1Paulus, On Vitellius, Book III. Usufruct is the right to use and enjoy the property of others, at the same time preserving intact the substance of the same.

2Celsus, Digest, Book XVIII. For usufruct is a right in the material part of a thing, so that, if it is removed, the usufruct itself must be removed also.

3Gaius, Diurnal, or Golden Matters, Book II. An usufruct can be created in any real property by means of a legacy, so that the heir may be directed to transfer the usufruct to some person; and he is understood to transfer it if he conducts the legatee upon the land or permits him to enjoy or use the same. Where any one wishes to create an usufruct, he can do so by means of agreements and stipulations, without making a will. 1An usufruct may be created not only with reference to land and buildings but also with reference to slaves, beasts of burden, and other property. 2In order, however, that the mere ownership may not become absolutely worthless on account of the perpetual existence of the usufruct, it has been decided that the usufruct may be extinguished in various ways, and revert to the mere ownership. 3Moreover, in whatever way an usufruct is created and terminated, mere use can in the same way be created and terminated.

4Ad Dig. 7,1,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 200, Note 3.Paulus, On the Edict, Book II. In many instances usufruct is a part of the ownership and stands by itself, since it can be granted immediately, or from a certain date.

5Papinianus, Questions, Book VII. An usufruct can, in the beginning, be created with reference to a share of property whether it be divided or undivided, and it can also be lost by lapse of time fixed by law; and on the same principle it can be diminished by the operation of the Lex Falcidia. Where, however, the party who promised an usufruct dies, the obligation to grant the same is divided in proportion to the shares of the estate; and if it must be granted in land held in common, and one of the owners is defendant in a suit, the transfer shall be made in proportion to the share of the said defendant.

6Gaius, On the Provincial Edict, Book VII. An usufruct may be created in several ways; for instance it may be bequeathed as a legacy. The mere ownership of the property can be left by way of legacy, and the usufruct be reserved, so that the usufruct will remain for the heir. 1An usufruct may be created also by an action for the partition of an estate, or by one for the division of property held in common, where the court adjudges the mere ownership to one party and the usufruct to another. 2An usufruct is, moreover, acquired for us not only through ourselves, but also through persons whom we have under our control. 3There is nothing to prevent my slave being appointed an heir, and the bare ownership be left as a legacy, the usufruct being reserved.

7Ulpianus, On Sabinus, Book XVII. Where an usufruct is bequeathed as a legacy, the entire profits of the property belong to the usufructuary. An usufruct of either real or personal property may be bequeathed. 1When that of real property is bequeathed, as for instance, where the usufruct of a house is left, all income therefrom belongs to the usufructuary; and also whatever is derived from buildings, enclosures, and the other things which appertain to the house. Wherefore, it has been established that an usufructuary can be placed in possession of an adjoining building, with a view to the prevention of threatened injury; and he can retain possession of the said building as owner, if the other party persists in not furnishing security; nor will he lose anything when the usufruct is terminated. On this principle, Labeo states that the owner of property has no right to raise his building if you are unwilling; as, where the usufruct of unoccupied ground has been bequeathed, he cannot erect a house thereon; which opinion I think to be correct. 2Therefore, since all the produce of the property belongs to the usufructuary, he can, as Celsus states in the Eighteenth Book of the Digest, be compelled by application to the court to repair the house, only so far, however, as to keep it in good condition, but if any of it should be destroyed through age, neither one of the parties can be compelled to repair it; still, if the heir should do so, he must permit the usufructuary to use it; wherefore Celsus asks to what an extent must it be kept in repair? If any portions are destroyed by age he cannot be compelled to repair them, and therefore he is only liable for moderate repairs, since as the usufruct is left to him, he assumes other burdens also, as for instance, taxes, tribute, rent, or a provision for maintenance charged upon the property; and this Marcellus stated in the Thirteenth Book. 3Cassius also says in the Eighth Book of the Civil Law that an usufructuary can be compelled to make repairs by applying to the court, just as he is obliged to plant trees; and Aristo states in a note that this is correct. Neratius also says in the Fourth Book of Parchments, that an usufructuary cannot be prohibited from making repairs, for the same reason that he cannot be prevented from plowing or cultivating the soil; and not only can he make necessary repairs, but also he may make improvements for the purpose of enjoyment, as stucco-work, mosaic pavements, and things of this kind; but he cannot enlarge the buildings, or remove anything from them which is useful:

8The Same, On the Edict, Book XL. Even though his intention is to put something better in its place, and this opinion is the true one.

