alluvion affected ownership. The owner of the bank that was built up acquired ownership of the increase. The owner of the bank that was worn away ceased to be owner of what was lost. This was justified on the basis that it was not possible to distinguish what had been gradually added from what was there before.[1271] This approach has been adopted in Scots law. Says Erskine: ‘what is added to a field by an imperceptible accretion cannot be distinguished from the ground itself to which it was joined, in order to its being restored to the former proprietor'.[1272] This gradualness and difficulty of identification may, though, be better seen as a justification for the rule rather than a requirement for its operation: some of the Roman texts appear to allow more rapid change to affect ownership.[1273] Oddly, the rules on alluvion only applied to rivers. They did not apply to other bodies of water, such as lakes.[1274] This was the case even though the shores of lakes are subject to the same physical process.[1275] It does not appear that Scots law makes any such distinction between rivers and other bodies of water.[1276] The same idea applied when a new island appeared in a river. This belonged in common to the owners of either bank if it appeared in the middle of the river; if to one side, it belonged to the owner on that side.[1277] This is to be contrasted with the ‘rare occurrence'[1278] of a new island arising in the sea: this was ownerless and so open to acquisition by the first taker.[1279] By contrast, if through avulsion a part of your land was forcibly detached by a river, and came to rest on a bank belonging to me, I did not immediately acquire ownership. There could be no question of compensation for what was, after all, a natural process. Equally, given that it would not normally be possible to determine whose property the deposited material came from in a case of alluvion, there could be no right of severance. Alluvion or avulsion could, however, result from human acts. (4) Moveables to Moveables (a) Requirements Accession could also happen between two or more moveable things. The texts identify various situations, such as textura (the weaving of thread into a garment), ferruminatio (welding),plumbatura (soldering), scriptura (writing) andpictura (painting). Accession by fruits, such as the young of animals, was a special case. These are all examples, though, of a general concept. Accession was certainly not restricted to these cases. It must be said before continuing, however, that these are default rules, applying where the attachment happens without any agreement between the parties. If the parties agreed to the attachment, the terms of their agreement would govern the outcome. An example might be if I commissioned an artist to decorate an item belonging to me or I engaged a jeweller to attach my diamond to a ring. Clearly, in both cases, the intention would be for me to become owner of the final product, even though the general rules on accession might imply a different result. As with accession between moveables and land, it is unclear what degree of attachment was required. Ulpian makes a distinction between welding and solÂdering based on the degree of attachment, but he appears to be thinking more of the appropriate remedies than he is of the question of whether accession has operated in the first place.[1288] For Scots law, Bell speaks of accession as operatÂing ‘where there can be no separation' between the two things.[1289] This, though, goes well beyond what is required in Roman law. For example, thread can easily enough be picked out from the garment into which it has been sewn, but there is no doubt that the thread acceded to the garment.[1290] It is not clear that Bell is even quite correct for Scots law, for it is almost always possible, even if it may be difÂficult, to separate two things that have been joined together. If Bell's formulation was to be read strictly, it would impose a severe limitation on the applicability of accession between moveable things. Perhaps it is to be taken to mean merely sufficient attachment to indicate permanence. Alternatively, it could mean that accession occurs when the two cannot readily be separated without damage to one or the other. This approach would be consistent with the South African case of J L Cohen Motors SWA (Pty) Ltd v Alberts[1291] in which tyres were held not to accede to the wheels of a truck. (b) Identifying the Principal More attention is given in the texts to the question of determining which of the objects is the principal and which is the accessory. This must be determined, because it was the owner of the principal who acquired ownership of the whole. Matters were most straightforward with accession of fruits. The fruit was always the accessory, and so the offspring of animals belonged to the owner of the mother.[1292] The same was true of other produce of animals, such as honey proÂduced by bees.[1293] One consequence of this was that the fruits of ownerless aniÂmals could not be stolen.[1294] Matters were more difficult in other cases. No single, clear rule was applied. Sometimes it was said that the larger or more valuable item was the principal.[1295] Neither was conclusive, however. For example, even gold thread, far exceeding the garment in value, acceded to the garment.[1296] Another test involved considerÂing which of the two items gave the whole its identity or its overall character.[1297] Thus, for example, where an arm or leg belonging to one person was attached to another person's statue, or a base belonging to one person was attached to another person's bowl, the statue or the bowl was the principal.[1298] We are also told that, in the case of a ship being built, the keel is the principal.[1299] A special rule existed for paintings. While writing acceded to the surface on which it was written,[1300] the outcome was reversed where a picture was made with one person's paint and another's board.[1301] Gaius criticises this rule as being based on reasoning that is ‘hardly satisfactory'.[1302] Ulpian denies that this is the rule at all. He argues that the painting must be the accessory as it cannot exist on its own, separately from the surface it has been painted on.[1303] Justinian, howÂever, settled that the picture itself was the principal, on the basis that ‘it would be ridiculous for a picture by Apelles or Parrhasius to accede to a board of very little value'.