Front Page Titles (by Subject) CHAPTER XXVI.: OF TITLE TO THINGS PERSONAL BY OCCUPANCY. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XXVI.: OF TITLE TO THINGS PERSONAL BY OCCUPANCY. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF TITLE TO THINGS PERSONAL BY OCCUPANCY.
We are next to consider the title to things personal, or the various means of acquiring and of losing such property as may be had therein; both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one without contemplating the other also. And these methods of acquisition or loss are principally twelve:—1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.
And, first, a property in goods and chattels may be acquired by occupancy: which, we have more than once remarked,(a) was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, where such **401]things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.
1. Thus, in the first place, it hath been said, that anybody may seize to his own use such goods as belong to an alien enemy.(b)1 For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seize upon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public authority or the state, residing in the crown;(c) and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And therefore it hath been holden,(d) that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized.2 It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sunset puts in his claim of property.(e) Which is agreeable to the law of nations, as understood in the time of Grotius,(f) even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though the modern authorities(g) require, that before the property can *[*402be changed, the goods must have been brought into port, and have continued a night intra presidia, in a place of safe custody, so that all hope of recovering them was lost.3
And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war;(h) at least till his ransom be paid.(i)4 And this doctrine seems to have been extended to negro-servants,(j) who are purchased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of the masters who buy them: though, accurately speaking, that property (if it indeed continues) consists rather in the perpetual service, than in the body or person, of the captives.(k)
2. Thus again, whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen,(l) are vested by law in the king, and form a part of the ordinary revenue of the crown.5
3. Thus too the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an antient window6 overlooking my neighbour’s ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbour *[*403makes a tan-yard, so as to annoy and render less salubrious the air of my house or garden, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour’s prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current.7
4. With regard likewise to animals feræ naturæ, all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitants of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king’s subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference, at present made, arises merely from the positive municipal law.
5. To this principle of occupancy also must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements,8 by any possessor *[*404of the land who hath sown or planted it, whether he be owner of the inheritance, or of a less estate: which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testaments before the statute of wills,(m) and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action;(n) and by the statute 11 Geo. II. c. 19, though not by the common law,(o) they may be distreined for rent arrere.9 The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given;(p) and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny before they are severed from the ground.(q)
6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement:(r) but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread out of another’s grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted.(s)10 And these doctrines are implicitly copied and adopted by our Bracton,(t) and have since been **405]confirmed by many resolutions of the courts.(u) It hath even been held, that if one takes away and clothes another’s wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman.(w)
7. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares.(x) But if one wilfully intermixes his money, corn, or hay with that of another man, without his approbation or knowledge, or casts gold in like manner into another’s melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost.(y) But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain without his own consent.(z)11
8. There is still another species of property, which, (if it subsists by the common law,) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke,(a) and many others,(b) to be founded on the personal labour of the occupant.12 And this is the right which an author may be supposed to have in his own original literary composition: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a *[*406right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author’s consent. This consent may perhaps be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway; but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author before it is printed or published; yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtle and substantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate.
The Roman law adjudged, that if one man wrote any thing on the paper or parchment of another, the writing should belong to the owner of the blank materials:(c) meaning thereby the mechanical operation of writing, for which it directed the **407]scribe to receive a satisfaction; for in works of genius and invention, as in painting on another man’s canvas, the same law(d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as antient as the times of Terence,(e) Martial,(f) and Statius.(g) Neither with us in England hath there been (till very lately) any final(h) determination upon the right of authors at the common law.13
But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Anne, c. 19 (amended by statute 15 Geo. III. c. 53) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer;(i) and hath also protected that property by additional penalties and forfeitures: directing further, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration:14 and a similar privilege is extended to the inventors of prints and engravings, for the term of eight-and-twenty years, by the statutes 8 Geo. II. c. 13, and 7 Geo. III. c. 38, besides an action for damages, with double costs, by statute 17 Geo. III. c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies, 21 Jac. I. c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held that a temporary property therein becomes vested in the king’s patentee.(k)15
[(a) ] See pages 3, 8, 258.
[(b) ] Finch, L. 178.
[1 ] Questions respecting the seizure of property as prizes seldom arise in the common law or equity courts, they being in general cognizable only in the admiralty courts; and when a ship is bona fide seized as prize, the owner cannot sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty. 2 Marsh. R. 133. And the same rule applies to the imprisonment of the person when it has taken place merely as a consequence of taking a ship as prize, although the ship has been acquitted. 1 Le Caux vs. Eden, Doug. 594. For the law respecting seizures and captures, and the modes of acquiring and losing property thereby, see the admiralty decisions of Sir William Scott, collected and arranged in 1 Chitty’s Commercial Law, 377 to 512, and 2 Wooddes. 435 to 457.—Chitty.
[(c) ] Freem. 40.
[(d) ] Bro. Abr. tit. propertie, 38; forfeiture, 57.
[2 ] And, by modern decisions, the right to sue upon contracts made with him during peace is only suspended, not forfeited, by war. 13 Ves. Jr. 71. 3 B. & P. 191. 6 Taunt. 239. 1 Chitty’s Com. L. 423 to 426.—Chitty.