9The Same, On Sabinus, Book XVII. Moreover, where the usufruct of land has been bequeathed, whatever is derived from the land and whatever can be collected therefrom, is included in the profits which belong to the legatee, on the condition, however, that he makes use of it as a good citizen would do; and indeed, Celsus states in the Eighteenth Book of the Digest, that he can be compelled to cultivate the land in a suitable manner. 1If there are bees on the land, the usufruct of them also belongs to him. 2But where the land contains stone quarries, and the usufructuary desires to cut stone, or it contains chalk or sand pits; Sabinus says he has a right to make use of all these, just as a thrifty owner would do; which I think to be the correct opinion. 3Even where these quarries have been discovered after the bequest of the usufruct, when the usufruct of the entire field and not certain parts of the same were left, they are included in the legacy. 4Ad Dig. 7,1,9,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 188, Note 2.Intimately connected with this is a question which has often been treated of with respect to accessions, made to property; and it has been established that the usufruct of alluvial soil also belongs to the usufructuary. But where an island appears in a river opposite a tract of land, Pegasus says that the usufruct of it does not belong to the usufructuary of the adjoining land, although it is an accession to the property; for it is, as it were, a peculiar tract of real-estate to whose usufruct you are not entitled. This opinion is not unreasonable, for where the increase is not noticeable the usufruct is increased, but where it appears separately, it does not contribute to the benefit of the usufructuary. 5Ad Dig. 7,1,9,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 184, Note 5.Cassius states in the Eighth Book of the Civil Law that the proceeds obtained from the capture of birds and game belong to the usufructuary, and therefore those from fishing do also. 6I am of the opinion that the yield of a nursery also belongs to the usufructuary, so that he also has the right to sell and to plant; but he is obliged to have the bed always prepared, and to renew it for the purpose of replanting the same, as a kind of implement to be employed for the benefit of the land; so that, when the usufruct is terminated it may be restored to the owner. 7He is likewise entitled to what this implement for the good of the land produces, but he has not the power to sell it; for if the usufruct of the land was bequeathed, and there is a field where the owner was accustomed to obtain stakes, osiers, or reeds for the use of the land, the usufruct of which was bequeathed; I am of the opinion that the usufructuary can make use of the same, provided he does not sell anything off of it, unless if it should happen that an usufruct was left to him of a clump of willows, or of the wood where the stakes were found, or of the bed of reeds; for then he can sell the same. Trebatius says that the usufructuary can cut stakes and reeds just as the owner of the land was accustomed to do, and can sell them, even though the former was not accustomed to do so, but to use them himself; as the condition of the usufructuary must be considered with reference to the amount to be used, and not to the manner of using it.

10Pomponius, On Sabinus, Book V. The usufructuary can take stakes for props from a thicket, and limbs from trees, and from a wood which is not a thicket he can take what he requires for his vineyard; provided he does not make the land any the less valuable.

11Paulus, Epitomes of the Digest of Alfenus, Book II. But where the trees are larger he cannot cut them down.

12Ulpianus, On Sabinus, Book XVII. Where trees are uprooted or overthrown by the force of the wind, Labeo says that the usufructuary can recover them for his own use, and that of his household, but he must not use the timber for firewood, if he has any other available for that purpose; and I think that this opinion is correct, otherwise, if all the land should suffer this misfortune, the usufructuary could remove all the trees. Labeo, however, thinks that he has a right to cut down as many trees as are necessary for the repair of the house; just as he can burn lime, or dig sand, or take anything else which is necessary for the building. 1Where the usufruct of a ship has been bequeathed, I think that it can be sent to sea, although the danger of shipwreck may be threatened; as a ship is constructed for the purpose of navigation. 2The usufructuary can either enjoy the property itself, or transfer the right of enjoyment to another, or he can leave, or sell the latter; for a man who leases and one who sells also uses. But where he transfers it to someone to be held on sufferance, or donates it, I think that he uses it, and therefore retains the usufruct of the same; and this was the opinion of Cassius and Pegasus, and Pomponius adopts it in the Fifth Book on Sabinus. For not only do I retain the usufruct, if I lease it, but also where another person who is transacting my business leases the usufruct, Julianus states in the Thirty-first Book, that I still retain it. Where, however, I do not lease it, but while I am absent, and ignorant of the fact, someone who transacts my business makes use of it, and enjoys it; I, nevertheless, retain the usufruct, because I have acquired a right of action on the ground of business transacted; and this opinion Pomponius approves in the Fifth Book. 3Pomponius is in doubt as to the following case, namely, where a fugitive slave in whom I have an usufruct stipulates for something with reference to my property, or receives something by delivery, do I retain the usufruct under these circumstances, on the ground that I am making use of him? He fully admits that I do retain it, for he says that very often we may not be using slaves at the time, but we retain the usufruct in them; for example, where a slave is ill, or is an infant, his services are of no value, or where he becomes decrepit through old age. We still retain the usufruct if we plow a field, although it is so barren that it yields no crop. Julianus, however, states in the Thirty-fifth Book of the Digest, that even where a fugitive slave does not stipulate for anything the usufruct is still retained; for he says, on the principle that possession is retained by the owner where the slave has fled, on the same principle the usufruct is also retained. 4He also discusses the following question, namely, where anyone acquires possession of the slave, must the usufruct be lost, just as the slave ceases to be in possession of the mere owner? And first he says that it may be held that the usufruct is lost, but even if it is, it must also be held that whatever the slave may have stipulated for with reference to the property of the usufructuary, within the time established by law, can be acquired by the usufructuary. From this it may be said to be inferred that even if the slave is in the possession of another person, the usufruct is not lost, provided the slave stipulated for something for me; and it makes but little difference whether he is in possession of the heir, or of someone else, to whom the estate has been sold, or to whom the mere ownership has been bequeathed, or even of a plunderer; for it will be sufficient for the usufruct to be retained if there is a desire to hold it, and the slave performs some act in behalf of the usufructuary; and this opinion seems to be reasonable. 5Ad Dig. 7,1,12,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 5.Julianus presents the following question in the Thirty-fifth Book of the Digest. If a thief plucks, or cuts off ripe fruit which is hanging upon a tree, who will be entitled to a suit against him for its recovery; the owner of the land, or the usufructuary? And he thinks that as fruit does not belong to the usufructuary unless it has been gathered by him, even though it should be separated from the land by another person, the proprietor has the better right to bring an action for its recovery; but the usufructuary has a right to an action for theft, for it was to his interest that the fruit should not have been removed. Marcellus, however, is influenced by the fact that if the usufructuary subsequently obtains possession of the fruit, it will perhaps become his; and if it does, under what rule will this happen, unless that, in the meantime, it belonged to the mere owner, for, as soon as the usufructuary secures it, it becomes his, just as where property is bequeathed under some condition, and, in the meantime, belongs to an heir, but when the condition is complied with, it passes to the legatee; for it is true that the mere owner is entitled to an action for its recovery. Where, however, the ownership is in suspense, as Julianus himself says in a case where the young of animals which are permitted to grow up have died; and where a slave subject to an usufruct received something by delivery for which the price had not yet been paid, but security had been given; it must be held that the right of action for its recovery remains in suspense, and that the ownership of the property is even more in abeyance.

