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G. Accession, Blending and Mixing: Cases 105–119

Chapter 3: Acquiring Ownership and Losing Ownership

a. Accession of Movables to Land
Cases 105–109

b. Accession of Movables to Movables
Case 110–114

c. Blending (confusio) and Mixing
Case 115
Cases 116–118

d. The Special Case of Money
Case 119

Cases 105–109. The good faith of an “innocent improver” is also a factor in cases such as these: see Case 129. Compare the broadly equitable reasoning of Cases 105–109 with “Compensation for improvements made or placed on premises of another by mistake,” 57 A.L.R.2d 263 (1958):

The theories and basic principles of the common law and of equity jurisprudence are sharply contrasted in [cases of mistaken improver]. At common law, emphasis is placed upon the right of the owner of land to control and use it as he sees fit, and it is considered that he is under no obligation, either legal or moral, to pay for improvements made or placed thereon without his knowledge or consent, even though he may derive benefit therefrom. The improver acts at his peril, and has no right to recover compensation, except where the owner seeks to recover against him for rents or profits during his occupancy, or damages for detention, in which case he is permitted to set off the value of the improvements against the amount recoverable by the owner.

“In equity, the mistaken improver may be entitled to relief by way of compensation under the rule or maxim that he who seeks equity must do equity, or under the doctrines of unjust enrichment or estoppel. Where the owner seeks the aid of the court in the establishment of his title or the recovery of possession of the premises, he may be required to make compensation for the improvements as a condition of obtaining such relief. According to some authorities, the right of recovery in equity is limited to such cases. According to other authorities, compensation may be recovered, as incidental or alternative relief, in an action instituted by the improver for other relief; and in several cases the court has gone to the full extent of holding that the improver, upon eviction, may obtain relief by an independent action for such purpose in any case in which it would be unjust or inequitable for the owner to take advantage of the mistake. But an innocent owner will not be required to pay for improvements where to do so would impose a hardship upon him. Such a case falls within the principle that where one of two innocent persons must suffer, the one whose act or conduct was responsible for the situation must bear the loss. In some instances, the owner has been given the option of paying for the improvements or accepting the value of the land without the improvements and relinquishing his title to the improving occupant.  

“In some cases, but not in others, the right to relief has been made to depend upon the owner's knowledge of or acquiescence in the making or construction of the improvement, or the existence of some element of fault or culpability on his part.”

Discussion Question:

  1. How does this summary of doctrine and practice compare in practical effect with the Roman rules emerging from Cases 105–109? 

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Cases 110–114. Because Roman law did not recognize the concept of intellectual property, these cases do not address what would doubtless be a major issue in modern litigation under similar facts: the common law and statutory copyright that would attach to the altered work as a separate property interest belonging to the creator.  See

17 U.S.C.A. § 102 Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

For the common law rule of accession pertaining only to the corporeal element of the object, see:

1 Am. Jur. 2d Accession and Confusion § 4

“The ordinary repairs upon a chattel by the addition of materials furnished by the person making the repairs or owned by a third person become accessions to and merge in the article repaired, which, provided it remains substantially the same thing, belongs, together with the additional materials, to the owner of the original article. This rule has been applied even though the materials added in making repairs are of greater value than the original article in its defective condition.  There is, however, authority to the contrary.” (footnotes omitted)

Note, however, that this rule is mitigated by the concurrent attachment of common law and statutory artisan's and mechanic's liens.

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Case 115. Compare with this case Stone v. Quaale 36 Minn. 46, 29 N.W. 326 Minn. (1886): “Where goods of the same nature and value, belonging to different owners, are mixed, without fraudulent intent, if a division can be made of equal value, as in case of a mixture of grains of the same kind, quality, and value, then each owner may claim his aliquot part of the whole mass.”

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Cases 116–118. Compare the rules in these cases with the following statements of common law doctrine:

39 A.L.R. 2d 555 (1955) Confusion of goods by accident, mistake, or act of a third person
. . .

§ 1[b] Introduction—Summary

“Where goods are innocently confused as the result of accident, mistake, or the act of a third party, it appears to be well settled that, in so far as the proportionate contributions of the parties can be determined, no forfeiture will result, but the parties will be regarded as co-owners in the whole, entitled to share in the goods or their proceeds, and charged with resulting losses, in proportion to their contributions.

The burden of demonstrating the proportionate contributions may be placed upon the owner who intentionally, although innocently, causes the confusion, or, if none of the owners is in any way chargeable with the consequences, and the proportionate contributions cannot be shown, the parties may share equally.” (footnotes omitted)

Cf. 1 Am. Jur. 2d Accession and Confusion § 2 (2010):
. . .

The doctrine of confusion of goods only applies where the quantity and value of the property of each owner cannot be determined. If the goods of several persons are intermingled and can be easily distinguished and separated or if they are of the same nature and value, although not capable of actual separation by identifying each particular, and if the portion of each owner is known and a division can be made of equal proportionate value, then each may claim his or her own, regardless of the tortious conduct of one of the owners in intermingling the goods. However, if the mixture is indistinguishable because a new product is formed that is not capable of a just appreciation and division according to the original rights of each, or because the articles mixed are of different values or quantities and the original values or quantities cannot be determined, the one whose wrongful act caused the confusion must bear the loss.” (footnotes omitted)

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Case 119. It does not appear that money is handled any differently at common law than other fungible goods, although the nature of the goods is relevant to determining the equities.  See, e.g.,

1 Am. Jur. 2d Accession and Confusion § 2 (2010):
. . .

The rights of the various persons are to a great extent dependent upon the circumstances under which the intermingling took place and the character of the agencies producing it. There are four different situations in which there may be a confusion of rights involved in the confusion of goods:

  1. where it arises from the wilful or tortious conduct of one of the parties;

  2. where the mixture is made by consent of the parties;

  3. where it is made by unintentional mistake; and

  4. where it is the result of inevitable accident.

The character and quality of the goods is a material consideration in determining the rights of the parties, so that it is not possible to apply any fixed, definite rule to all cases of confusion of goods. The cardinal principle which is enforced both at law and in equity is that while a person should not, because of a purely innocent mistake, be made to undergo a loss where it is avoidable, a wrongdoer should not be permitted to profit by his or her own wrong nor should a wholly innocent party be allowed to suffer from that wrong.” (footnotes omitted)

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Chapter 3: Introduction | A. Cases 67–71 | B. Cases 72–93
C. Cases 94–96 | D. Cases 97–98 | E. Cases 99–101
F. Cases 102–104 | G. Cases 105–119 | H. Case 120

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