[(e) ] Ibid.
[(f) ]De j. b. & p. l. 3, c. 6, 3.
[(g) ] Bynkersh. quæst. jur. publ. 1. 4 Rocc. de Assecur. not. 66.
[3 ] Modern authorities require something more to vest the property of a captured vessel in the captors. “I apprehend that, by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchasor in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prize-vessel of a belligerent, has thought himself quite secure in making that purchase merely because that ship had been in the enemy’s possession twenty-four hours, or carried infra præsidia.” Sir William Scott, in the case of the Flad Oyen, 1 Rob. Rep. 139. See, also, 3 Rob. Rep. 97 and 236, 237, 238. Goss vs. Withers, 2 Burr. 683. Assivedo vs. Cambridge, 10 Mod. 79. But if, after the transfer of a prize to a neutral, a peace be concluded between the belligerents, the transfer becomes valid, even though there was no legal condemnation. 6 Rob. Rep. 142. The title of a neutral will not be defeated by his subsequently becoming an enemy. 6 Rob. Rep. 45. See 1 vol. Chitty’s Com. L. 433, 434. It has been established by several acts of parliament that, among English subjects, ships or goods taken at sea by an enemy, and afterwards retaken at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors on payment of certain salvage. 2 Burr. 1198, and 1 Bla. Rep. 27. The statute 43 Geo. III. c. 160 s. 39 makes an exception as to ships which have been set forth by the enemy as vessels of war, enacting that these shall not be restored to the original owners, but belong wholly to the recaptors. And if the property recaptured were captured first in an illegal trade, then the original right is divested, and the recaptors are not bound to restitution. 2 Rob. Rep. 77. In the case of the Santa Cruz (1 Rob. Rep. 49) Sir William Scott said, “The actual rule of the English maritime law I understand to be this: that the maritime law of England, having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice.” But restitution in any case is not gratuitous; for, by the 43 Geo. III. c. 160, certain rates of salvage are secured to the recaptors for saving or recovering the property. One-eighth of the beneficial interest in the whole recaptured property is given to king’s ships, and one-sixth to private ships. And the reward of salvage is given in cases of rescue when it is effected by the rising of the captured crew against the captors. 1 Rob. Rep. 271. 4 ib. 47. 1 Edw. Rep. 68.—Chitty.
[(h) ] Bro. Abr. tit. propertie, 18.
[(i) ] We meet with a curious writ of trespass in the register, (102,) for breaking a man’s house, and setting such his prisoner at large. “Quare domum ipsius A. apud. W. (in quâ idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. redemptionem suam cum præfato A. pro vita sua salvanda fecerat satisfactum foret, detinuit) fregit, et ipsum H. cepit et abduxit, vel quo voluit abire permisit, &c.”
[4 ] Ransom of ships, &c. is now illegal, unless in case of necessity, to be allowed by the admiralty, by 22 Geo. III. c. 25. 43 Geo. III. c. 160, ss. 34, 35, 36. 42 Geo. III. c. 72.—Chitty.
[(j) ] 2 Lev. 201.
[(k) ] Carth. 396. Ld. Raym. 147. Salk. 667.
[(l) ] Book i. ch. 7.
[5 ] Chancellor Kent says, “It is requisite that the former owner should have completely relinquished the chattel, before a perfect title will accrue to the finder; though he has in the mean time a special property sufficient to maintain an action for an injury to it, or to recover possession from any but the true owner. Armor vs. Delamire, 1 Stra. 505. Branden vs. Huntsville Bank, 1 Stewart, 320. He is not even entitled to a reward from the owner for finding a lost article, if none has been promised. He has no lien on the article found for his trouble and expense; and he is only entitled to indemnity against his necessary and reasonable expenses incurred on account of the chattel. Armory vs. Flynn, 10 Johns. 102. Binstead vs. Buck, 3 Sir Wm. Bl. 1117. Nicholson vs. Chapman, 2 H. Bla. 254. Etter vs. Edwards, 4 Watts, 63. It is considered in the two last cases to be still an unsettled point whether the finder of lost property can recover a compensation for the labour and expense voluntarily bestowed upon lost property found. In Reeder vs. Anderson, 4 Dana, 193, it was held that the finder was entitled, under an implied assumpsit, for his indemnity at least against his expenditure of time or money in the successful recovery of lost property. Mr. Justice Story (Bailment, p. 391, 2d ed.) gives a strong opinion in favour of compensation (or what he in admiralty-law language calls salvage) to the ‘mere finders of lost property on land,’ beyond a full indemnity for their reasonable and necessary expenses. I beg leave to say that it appears to me that such findings have no analogy in principle to the cases of hazardous and meritorious sea or coast salvage under the admiralty law, and that the rule of the common law as illustrated by chief-justice Eyre in Nicholson vs. Chapman, as to these mere land findings, is the better policy.” 2 Com. 356.—Sharswood.