13The Same, On Sabinus, Book XVIII. Where the usufruct in any property has been bequeathed, the owner can demand security for the property, and this can be done by order of court, for just as the usufructuary has a right to use and enjoyment, so also the mere owner has a right to be secure with reference to his property. This also applies to every usufruct, as Julianus states in the Thirty-eighth Book of the Digest. Where an usufruct has been bequeathed, an action for its recovery should not be granted to the usufructuary unless he gives security that he will make use of and enjoy it as would meet with the approval of a good citizen; and where there are several heirs who are charged with said usufruct, security must be given to every one of them individually. 1Therefore, when an action is brought with reference to an usufruct, not only what has been done will be decided, but also it will be determined how the usufruct should be enjoyed in the future. 2Ad Dig. 7,1,13,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 455, Noten 8, 9.The usufructuary is liable under the Lex Aquilia, for damage already committed, and can be held under the interdict Quod vi aut clam, as Julianus says; and it is certain that the usufructuary is also liable to the above-mentioned actions and to those of theft as well, just like any other party who has been guilty of an offence of this kind with reference to the property of another. Hence, having been asked what is the benefit of the Prætor promising an action, when one already existed under the Lex Aquilia; Julianus answered that because there were instances in which the Aquilian Action could not be brought, and therefore a judge was appointed in order that the party might comply with his decision; for where anyone does not break up a field, or does not plant vines, or allows aqueducts to be ruined he is not liable under the Lex Aquilia. The same principles are applicable where a party only has the use of property. 3When a controversy arises between two usufructuaries, Julianus says in the Thirty-eighth Book of the Digest, that it is perfectly just for an action like that in partition to be granted them; or that, by means of a stipulation, they should secure one another as to how they will make use of their usufructs; for why, Julianus asks, should the Prætor suffer them to proceed to the employment of armed force, when he is able to restrain them by means of his judicial authority? Celsus also approves this opinion in the Twentieth Book of the Digest, and I think that it is correct. 4An usufructuary cannot make the condition of the property worse, but he can improve it. If the usufruct of land was bequeathed, the usufructuary should not cut down fruit trees, or demolish buildings, or do anything else to the injury of the property. And if the estate should happen to be one used for enjoyment, and possesses pleasure gardens, lanes, or shady and pleasant walks laid out under trees which do not bear fruit, he should not cut them down for the purpose of making kitchen-gardens, or anything else designed to produce an income. 5Hence the question arose, whether the usufructuary himself can open stone quarries, or chalk, or sand-pits? I think that he can do so, if he does not use for that purpose any portion of the land required for something else. Therefore he can look for places for quarries and excavations of this kind, and he can work any mines of gold, silver, sulphur, copper, iron, or other minerals which the original proprietor opened; or he himself can open them, if this does not interfere with the cultivation of the soil. And if he should happen to obtain more income by doing this than he derives from the vineyards, plantations, or olive orchards, which are already there, he can, perhaps, cut these down since he is allowed to improve the property. 6Where, however, the operations begun by the usufructuary pollute the air of the land, or necessitate a great array of workmen, or gardeners, which is more than the mere owner can endure; he will not be considered as exercising his usufruct as a careful person should do. Nor can he erect a building on the land, except one which is necessary for the harvesting of crops. 7Where, however, the usufruct of a house was bequeathed, Nerva, the son, says that he can put in windows, and can also paint the walls, and add pictures, marbles, statuettes, and anything else which adorns a house; but he will not be permitted to change the rooms, throw them together, or separate them, or reverse the front and back entrances, or open places which are retired, or change the hall, or alter the pleasure gardens in any way; for he must take care of everything as he found it, without changing the arrangement of the building. Moreover, Nerva says that a party to whom the usufruct of a house has been bequeathed, cannot raise the height of the latter, even if no lights should be obscured by doing so, because the roof would be more likely to be disturbed; and this Labeo also holds with reference to the mere owner. Labeo also states that the usufructuary cannot obstruct the lights. 8Again, where the usufruct of a house is bequeathed, the usufructuary cannot rent rooms in it, nor can he divide it up into apartments, but there is no doubt that he can rent it, but he must do so as one residence; nor can he open a public bath there. When it is said that “He cannot rent rooms in it”; this must be understood to mean what are commonly designated lodgings for travellers, or shops for fullers. I am, however, of the opinion that where there is a bath in the house for the use of the household, and it is situated in some retired place, and among pleasant rooms, the usufructuary would not act properly, or in accordance with the judgment of a careful man, if he rented it as a public bath; any more than if he should rent the house as a place in which to keep beasts of burden, or where the house had a building which could be used as a stable and coach-house, he should rent it as a bakery.