[1304] This argument has often been seen as unconvincing. A picture by a lesser painter may well not be more valuable than the surface on which it has been painted. One possible explanation is that one copy of a piece of writing is largely interchangeable with another, in a way that a copy of a painting is not interchangeable with the original. Some manuscripts are themselves works of art, however, and the distinction is difficult to maintain in such cases. The Scots institutional writer Erskine suggests that the distinction ‘appears rather to arise from the change which the board or canvas undergoes by the work and skill of the artist; for it becomes thereby a new species'.[1305] On this approach, the case is rather one of specificatio, considered below.[1306] This suggestion does not sit comÂfortably with the Roman texts, however, which consider the case of the painting alongside other cases that we would certainly classify as cases of accession. An alternative view is that the exception was originally concerned with the more limited category of painted images of deities and ancestors. On this view, the religious significance of these images justified special treatment, but the nature of the exception was forgotten by Gaius' time.[1307] For Scots law, Bell more sensibly takes the approach of ranking the different criteria for identification of the principal.[1308] According to Bell, the matter is deterÂmined by first considering whether one of the items can exist separately: essentially Ulpian's view with regard to the position of paintings. The one that can exist sepaÂrately is the principal, the one that cannot is the accessory. Failing that, the one that ‘is taken to adorn or complete' the other is the accessory. On this basis, an arm or leg added to a statue or a base added to a bowl would be the accessory, and the statue or bowl the principal. A gem would accede to a ring to which it was attached. A similar approach was taken in the South African case of Khan v Minister of Law and Order,[1309] in which a car was constructed using parts taken from different cars. It was held that the engine acceded to the body, most of which came from a stolen car. Accordingly, the owner of the engine lost ownership when it was attached to the car. The proper approach, said the court, was to consider which part ‘gives the ultimate thing its character, form and function'.[1310] This was the body of the car: the engine and other components had been added to it, not the other way around. If neither of these rules answers the question, then in Bell's account of Scots law ‘bulk prevails; next value'. Unfortunately, there is no later authority confirmÂing that Bell's statement of the law here is accurate. It will be noticed that there is no mention of any special rule for paintings. It is not thought that the Roman rule on paintings has been received in Scots law, even though Stair and Erskine both appear receptive to it.[1311] Indeed, they are willing to extend the rule to writings, on the basis that: it were very unreasonable to think, that the evidents and securities of lands, or any manuscript, should be accessory to the paper or parchment whereon they were written, and which were only designed to bear and preserve the writ, and not to be carried therewith.[1312] This view has not, however, prevailed. (c) Remedies As with the accession of moveables to land, remedies varied according to who was in possession and according to whether the attachment was carried out in good faith or bad. If the owner of the principal added an item in good faith that belonged to someone else, the accessory could not be vindicated[1313] as long as the two objects remained stuck together. However, Ulpian tells us that the owner of the accesÂsory could bring the actio ad exhibendum, the action for production,[1314] to compel the owner of the principal to detach and produce the accessory. It would then be possible to vindicate it.[1315] Ulpian goes on to tell us, though, that this does not apply where the accessory had been welded to the principal, as opposed to lesser methods of attachment such as soldering. In the case of welding, the accessory lost its separate identity altogether, and could not be vindicated even if it later broke off. Ulpian does tell us, though, that an actio in factum was available in these circumstances for compensation for the value of the accessory.[1316] Where a possessor of a principal belonging to someone else had in good faith added his own property, he or she of course lost ownership of the accessory. However, the owner could only recover the property on paying the value of the possessor's contribution.[1317] As with the accession of moveables to land, this was a defence only (the exceptio doli). It gave no separate right to claim compensation. Accordingly, if the item ended up back in the owner's possession, the former posÂsessor had no remedy.[1318] Where the union between the items was carried out in bad faith, the party doing so would be liable for theft.[1319] The person who was responsible for taking the accessory would also be liable for theft and in addition under the form of action known as the condictio.[1320] In the case of a painting made with one person's paint on another person's board, it appears that whichever of the two was out of possession could recover the painting from the other on payment of the value of the other's contribution.[1321] (5) Accession in Modern Law We have seen that there has been clear influence from Roman law on the Scots law of accession. This influence has, however, mostly been at the level of the basic principles involved rather than in issues of practical application, the Roman texts giving little attention to the types of issue that tend to arise in practice.[1322] In addition, the rules on compensation in modern law are quite different. Issues of accession have arisen commonly enough in the courts that it is a fairly well- developed area in modern law.[1323] Although, therefore, the modern Scots law is Roman in its ultimate derivation, it is perhaps not an area where there is likely to be major resort to the Roman sources (except, perhaps, with water-related issues, where there is otherwise a shortage of authority).[1324] On the other hand, the comÂmon Roman roots may mean that comparison with the solutions found to novel problems in related legal systems is likely to be fruitful. D.