[6 ] Formerly it was holden that a party could not maintain an action for a nuisance to an ancient light, unless he had gained a right to the window by prescription. 1 Leon. 168. Cro. El. 118. But the modern doctrine is, that upon proof of an adverse enjoyment of lights for twenty years or upwards unexplained, a jury may be directed to presume a right by grant or otherwise. 2 Saund. 175, a. 1 Esq. R. 148. But if the window was opened during the seisin of a mere tenant for life, or a tenancy for years, and the owner in fee did not acquiesce in, or know of the use of the light, he would not be bound. 11 East, 372. 3 Campb. 444. 4 Camb. 616. And where the adjoining land was glebeland, in the possession of a rector, tenant for life, it was held that there could be no presumption of a grant so as to preclude a purchasor thereof, under 55 Geo. III. c. 147, from building and obstructing an ancient light, (4 B. & A. 579;) but when the window has been proved to have been in existence upwards of twenty years, and its origin cannot be traced, the purchasor from the owner in fee cannot disturb it, though no evidence that the latter acquiesced in the window can be adduced. 2 Bar. & Cres. 686. 4 Dowl. & R. 234. If the owner of land build a house on part, and afterwards sell the house to one person and the rest of the land to another, the vendee of the house may maintain an action against the vendee of the land for obstructing his light, though the house was not an ancient one; because the law will not suffer the vendor, or any person claiming under him, to derogate from his own grant; and consequently less than twenty years’ use of the light suffices. 1 Lev. 122. 1 Ventr. 237. 1 Price, 27. Rayn. vs. Moodys, Rep. 24. 2 Saund. 144, n. 4. But if an ancient window has been completely blocked up above twenty years, it loses its privilege, (3 Camb. 514;) and even the presumption of right from twenty years’ undisturbed enjoyment is excluded by the custom of London, which entitles every citizen to build upon an ancient foundation as high as he pleases. Com. Rep. 273. 2 Swanst. 333. But the circumstance of a window being built contrary to the building act affords no defence to an action for obstructing it, (1 Marsh, 140;) and if ancient windows be raised and enlarged, the owner of the adjoining land cannot legally obstruct the passage of light and air to any part of the space occupied by the ancient window. 3 Camb. 80. Total deprivation of light is not necessary to sustain this action; and, if the party cannot enjoy the light in so free and ample a manner as he did before, he may sustain the action; but there should be some sensible diminution of light or air. 4 Esq. R. 69. Chilton vs. Sir T. Plumer, K. B. A. D. 1822. The building a wall which merely obstructs the prospect is not actionable, (9 Co. 58, b. 1 Mod. 55;) nor is the opening a window and destroying the privacy of the adjoining property; but such new window may be immediately obstructed, to prevent a right to it being acquired by twenty years’ use. 2 Camb. 82.—Chitty.
[7 ] Running water is originally publici juris; and an individual can only acquire a right to it by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who, if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. But where the plaintiff alleged that defendant had erected one dam above plaintiff’s premises, and widened another, and thereby prevented the water from running in its usual course and in its usual calm and smooth manner to the plaintiff’s premises, and thereby the water ran in a different channel and with greater violence, and injured the banks and premises of plaintiff, but did not allege any injury from the want of a sufficient quantity of water, and the jury found that plaintiff’s premises were not injured, but were of opinion that defendant had no right to stop the water or keep it pent up in the summer time, held that the plaintiff could not recover damages for the erection of the dam, but was bound to allege and prove that he had sustained an injury from the want of a sufficient quantity of water. 2 B. & C. 910. 4 Dowl. & Ryl. 583, S. C. The owner of lands through which a river runs cannot, by enlarging a channel of certain dimensions leading out of the river through which the water had been used to flow before any appropriation of it by another, divert more of it, to the prejudice of any other land-owner lower down the river, who had at any time before such enlargement appropriated to himself the surplus water which did not escape by the former channel. 6 East, 208. And the occupier of a mill may maintain an action for forcing back water and injuring his mill, although he has within a few years previous erected a wheel requiring less water than the one he previously used. 1 B. & A. 258. But where the defendant erected a dam above the mill of the plaintiff, by which the water was diverted from its accustomed channel, but to which it returned long before it reached the plaintiff’s mill, which diversion affected the regularity of the supply, though it produced no waste of water, it was held that the plaintiff was entitled to recover. 7 Moore, 345. As to the pleadings, see 1 Price’s Rep. 1 and 2 Chitty on Pl. 788.—Chitty.
[8 ] The right to emblements does not seem to be aptly referred to the principle of occupancy; for they are the continuation of an inchoate and not the acquisition of an original, right.—Christian.
[(m) ] Perk. 512.
[(n) ] Bro. Abr. tit. emblements, 21. 5 Rep. 116.
[(o) ] 1 Roll. Abr. 666.
[9 ] But, by the 56 Geo. III. c. 50, no sheriff or other officer shall sell or carry off from any lands any straw, chaff, or turnips, in any case, nor any hay or other produce, contrary to the covenant or written agreement made for the benefit of the owner of the land; but the tenant must give previous notice to the sheriff, &c. of the existence of such covenant, &c. But the produce, &c. may be so sold, subject to an agreement to expend it on the land. And landlords are not to distrein for rent on purchasors of crops severed from the soil, or other things sold subject to such agreement; nor shall the sheriff sell or dispose of any clover, rye-grass, or any artificial grass whatsoever, which shall be newly sown and be growing under any crop of standing corn. See sections 6 and 7.—Chitty.