14Paulus, On Sabinus, Book III. Even though he should receive much less income by doing so.

15Ulpianus, On Sabinus, Book XVIII. If, however, he should make any addition to the house, he cannot afterwards remove, or separate it; although it is clear that he can recover, as the owner, anything which has been detached. 1Where the usufruct which is bequeathed consists of slaves, he must not abuse them, but must employ them in accordance with their condition. For if he sends a copyist to the country, and compels him to carry a basket of lime, and makes an actor perform the duties of an attendant of a bath, or a singer act as a porter, or takes a slave from a wrestling arena, and employs him to clean out the vaults of water-closets, he will be considered to be making an improper use of the property. 2He must also furnish the slaves with sufficient food and clothing, in accordance with their rank and standing. 3Labeo states as a rule of general application that, in the case of movable property of every description, the usufructuary must observe a certain degree of moderation, so as not to spoil it by rough handling or violence, otherwise an action can be brought against him under the Lex Aquilia. 4Ad Dig. 7,1,15,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 206, Note 6.Where the usufruct of clothing is bequeathed, the right not having reference to quantity; it must be said that he ought to make use of it so that it may not be worn out, but he cannot hire it as a good citizen would not employ it in that manner. 5Hence, if the usufruct of theatrical costumes, or curtains, or some other similar articles is bequeathed, he must not use them anywhere but on the stage. It should be considered whether he can hire them, or not; and I think that this can be done, even though the testator was accustomed to lend these articles and not to hire them. Still, I am of the opinion that the usufructuary can hire theatrical costumes as well as such as are used at funerals. 6The mere owner of the property must not interfere with the usufructuary, so long as he does not use the article in such a way as to render its condition worse. With reference to some articles, a doubt arises where he forbids him to use them whether he can legally do so; as for instance, in the case of casks, where the usufruct of land has been bequeathed. Certain authorities hold that where the casks are buried in the ground their use may be prohibited; and they say the same of vats, barrels, jars, and bottles, and also of window panes, if the usufruct of a house is bequeathed. I am of the opinion, however, that everything belonging to the land and the house is included, where a contrary intention does not exist. 7The owner of the property cannot subject it to a servitude, nor can he permit one to be lost, but it is evident that he can acquire a servitude, even if the usufructuary is unwilling, as Julianus says. Consequently, according to the same rule, the usufructuary cannot acquire a servitude in the land, but he can preserve one, and if there is one, and it should be lost by the usufructuary not using it, he will be liable on this account. The owner cannot impose a servitude on the land even if the usufructuary consents,

16Paulus, On Sabinus, Book III. Unless the condition of the usufructuary should not become worse thereby; as for instance, where the owner grants the servitude to a neighbor that he himself shall not have the right to raise his house.

17Ulpianus, On Sabinus, Book III. He can make a place religious with the consent of the usufructuary, and this is permitted in favor of religion. Sometimes, however, the owner of the property alone can make the place religious; for suppose he buries the testator therein, when there is no other place so convenient for his burial. 1On the principle that the proprietor must not place the usufructuary in a worse condition, the question is frequently asked whether the owner of a slave can punish him? Aristo states in a note to Cassius, that he has a perfect right to punish him, provided he does so without malice; although the usufructuary cannot, by means of improper or unusual tasks, or by disfiguring him with scars, treat the slave so as to diminish the value of his services. 2The proprietor can also surrender the slave by way of reparation for damage committed by him, if he does so without malicious intent; since, a surrender of this kind does not legally terminate the usufruct, any more than usucaption of property which took place after the usufruct has been created. It is clear that an action for the recovery of the usufruct must be refused unless the amount appraised as damages is tendered by the usufructuary to the party who received the slave by way of reparation. 3If anyone should kill the slave, I have never had any doubt that the usufructuary will be entitled to a prætorian action in the same manner as under the Lex Aquilia.

