Accession

ACCESSION. - Accession can be defined as an original mode of acquiring property through the incorporation or addition to one's own thing of a good that was not part of it and that was not in our ownership. This right is not conferred by nature, but rather sanctioned by positive laws.

The great moralists largely applied to this institution the principles of Roman law, which had become common law and which in this matter had undergone a long and meticulous elaboration. Today it is necessary to apply the civil law of each nation, even when it concerns ecclesiastical goods (cf., by analogy, can. 1526), save for the principles of divine and canon law.

Accession does not raise particular questions of law or morals if the things belong to the same owner, or if different owners arrange the incorporation of the things by mutual agreement: in which case it suffices to abide by the contract. If, on the other hand, there is no agreement among the different owners, recourse must be had to the provisions of civil law, which are substantially founded on the principle of equity and adopt as their criterion the prevalence: accessorium cedit principali.

Principal is called the thing to which the other is subordinate. If of the things one is immovable and the other movable, the latter is accessory, the former principal; if both are movable, the ranking is generally made on the basis of purpose, or, in the absence of other elements, on the basis of the value of the things. But the owner of the principal thing is bound to reimburse the other to the extent of the enrichment; indeed, if he has procured the accession in bad faith, he is also bound to compensate for the damage.

Accession by fructification, of which almost all moralists speak, has no place in Italian law which, returning to the concept of Roman law, speaks of this intrinsic expansion or evolution of property where it deals with fruits (Cod. Civ. It., arts. 820-21), not listing it among the modes of acquiring property (I. III tit. II, cap. 111). In accession, as it now stands in Italian law, the extension of property does not unfold through intrinsic expansion of the thing, but rather widens by virtue of a new title, brought into being by the occurrence of a new juridical fact.

Various are the ways in which accession thus conceived can occur. Wishing to reduce the various cases to a certain unity, one can speak of two classes of accession according as it concerns immovable things among themselves and with movable things, or movable things among themselves, or according as the fact of the union is predominantly the work of nature or the principal coefficient is human industry. Adhering to the first scheme of classification, to the first category of accession (between immovable things or between movable things with immovables) belong the following figures: alluvion, avulsion, new island, abandoned riverbed, in which the work of nature prevails, and building, planting, in which human labor prevails over the work of nature; to the second category (accession between movable things) belong union, commixture, specification, etc., in which human industry is still prevalent.

1. - Under the name of alluvion go the unions of land and the increments that are formed successively and imperceptibly (incrementum latens) in estates situated along the banks of rivers or torrents (Cod. Civ. It., art. 941). Avulsion occurs if a river or torrent detaches by instantaneous force a considerable and recognizable part (incrementum patens) of an estate contiguous to its course and carries it toward a lower estate or toward the opposite bank. In the one and the other case the owner of the estate also becomes owner of the land added to the estate, except in the case in which the alluvion derives from regulation of the river's course, from land reclamation and from other similar causes (arts. 941, 947), and save, in the case of avulsion, the indemnity to be paid to the other owner within the limits of the greater value brought to the enlarged estate by the avulsion (art. 944).

A different rule applies when the avulsion gives rise to a new island in the bed of the river: the owner of the estate from which the detachment occurred retains ownership of it; and the same rule is observed when the island is formed not by an avulsion properly so called, but by the new course of a river or torrent, which crosses and surrounds the estate or part of the estate of a neighboring owner (art. 945). Apart from these two cases, in all others, the islands and unions of land that are formed in the bed of rivers or torrents belong to the public domain (art. 945). However, the rules concerning islands and unions of land do not apply in the case in which the change in the river's bed derives from regulation of its course, from land reclamation or other similar causes (art. 947).

If a river or torrent forms a new bed, abandoning the old one, the abandoned riverbed belongs to the owners bordering on the two banks. They divide it up to the middle of the bed itself, according to the extent of the frontage of each one's estate (art. 946). If, rather than changing bed, the river or torrent moves imperceptibly away from one of the banks, shifting to the other, the land abandoned by the water belongs to the owner of the uncovered bank, without the neighbor of the opposite bank being able to reclaim the lost land, natura enim contingit (art. 942). If, on the other hand, there is the hand of man with regulations of the course of rivers, land reclamation, etc., the aforesaid rules do not apply (art. 947).

Building - Planting - New works. - In general, any planting, construction or any work done above or below the soil belongs to the owner of the soil (art. 934) according to the classic principle: Quidquid plantatur, seritur vel inaedificatur, totum solo cedit, radices si tamen egit. However, one must bear in mind the particular norms that the civil law formulates for the various possible hypotheses, in relation to the ownership of the material employed in the construction and the like, and to the right and duty of indemnity (arts. 934-38).

2. - Among movable things, accession can occur in an indefinite series of cases, which cannot all and singly be contemplated by the legislator. The Italian legislator deals with three principal cases: union, commixture (or mingling), and specification.

In union and in commixture the different things, while forming a single body, remain substantially distinct, as in writing, painting, weaving, in alloys of metals, etc. Each retaining ownership of his own thing, he has the right to obtain its separation, if possible: otherwise there is a common ownership in proportion to the value of the things belonging to each; but if one of the things has a much higher value, or can be regarded as principal, its owner acquires ownership of the whole, remaining however bound to pay the other or the others the value of their thing, or, if the union occurred without his consent, the lesser sum between the increase in value brought to the principal thing and the value of the accessory thing, save the right to compensation for damages, in case of grave fault (art. 939).

Specification is the accession of a new form to a pre-existing material, such as to give body to a new thing, to a new species. If someone has used a material that did not belong to him to form a new thing, whether or not the material can resume its original form, he acquires ownership of it, paying the owner the price of the material, unless the value of the material considerably surpasses that of the labor: in which case the roles are reversed (art. 940).

Pietro Palazzini