[(p) ] Pages 122, 146.
[(q) ] 3 Inst. 109.
[(r) ] Inst. 2, 1, 25, 26, 31. Ff. 6, 1, 5.
[(s) ] Inst. 2, 1, 25, 34.
[10 ] This also has long been the law of England; for it is laid down in the year-books that, whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, cloth into a coat, or if a tree be squared into timber, or silver melted or beat into a different figure. 5 Hen. VII. fo. 15. 12 Hen. VIII. fo. 10.—Christian.
The cases referred to (Bro. Abr. Propertie, 23 Moor. 20, Poph. 38) are very explicit. See also 2 Campb. 576. Com. Dig. Pleader, 3 M. 28. Bac. Abr. Tresp. E. 2.—Chitty.
If the materials of one person are united to the materials belonging to another, by the labour of the latter, who furnishes the principal materials, the property in the joint product is in the latter by the right of accession. Merritt vs. Johnson, 7 Johns. 473. Stevens vs. Briggs, 5 Pick. 177. Glover vs. Austin, 6 Pick. 209. Barr vs. St. John, 16 Conn. 322. Pulcifer vs. Page, 32 Maine, 404. Where one by his labour on another’s property wrongfully or by mistake changes its form, he gains thereby no title to it, but the owner may seize it in its new shape, if he can prove the identity of the original materials. Betts vs. Lee, 5 Johns. 348. Silsbury vs. McCoon, 4 Denio, 332. Thus, where one cut down the trees of another and made them into shingles, it was held that the property in the shingles was in the owner of the trees. Chandler vs. Edson, 9 Johns. 362. So where coals were made out of another’s wood. Curtis vs. Groat, 6 Johns. 168. Riddle vs. Driver, 12 Ala. 590. And where one converts the materials of another, at his request, into a different article by manufacturing process, the property in the manufactured article is in the owner of the original material. Babcock vs. Gill, 10 Johns. 287. Eaton vs. Lynde, 15 Mass. 242. Worth vs. Northam, 4 Iredell, 102. Where a manufacturer or mechanic agrees to construct a particular article out of his own materials, or where he is to furnish the principal part of the materials, the property of the article until its completion and delivery is in the maker. Gregory vs. Stryker, 2 Denio, 268.—Sharswood.
[(t) ]L. 2, c. 2 and 3.
[(u) ] Bro. Abr. tit. propertie, 23. Moor. 20. Poph. 38.
[(w) ] Moor. 214.
[(x) ] Inst. 2, 1, 27, 28. 1 Vern. 217.
[(y) ] 2 Inst. 2, 1, 28.
[(z) ] Poph. 38. 2 Bulstr. 325. 1 Hal. P. C. 513. 2 Vern. 516.
[11 ] Where one so confounds another’s property with his own that it cannot be distinguished, he must bear all the loss caused by the confusion, (Brackenridge vs. Holland, 2 Blackf. 377. Nast vs. Ten Eyck, 2 Johns. C. R. 62. Haseltine vs. Stockwell, 30 Maine, 237. Bryant vs. Ware, ib. 295,) but not where the confusion has arisen from mere negligence, and not from fraud or design. Pratt vs. Bryant, 30 Verm. 333. If the mortgagor of personal property mix other property of his own with the mortgaged goods, without the consent of the mortgagee, such goods become subject to the lien and operation of the mortgage. Dunning vs. Stearns, 9 Barb. Sup. Ct. 630.
But the rule in regard to confusion of goods is carried no further than necessity requires; and if goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. Colwill vs. Reeves, 2 Campb. 575. Holbrook vs. Hyde, 1 Verm. 286. So if the corn or flour mixed together were of equal value, then the injured party takes his given quantity, and not the whole. This is lord Eldon’s construction of the cases in the old law. Lupton vs. White, 15 Ves. 442. But if the articles were of different value or quality, and the original value not to be distinguished, the party takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily or lose it. No court of justice is bound to make the discrimination for him. 2 Kent’s Com. 365.—Sharswood.
[(a) ] On Govt. part. 2, ch. 5.
[(b) ] See page 8.
[12 ] The right to the exclusive use of particular distinctive trade-marks, or of a particular partnership firm, (7 Sim. 421,) for enabling the public to know if it is dealing with or buying the manufactures of a particular person, is somewhat analogous to literary copyright, and, though partially founded on the notion of protecting the public from fraud, (3 Myl. & Cr. 338. 8 Sim. 477,) is an example of a right much more evidently arising out of occupancy. See 3 Doug. 293. 3 B. & Cr. 541. 2 Ves. & B. 218. 2 Keen, 21[Editor: illegible characer] 3 Myl. & Cr. 1, 338. 5 Scott, N. R. 562.—Sweet.
[(c) ]Si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit hujus corporis non Titius sed tu dominus esse videris. Inst. 2, 1, 33. See page 404.