18Paulus, On Sabinus, Book III. Where the usufruct which is bequeathed consists of a field, other trees must be substituted in the place of those which have died, and the latter will belong to the usufructuary.

19Pomponius, On Sabinus, Book V. Proculus thinks that the usufruct of a house can be bequeathed in such a way that a servitude may be imposed upon it in favor of some other house belonging to the estate, as follows: “If So-and-So promises my heir that he will not do anything by which certain buildings may be raised in height, then I give and bequeath to him the usufruct of said buildings”; or as follows: “I give and bequeath to So-and-So the usufruct of such-and-such a house, so long as it shall not be built higher than it now is”. 1Where trees are thrown down by the wind and the owner does not remove them, and the usufruct is rendered more inconvenient, thereby, or a roadway is obstructed; suit can be brought by the usufructuary against him in a proper action.

20Ulpianus, On Sabinus, Book XVIII. Where anyone makes a bequest in the following terms: “I give and bequeath the annual crops of the Cornelian Estate to Gaius Mævius”; this clause should be understood to mean the same as if the usufruct of the estate had been bequeathed.

21The Same, On Sabinus, Book XVII. Where the usufruct of a slave is bequeathed, whatever he earns by his own labor or by means of the property of the usufructuary belongs to the latter; whether the slave stipulates, or possession is delivered to him. But where a slave has been appointed an heir, or receives a legacy, Labeo makes a distinction dependent upon whose behalf he is appointed heir or receives the legacy.

22The Same, On Sabinus, Book XVIII. Moreover, when anything is given to a slave in whom someone else has the usufruct, the question arises what must be done in this instance? In all such cases, where anything is left or given to a slave to the advantage of the usufructuary, the slave acquires it for him, but where it is given for the benefit of the owner, he acquires it for the latter, and if it was given for the benefit of the slave himself, it is acquired by the owner; for we do not take into consideration where he who made the gift or left the legacy came to know the slave, or what service the slave performed to deserve it. But where a slave, in whom there is an usufruct, acquires something on account of complying with a condition, and it is established that the condition was inserted for the benefit of the usufructuary, it must be held that the latter is entitled to it; as the same rule applies in the case of a donatio mortis causa.

23The Same, On Sabinus, Book XVII. But just as the slave by stipulating acquires property for the usufructuary, in like manner, as Julianus states in the Thirtieth Book of the Digest, he can, by means of an informal contract, acquire an exception for the usufructuary; and also, by securing a release, he can obtain a discharge for him. 1We have previously stated that what is acquired by the labor of the slave belongs to the usufructuary; but it must be borne in mind that he can be forced to work; for Sabinus has given the opinion that the usufructuary can administer moderate punishment, and Cassius says in the Eighth Book of the Civil Law, that he cannot torture the slave, or scourge him.

24Paulus, On Sabinus, Book X. Where anyone about to give a present to an usufructuary, promises a slave, who is subject to the usufruct on his own stipulation, he will be bound to the usufructuary; for the reason that it is customary for a slave to be able to enter into a stipulation in favor of the usufructuary.