[(d) ] Ibid. 34.
[(e) ]Prol. in Eunuch. 20.
[(f) ]Epigr. i. 67, iv. 72, xiii. 3, xiv. 194.
[(g) ]Juv. vii. 83.
[(h) ] Since this was first written, it was determined in the case of Miller vs. Taylor, in B. R. Pasch. 9 Geo. III. 1769, that an exclusive and permanent copyright in authors subsisted by the common law; but afterwards, in the case of Donaldson vs. Becket, before the house of lords, 22d Feb. 1774, it was held that no copyright now subsists in authors after the expiration of the several terms created by the statute of queen Anne.
[13 ] Whether the productions of the mind could communicate a right of property or of exclusive enjoyment in reason and nature, and, if such a moral right existed, whether it was recognised and supported by the common law of England, and whether the common law was intended to be restrained by the statute of queen Anne, are questions upon which the learning and talents of the highest legal characters in this kingdom have been powerfully and zealously exerted.
These questions were finally so determined that an author has no right at present beyond the limits fixed by the statute; but, as that determination was contrary to the opinion of lord Mansfield, the learned commentator, and several other judges, every person may still be permitted to indulge his own opinion upon the propriety of it without incurring the imputation of arrogance. Nothing is more erroneous than the common practice of referring the origin of moral rights and the system of natural equity to that savage state which is supposed to have preceded civilized establishments, in which literary composition, and of consequence the right to it, could have no existence. But the true mode of ascertaining a moral right, I conceive, is to inquire whether it is such as the reason—the cultivated reason—of mankind must necessarily assent to.
No proposition seems more conformable to that criterion than that every one should enjoy the reward of his labour,—the harvest where he has sown, or the fruit of the tree which he has planted.
And if any private right ought to be preserved more sacred and inviolable than another, it is where the most extensive benefit flows to mankind from the labour by which it is acquired. Literary property, it must be admitted, is very different in its nature from a property in substantial and corporeal objects, and this difference has led some to deny its existence as property; but whether it is sui generis, or under whatever denomination of rights it may more properly be classed, it seems founded upon the same principle of general utility to society, which is the basis of all other moral rights and obligations.
Thus considered, an author’s copyright ought to be esteemed an inviolable right, established in sound reason and abstract morality.
No less than eight of the twelve judges were of opinion that this was a right allowed and perpetuated by the common law of England; but six held that the enjoyment of it was abridged by the statute of queen Anne, and that all remedy for the violation of it was taken away after the expiration of the terms specified in the act; and agreeable to that opinion was the final judgment of the lords.
See the arguments at length of the judges of the King’s Bench and the opinions of the rest in 4 Burr. 2303.
Before the union of Great Britain and Ireland, in 1801, no statute existed to protect copyright in Ireland; but now, by the stat. 41 Geo. III. (U. K.) c. 107, provisions similar to those in the statute of Anne are re-enacted, and extended to the whole of the united kingdom. These provisions are also enforced by additional remedies and increased penalties, and an action on the case for damages is specifically given to the party injured. Previous to this act, men of genius and learning in Ireland were stimulated only by the incentive which lord Camden splendidly describes in the conclusion of his argument against literary property. “Glory is the reward of science, and those who deserve it scorn all meaner views. I speak not of the scribblers for bread, who tease the press with their wretched productions. Fourteen years are too long a privilege for their perishable trash. It was not for gain that Bacon, Newton, Milton, Locke, instructed and delighted the world. When the bookseller offered Milton five pounds for his Paradise Lost, he did not reject it and commit his poem to the flames, nor did he accept the miserable pittance as the reward of his labour: he knew that the real price of his work was immortality, and that posterity would pay it.”—Christian.
In Wheaton vs. Peters, 8 Peters, 591, the question of copyright was discussed by counsel with great learning and ability, and a majority of the Supreme Court held that an author had no common-law copyright in his published works; that if such a common-law right ever existed in England, yet there was no common law of the United States on the subject; and that there was no evidence or presumption that any such common-law right had ever been introduced or adopted in Pennsylvania where the controversy in that case arose; and that as in England, since the statute of 8 Anne, an author’s exclusive right of literary property in his published works was confined to the period limited by the statute, so in that case the author’s right depended upon the acts of Congress of 1790 and 1802. 2 Kent’s Com. 376, n.—Sharswood.
[(i) ] By statute 15 Geo. III. c. 53, some additional privileges in this respect are granted to the universities and certain other learned societies.