25Ulpianus, On Sabinus, Book XVIII. Where, however, a person stipulates for anything for himself or Stichus, a slave subject to an usufruct, with the intention that it shall, for the purpose of making him a gift, go to the usufructuary; it must be stated that if money is paid to the slave it will be acquired for the usufructuary. 1Sometimes, however, the question for whom this slave, subject to an usufruct, will acquire it, remains in abeyance; as, for instance, where the slave purchases another slave and receives him by delivery, and does not yet pay the purchase-money, but only furnishes security for it; in the meantime, the question arises to whom does the slave belong? Julianus states in the Thirty-fifth Book of the Digest, that the ownership of the slave is in abeyance, and the payment of the price will decide to whom he belongs; for if it is paid out of money of the usufructuary, the slave will belong to the latter by retroactive effect. The same rule applies where, for instance, the slave makes a stipulation for the payment of money; for the payment itself will determine for whose benefit the stipulation was entered into. Hence we see that the ownership is in abeyance until the price is paid. What then would be the case if the price is paid after the usufruct has terminated? Julianus says in the Thirty-fifth Book of the Digest, that it must still be considered from whence the price is to come; but Marcellus and Mauricianus think that where the usufruct is lost, the ownership will be acquired by the person to whom the property belongs. The opinion of Julian is, however, the more equitable one. If, however, the price should be paid out of property belonging to both parties, Julianus says that the ownership will belong to both; of course, in proportion to the amount paid by each. Suppose, however, the slave pays out of the property of both at the same time; as for instance, if he owed ten thousand sesterces as the price, and he paid ten thousand out of the funds of each; for which one does the slave actually acquire the property? If he pays by counting out the money, the important point is who was the owner of the sum which is first paid, for the other party can bring an action to recover that which was paid subsequently; or if the money was already expended by the individual who received it, a personal action can be brought for its recovery. But where the slave paid the entire amount in a sack, he who received it does not acquire the property, and therefore the ownership is not held to be acquired by anyone, because where the slave pays more than the price he does not transfer the money to the receiver. 2Where such a slave leases his own services and stipulates for a certain sum to be paid every year, this stipulation, during the time which the usufruct continues, will enure to the benefit of the usufructuary, but the benefit of the stipulation will enure to the owner during the ensuing year, although in the beginning it was for the benefit of the usufructuary; notwithstanding it is not customary for a stipulation when once obtained for the benefit of anyone, to pass to another, unless to his heir or to a party by whom he is arrogated. Hence, where an usufruct is bequeathed for a number of years, and the slave leases his services and stipulates, as is above stated, as often as the usufruct is lost by the change of condition of the usufructuary, and is subsequently restored, the stipulation will pass from one to the other, and after having gone to the heir, it will return to the usufructuary. 3It may be questioned whether what cannot be acquired by the usufructuary can be acquired by the owner? Julianus, in the Thirty-fifth Book of the Digest, states that what cannot be acquired by the usufructuary belongs to the owner. He also states that where a slave stipulates with reference to the property of the usufructuary for the proprietor, expressly, or by his order, he acquires for the latter; but, on the other hand, if he stipulates for the usufructuary, not on account of the property of the latter, nor in consideration of his own labor, the stipulation is void. 4Where a slave subject to an usufruct stipulates for a transfer of said usufruct, either without mentioning anyone or expressly for his owner, he makes the acquisition for the latter; just as in the case of a slave held in common by two parties, who, in a stipulation contracts for one of his owners for property which already belongs to him, the stipulation is not valid; because where any party stipulates for what belongs to him the stipulation is void, but where the slave stipulates for the other owner, he acquires all of said property for him. 5Julianus also states in the same Book, that where an usufructuary leases the services of a slave to the latter, the contract is inoperative for he says if anyone stipulates with me for my own property, the stipulation is void; for this is no more operative than where a slave belonging to another, who is serving me in good faith, does the same thing, he will acquire the property for his owner. In like manner, he says, if he rents my property from me, the usufructuary, this will not render me liable. The general principle he establishes is, that where anyone making a stipulation with another would acquire property for me, if he makes a stipulation with me his act is void; unless, indeed, Julianus adds, he stipulates with me or leases from me especially for the benefit of his owner. 6If you suppose the case of two usufructuaries, and the slave makes a stipulation with reference to the property of one of them, the question arises whether he is entitled to all of it or only the share which he has in the usufruct? This case is the same which is treated of by Scævola in the Second Book of Questions, with respect to two bona fide possessors; and he says that it is generally held and is consonant with reason, that where a stipulation was made with reference to the property of one of them, then part of it is only obtained for him, and part for the owner. But where the stipulation is expressly made, there should be no doubt, if the name of the party is mentioned, that he will obtain the whole of it. He says that the rule is the same where the slave stipulates by order of the party, as an order is understood to take the place of a name. The same rule also applies to the case of usufructuaries; so that wherever an usufructuary does not acquire the whole of the property, it will be acquired by the mere proprietor, for we have already shown that he can obtain it by a title having reference to the property of the usufructuary. 7As we have previously stated that the usufructuary can acquire property through what he owns, or by the labors of the slave; it should be taken into consideration whether this is applicable merely where the usufruct is created by means of a bequest, or where it is obtained by delivery, stipulation, or in any other way. The opinion of Pegasus is the correct one, which Julianus has followed in the Sixteenth Book, namely: that it is in every instance acquired by the usufructuary.

26Paulus, On Sabinus, Book III. Whenever a slave subject to a usufruct leases his services, and before the time of the lease expires, the usufruct terminates, the time which remains will belong to the proprietor. But where, from the beginning, the slave stipulates for a specified sum in consideration of the performance of certain services, and the usufructuary suffers a loss of civil rights, the same rule applies.

27Ulpianus, On Sabinus, Book XVIII. Where a testator leaves fruit, which was already ripe, hanging upon a tree, the usufructuary will be entitled to it if he takes it from the tree upon the day when his legacy vests; for even standing crops belong to the usufructuary. 1Where the owner was accustomed to use shops for the sale of his merchandise or for conducting his business, then the usufructuary will be allowed to lease them even for a sale of different merchandise; and this precaution alone shall be observed, namely, that the usufructuary must not make an unusual use of the property, or employ the usufruct in a way which will insult or injure the owner. 2When the usufruct of a slave is bequeathed, and the testator was accustomed to employ him in different ways, and the usufructuary educates him or teaches him some trade; he can avail himself of the trade or skill obtained in this manner. 3Where anything is due as taxes for constructing a sewer, or must be paid for the channel of a water-course which traverses the land, the burden of the same shall be assumed by the usufructuary; and where anything is to be paid for the maintenance of a highway, I think that this expense also must be borne by the usufructuary. Therefore, where any contribution of crops is levied on account of the passage of an army, or due to a municipality, since possessors of property are accustomed to deliver to the municipal authorities a certain portion of their crops at a low price, and also to pay taxes to the Treasury, all the aforesaid burdens must be assumed by the usufructuary. 4Where any kind of servitude is imposed upon land, the usufructuary will be compelled to tolerate it, and therefore, if a servitude is owing as the result of a stipulation, I think that the same rule will apply. 5Where, however, a slave has been sold, and the purchaser is forbidden under a penalty from employing him for certain purposes, if the usufruct in the slave is bequeathed, must the usufructuary comply with these conditions? I think that he must comply with them; otherwise, he will not use and enjoy his right in a way that would be approved by a good citizen.