[14 ] The statute of 54 Geo. III. c. 156 enacts that the author of any book printed and published subsequently to the said act, and the assignee or assigns of such author, shall have the sole liberty of printing and reprinting such book for the full term of twenty-eight years, to commence from the day of first publishing the same; and also, if the author shall be living at the end of that period, for the residue of his natural life; and that if any person, in any part of the British dominions, shall, within the terms and times granted and limited by the said act as aforesaid, print, reprint, or import, or cause to be printed, reprinted, or imported, any such book, without the consent of the author or other proprietor of the copyright first had in writing, or, knowing the book to be so printed, reprinted, or imported without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, or shall have in his possession for sale, any such book, without such consent first had and obtained as aforesaid, then such offender shall be liable to a special action on the case, at the suit of the author or other proprietor of the copyright of such book, and the author shall recover such damages as the jury on the trial of such action, or on the execution of a writ of inquiry thereon, shall give or assess, together with double costs of suit; and every such offender shall also forfeit such book or books, and shall deliver the same to the author or other proprietor of the copyright thereof, and the said author or proprietor shall make waste paper of such book or books; and every offender shall also forfeit three-pence for every sheet thereof, either printed or printing, or published or exposed to sale: provided that all actions, suits, bills, indictments, or informations for any offence committed against the said act shall be brought, sued, and commenced within twelve months next after such offence committed. The title to the copyright of books is directed by the act to be entered at Stationers’ hall, within a limited time, under a penalty of forfeiture of five pounds, together with eleven times the price at which such books shall be sold or advertised for sale: provided that no failure in making such entry shall in any manner affect the copyright, but shall only subject the person making default to the penalty aforesaid under the said act.
Whenever an action at the suit of the author would lie against a person pirating books, (Lord Byron vs. Johnston, 2 Meriv. 29. Hogg vs. Kirby, 8 Ves. 225. Stockdale vs. Onwhyne, 5 Barn. & Cress. 177,) or music, (Platt vs. Button, 19 Ves. 447. Clementi vs. Walker, 2 Barn. & Cress. 861,) or prints, or charts, (Blackwell vs. Harper, Barnard, Cha. Rep. 120. Wilkins vs. Aikin, 17 Ves. 425. Harrison vs. Hogg, 2 Ves. Jr. 323. Longman vs. Winchester, 16 Ves. 271. Newton vs. Cowie, 4 Bingh. 245,) a court of equity will grant an injunction to restrain a fraud on the author’s property; but, where the character of the publication is such that no damages could be recovered in respect thereof at law, equity will refuse to interpose. Lawrence vs. Smith, Jacob’s Rep. 472. Walcot vs. Walker, 7 Ves. 2. Southey vs. Sherwood, 2 Meriv. 440. Lord and Lady Percival vs. Phipps, 2 Ves. & Bea. 26. Gee vs. Pritchard, 2 Swanst. 415. The plaintiff must also, in order to entitle him to an injunction, show the property in the pirated work to be clearly vested in himself, either as the author, or as an assignee, for his own benefit, or in trust for others; and this interest must be distinctly stated in the bill; for the injunction ought to be warranted by what appears in the bill, not by what is brought forward merely by affidavit. Nicol vs. Stockdale, 3 Swanst. 689.
The collection of materials may establish a claim to copyright in a work, notwithstanding the subject may be obvious to all mankind; and an injunction will issue to stop the publication of a work which is a servile copy of a preceding one, with merely colourable alterations. Matthewson vs. Stockdale, 12 Ves. 273, 276. Butterworth vs. Robinson, 5 Ves. 709. Tonson vs. Walker, 3 Swanst. 679. The case would be different if the new work contained not only alterations, but corrections and improvements of the original work, (Cary vs. Faden, 5 Ves. 26;) and such additions and corrections may properly be made the subject of copyright. Cary vs. Longman & Rees, 1 East, 380. But it will not be permitted that one man should, under pretence of quotation, in fact publish another’s work and defraud him of the fruit of his labours, (Wilkins vs. Aikin, 17 Ves. 424;) for, although an abstract or fair abridgment of a publication is allowable, (Dodsley vs. Kinnersley, Ambl. 403. Gyles vs. Wilcox, Barnard, Cha. Rep. 368. Bell vs. Walker & Debrett, 1 Br. 451. Whittingham vs. Wooler, 2 Swanst. 431,) a colourable abstract will be restrained. Butterworth vs. Robinson, 5 Ves. 709. Carnan vs. Bowles, 1 Cox, 285. Macklin vs. Richardson, Ambl. 696. Gyles vs. Wilcox, 2 Atk. 142.
No property can be acquired in any article copied, in the same language, from a prior work, (Barfield vs. Nicholson, 2 Sim. & Stu. 1;) but a translation is as much entitled to protection as an original production. Wyatt vs. Bernard, 2 Ves. & Bea. 78.
Forms of indictments, it has been decided, cannot be the subjects of copyright; nor can a statement of the evidence necessary to support indictments, and subjoined thereto, be so appropriated. And further, though an author, after the publication of one or more editions of his work, sells the copyright, with an undertaking to prepare and edit the subsequent editions of the work at a fixed price, he may publish any new matter on the same general subject in a separate publication on his own account, notwithstanding the insertion of such new matter in the subsequent editions of the work of which he has sold the copyright may be absolutely necessary to their proper completion. Sweet vs. Archbold,—so held by the vice-chancellor in Hil. T. 1828, and by the lord chancellor during the sittings after that term.
No one who chooses to copy and publish a specification of patents can thereby acquire a right to restrain another from copying the same; for these are common property. Wyatt vs. Barnard, 3 Ves. & Bea. 78.
When a plaintiff has permitted repeated infringements of his copyright for a length of time, equity will not interfere (by injunction, at any rate, whether it may be proper to direct an account to be kept or not) before the right is determined at law. Platt vs. Button, 19 Ves. 448. Rundell vs. Murray, Jacob’s Rep. 316.
Whether the act of publication abroad makes a work at once publici juris may be very questionable; but there can be no doubt that, where an author prints and publishes abroad only, or where he does not take prompt measures to publish here, he cannot, after a reasonable time for his publishing here has elapsed, and after some other person, in the regular and fair course of trade, has published the work in this country, sustain an injunction against such person. Clementi vs. Walker, 2 Barn. & Cress. 866, 870.
A parol assignment of the copyright of a work may not be sufficient, perhaps, to give the assignee the privileges conferred by the legislature upon the author. Power vs. Walker, 3 Mau. & Sel. 9. But when a publisher has been induced by such assignment to employ his capital and attention upon a work, withdrawing them from other matters in which they might possibly have been more profitably employed, and when the author has acquiesced in seeing his parol assignment acted upon for a length of time, a court of equity, even if it acknowledged the author’s strict right, would probably think his conduct entitled him to no summary relief by injunction, and would leave him to such remedy as he might have at common law. Rundell vs. Murray, Jacob’s Rep. 316.
The proprietor of a copyright must file a separate bill against each bookseller taking copies of a spurious edition for sale; for there is no privity between such parties, and the defendants may justify their several acts upon totally dissimilar grounds. Dilly vs. Doig, 2 Ves. Jr. 487. Berke vs. Harris, Hardr. 337.
In cases of alleged piracy of literary property, a reference is usually directed to the Master, (— vs. Leadbetter, 4 Ves. 681. Nicol vs. Stockdale, 3 Swanst. 689;) but, in order to save expense, the court itself will sometimes compare the two works. Whittingham vs. Wooller, 2 Swanst. 431.
Parts of this note and the next are extracted from 2 Hoveden on Frauds, 147, 152.
As to the kind of prerogative copyright subsisting in certain publications, as Bibles, liturgies, acts of parliament, proclamations, and orders of council, see post, p. 410.
Mr. Christian observes that “the principal differences in these three statutes concerning prints seem to be these: the 8 Geo. II. gives an exclusive privilege of publishing to those who invent or design any print for fourteen years only; the 7 Geo. III. extends the term to twenty-eight years, absolutely, to all who either invent the design or make a print from another’s design or picture; and those who copy such prints within that time forfeit all their copies,—to be destroyed,—and five shillings for each copy. The 17 Geo. III. gives the proprietor an action to recover damages and double costs for the injury he has sustained by the violation of his right.”—Chitty.
But this act has now been repealed; and, by several recent statutes, the law of copyright has been placed upon a different footing. By the statute 5 & 6 Vict. c. 45, the protection of the law is extended to the period of forty-two years from the first publication of a work or the period of the life of the author, and seven years following, whichever of these two terms may be the longer. And the copyright of a book published after the author’s death endures for forty-two years from the publication. With regard to encyclopædias, reviews, and periodicals, the act provides that the copyright of articles supplied to such works shall belong to the proprietors of the works for the same period as is given to the authors of books whenever the article has been written on the terms that the copyright shall belong to the proprietor; but the copyright does not vest until payment has been actually made.
In the absence of any agreement, after twenty-eight years from the publication of an article the right of publishing it in a separate form reverts to the author for the remainder of the term of forty-two years given by the statute. During the twenty-eight years thus allowed to the publisher in the absence of an agreement, the consent of the author or his assigns must be obtained to enable the proprietor of the encyclopædia, review, or periodical to publish the article in a separate form. The statute also reserves to the author of any dramatic piece or musical composition, and to his assigns, the sole right of representation or performance in public for the same term as is appointed for the duration of copyright in books. These rights extend to foreigners residing in this country. It has also been decided that a foreigner residing abroad is entitled to the copyright of a work composed by him which has been first published in this country. Boosey vs. Davidson, 13 Q. B. 257. Boosey vs. Jeffries, 6 Ex. 580.—Kerr.
By the act of Congress 4 Feb. 1831, (4 Stat. 436. 4 Story’s Laws, 2221,) which has superseded and repealed all former laws on the subject, the authors of books, maps, charts, and musical compositions, and the inventors and designers of prints, cuts, and engravings, being citizens of the United States or residents therein, are entitled to the exclusive right of printing, reprinting, publishing, and vending them for the term of twenty-eight years from the time of recording the title thereof; and if the author, inventor, or designer, or any of them, where the work was originally composed and made by more than one person, be living, and a citizen of the United States, or resident therein at the end of the term, or, being dead, shall have left a widow or child or children, either or all of them living, she or they are entitled to the same exclusive right for the further term of fourteen years on complying with the terms prescribed by the act of Congress 2 Kent’s Com. 373.—Sharswood.
[(k) ] 1 Vern. 62.