28Pomponius, On Sabinus, Book V. An usufruct in old gold and silver coins which are usually ordinarily used for ornaments can be bequeathed.

29Ulpianus, On Sabinus, Book XVIII. Celsus in the Thirty-second Book, and Julianus in the Sixty-first Book of the Digest, state that the usufruct in an entire estate can be bequeathed, provided it does not exceed three-fourths of the appraised value; and this is the better opinion.

30Ad Dig. 7,1,30Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 169, Note 6.Paulus, On Sabinus, Book III. Where a person who has two houses bequeaths the usufruct of one of them, Marcellus says that the heir can shut off the lights of one of them by raising the height of the other; since the house could be inhabited even if it was darkened. This must be regulated to such an extent that the entire house must not be darkened, but must have a certain amount of light which will be sufficient for the occupants.

31The Same, On Sabinus, Book X. The phrase, “Based on the property of the usufructuary”, must be understood to refer to anything which the usufructuary may have presented or granted to the slave, or where the slave gained anything through the transaction of his business.

32Pomponius, On Sabinus, Book XXXIII. Where a person transfers a house, which is the only one he has, or a tract of land, he can reserve a servitude which is personal and not prædial; as for instance, the use or usufruct. But if he makes a reservation of pasturage or the right of residence, it is valid; as profits are obtained from the pasturage of many tracts of woodland. Where the right of residence is reserved, whether this is for a certain time or until the death of the person who reserves it, it is held to be a reservation of the use.

33Papinianus, Questions, Book XVII. Where the usufruct is bequeathed to Titius and the mere ownership to Mævius, and, during the lifetime of the testator Titius dies, nothing is left in the hands of the party appointed heir; and Neratius also gave this as his opinion. 1It is established that in certain instances the usufruct can not be regarded as a part of the property; and, therefore, where suit is brought for a portion of the land or of the usufruct and the defendant gains the case, and afterwards an action for recovery is brought for another part which has been obtained by accretion, Julianus says that in the action for the property on the ground of a previous decision rendered, an exception can be pleaded; but in the action for the usufruct it cannot be interposed, since the portion of the land which was added, for instance by alluvion, would belong to the original part, but the increased usufruct would accrue to the person.

34Julianus, Digest, Book XXXV. Whenever an usufruct is bequeathed to two persons in such terms that “they are to use and enjoy the same during alternate years”; as if, for instance, the bequest had been made to “Titius and Mævius”; it can be said that it was made for the first year to Titius, and for the second to Mævius. Where, however, there are two parties of the same name, and the terms of the bequest are as follows: “I give the usufruct to the two Titii, for alternate years”; unless both of them agree which one shall have the use of it first, they will interfere with one another. But if Titius acquires the ownership during a year in which he enjoyed the usufruct, he will not have the bequest in the meantime, but the usufruct will belong to Mævius for alternate years; and if Titius alienates the property, he will still be entitled to his usufruct; because, even if the usufruct was bequeathed to me under some condition, and, in the meantime, I acquired the ownership from the heir but while the condition was still unfulfilled, I alienated the property, I should be permitted to obtain the legacy. 1If you bequeath the usufruct of a tract of land to your tenant, he can bring an action to recover said usufruct, and he can bring suit against your heir on the ground of the lease; by which means he will avoid paying rent, and will recover the expenses which he incurred by cultivating the land. 2With reference to the point whether the usufruct of an entire estate or that of certain articles is bequeathed, I think that it is applicable where, if a house is burned down, an action for the usufruct of it—if it be the object of a special bequest—cannot be brought; but where the usufruct of the entire property was left, an action for the usufruct of the ground will lie; since anyone who bequeaths the usufruct of his property is held to include not only that of things of a certain kind which are there, but also that of his entire possessions, and the ground on which the house stood is a part of these.

35The Same, On Urseius Ferox, Book I. Where an usufruct has been bequeathed, and the person appointed heir purposely delays entering upon the estate in order that the acquisition of the legacy may be deferred; this will have to be accounted for; as was held by Sabinus. 1The usufruct of a slave was bequeathed to me, and when I ceased to use and enjoy it, it was directed that he should be free; and I subsequently obtained from the heir an estimated equivalent of the legacy in money. Sabinus was of the opinion that the slave will not for that reason become free; for it may be held that I am enjoying the usufruct in him, since I have obtained other property in his stead, and the condition of his freedom remains the same, so that he will become free at my death, or if my civil condition is changed.