[15 ] When the crown, on behalf of the public, grants letters-patent, the grantee thereby enters into a contract with the crown, in the benefit of which contract the public are participators. Under certain restrictions, affording a reasonable recompense to the grantee, the use of his invention, improvement, and employment of capital is communicated to the public. If any infringement of a patent be attempted after there has been an undisputed enjoyment by the patentee under the grant for a considerable time, courts of equity will deem it a less inconvenience to issue an injunction until the right can be determined at law than to refuse such preventive interference merely because it is possible the grant of the crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be that the patentee must be ruined by litigation. Harmer vs. Plane, 14 Ves. 132. Universities of Oxford and Cambridge vs. Richardson, 6 Ves. 707. Williams vs. Williams, 3 Meriv. 160. But if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill vs. Thompson, 3 Meriv. 624.
The grant of a patent, as already stated, is in the nature of a purchase for the public, to whom the patentee is bound to communicate a free participation in the benefit of his invention at the expiration of the time limited. Williams vs. Williams, 3 Meriv. 160. If, therefore, the specification of a patent be not so clear as to enable all the world to use the invention, and all persons of reasonable skill in such matters to copy it, as soon as the term for which it has been granted is at an end, this is a fraud upon the public, and the patent cannot be sustained. Newbury vs. James, 2 Meriv. 451. Ex parte Fox, 1 Ves. & Bea. 67. Turner vs. Winter, 1 T. R. 605. Harmer vs. Plane, 11 East, 107.
The enrolment of a patent cannot be dispensed with upon the ground that, if the specification is made public, foreigners may take advantage of the invention; for the king’s subjects have a right to see the specification. Ex parte Koops, 6 Ves. 599. Nor can the date of the patent be altered after it is once sealed in order to enlarge the time (four months) allowed by the statute for the enrolment of specifications, even though the case may be a hard one and the delay has arisen from innocent misapprehension. Ex parte Beck, 1 Br. 577. Ex parte Koops, ubi supra. And if a patentee seek by his specification more than he is strictly entitled to, his patent is thereby rendered ineffectual, even to the extent to which he would otherwise be entitled. Hill vs. Thompson, 3 Meriv. 629. Harmer vs. Plane, 14 Ves. 135.
When a person has invented certain improvements upon an engine, or other subject for which a patent has been granted, and those improvements cannot be used without the original engine, at the expiration of the patent for such original engine a patent may be taken out for the improvements; but before that time there can be no right to make use of the substratum protected by the first patent. Ex parte Fox, 1 Ves. & Bea. 67. And where industry and ingenuity have been exerted in annexing to the subject of a patent improvements of such a nature that their value gives an additional value to the old machine, though a patent may be obtained for such improvements, yet, if the public choose to use the original machine without the improvements, they may do so without any restriction at the expiration of the original grant. If the public will abstain from the use of the first invention, in consideration of the superior advantages of the improved instrument, it is well; but the choice must be left open. Harmer vs. Plane, 14 Ves. 134.—Chitty.
The Patent-Law Amendment Act (15 & 16 Vict. c. 83) now regulates the terms upon which letters-patent may be granted. By this statute, the fees which it was formerly necessary to pay upon obtaining a patent have been greatly reduced, and the payment of them is spread over the space of several years; so that, if an invention be not found lucrative, the patent may be discontinued and the fees saved. Letters-patent granted under this act contain a condition that the same shall be void at the end of three years unless a fee of 40l., with 10l. stamp duty, be then paid; and again at the end of seven years from the grant, unless a fee of 80l. and 20l. stamp duty be paid.
The statute 5 & 6 Will. IV. c. 83 authorized a prolongation of the original term, not exceeding seven years, to be given, on the recommendation of the Judicial Committee of the privy council; and, by statute 7 & 8 Vict. c. 69, a further term, not exceeding fourteen years, may be granted, if it be shown that the inventor has not been remunerated during the former period for the expense and labour incurred in perfecting his invention.—Kerr.
By the act of Congress of July 4, 1836, c. 357, (4 Story’s Laws, 2504,) all former laws of the United States on the subject of patents are repealed, and the patent system reenacted with important amendments. The Patent-Office is now attached to the Department of the Interior, (Act March 3, 1849. 9 Statutes, 395,) and a Commissioner of Patents appointed. Applications for patents are to be made in writing to the commissioner by any person having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter not known or used by others before his discovery or invention thereof, and not, at the time of his application for a patent, in public use or sale, with his consent or allowance as the inventor or discoverer. It must be accompanied with specifications, drawings, specimens of ingredients, and models, according to the nature of the case. It is the duty of the commissioner to examine the alleged new invention or discovery and, if satisfied that the applicant is entitled under the law, he is to issue a patent in the name of the United States to him, his heirs, executors, administrators, or assigns, for the exclusive right of making, using, and vending the same for a term not exceeding fourteen years. The patent may, in special cases and in the discretion of the board of commissioners, be renewed and extended to the further term of seven years. If the application be rejected and the applicant persist in his claim, he is to make his oath or affirmation anew; and, if the specification and claim be not so modified as to remove the objection, the applicant may appeal to a board of three examiners, to be appointed by the Secretary of the Interior; and the Commissioner of Patents is to be governed by their decision. 2 Kent’s Com. 367.—Sharswood.