36Africanus, Questions, Book V. A testator bequeathed the usufruct of a plot of land and erected a house upon it, and during his lifetime it was demolished or burned down; it was held that the usufruct could be demanded. On the other hand, the same rule would not apply if the usufruct of the house had been bequeathed, and the land afterwards was built upon. The case would be the same if the usufruct in certain cups was bequeathed, and they were afterwards melted into a mass, and were a second time fashioned into cups; for although their former condition as cups was restored, they were not the same as those in which the usufruct was bequeathed. 1I stipulated with Titius with reference to the Cornelian Estate, the usufruct therein being reserved; Titius then died, and it was asked what his heir was required to deliver to me? The answer was that the principal point had reference to the intention with which the usufruct was reserved, for if it was agreed in fact that the usufruct should be established merely in the person of someone, the heir must transfer the bare ownership; but if it was intended that the usufruct should be withheld for the promisor alone, his heir must transfer the ownership without any restriction. That this is true is more clearly apparent in the case of a legacy, for if an heir who was charged with the bequest of mere ownership, after reservation of the usufruct, should die before proceedings have been instituted with reference to the will, there is still less reason for doubt that the heir will be obliged to transfer complete ownership. The same rule applies where the legacy is bequeathed under a condition and the heir dies pending its fulfillment. 2The usufruct of a slave was bequeathed to Titius, and before it had been transferred by the heir, who was intentionally in default, the slave died. No other conclusion could be arrived at than that the liability of the heir is in proportion to the amount of the interest of the legatee that there should have been no delay, so that the value of the usufruct should be appraised from the date of the default to the time when the slave died. The result of this also would be that if Titius himself should die, there would also have to be paid to his heir a sum equal to the value of the usufruct from the time when the default began to the day of his death.

37The Same, Questions, Book VII. The question arose, if I stipulated with you for you to give me an usufruct for the next ten years, and you neglected to give it, and five years elapsed; what would be the law? Moreover, if I stipulated with you to give me the services of Stichus for the next ten years, and five years pass, as above stated, what then? The answer was that suit could properly be brought for both the usufruct and the services of the slave for the term that you permitted to elapse without giving them.

38Marcianus, Institutes, Book III. The usufructuary is not considered to make use of anything, where neither he nor anyone else in his behalf does so; as, for instance, where a party purchased or leased an usufruct or received it as a gift, or transacted the business of the usufructuary. It is evident that a distinction should be made here; for if I sell an usufruct, then, even though the purchaser does not use the property, I am held to still retain the usufruct:

39Gaius, On the Provincial Edict, Book VII. Because he who enjoys the purchase-money is none the less considered as possessing the usufruct than one who enjoys and uses the actual property:

40Marcianus, Institutes, Book III. But if I make a present of the usufruct, I no longer retain it, unless the person to whom it was given makes use of it.

41The Same, Institutes, Book VII. It is still more evident that the usufruct of a statue or a picture can be bequeathed, because articles of this kind have a certain utility if they are deposited in a proper place. 1Although there are certain estates of such a description that we expend more upon them than we receive from them, nevertheless, the usufruct in them can be bequeathed.

42Florentinus, Institutes, Book XI. Where a bequest of the use of some property is left to one man, and the yield of it to another, the usufructuary will obtain whatever remains after the demands of the party entitled to the use are satisfied, but he himself will have a certain amount of use for the purpose of enjoyment. 1It makes a difference whether the usufruct of property or the value of the same is bequeathed to you; for if the usufruct of the property is left to you, any article which was bequeathed to you in addition, must be deducted from it, and you will be entitled to an usufruct in whatever remains; but where the usufruct of the value in money is left you, this also will be estimated, because it is an additional bequest, for by bequeathing the same property several times the testator does not increase the legacy; but where one specific article has been bequeathed, we can increase the legacy by bequeathing the estimated value of it also.

43Ulpianus, Rules, Book VII. The usufruct of only a portion of an estate can be bequeathed, and if it is not expressly stated what portion, half the estate is understood to be meant.

44Neratius, Parchments, Book III. An usufructuary is not permitted to put fresh plaster on walls which are rough; because, even though by improving the house he would render the condition of the owner better, he cannot do this through any right of his own; for it is one thing for him to take care of what he has received, and another to do something new.

45Gaius, On the Provincial Edict, Book VII. Just as the expenses of the maintenance of a slave whose usufruct belongs to anyone must be paid by the latter; so, also, it is evident that the expenses of his illness must naturally be borne by him.

46Paulus, On Plautius, Book IX. Where a stranger is appointed heir by will, and an emancipated son is passed over, and the ownership of the estate is bequeathed to the mother of the deceased, the usufruct being withheld; then, if suit is brought for the possession of the estate in opposition to the will, the entire ownership, on the ground of filial duty toward the mother, must be delivered to her. 1Where a testator directs that his heir shall repair a house the usufruct of which he has bequeathed, the usufructuary can bring suit under the will to compel the heir to repair it.

47Pomponius, On Plautius, Book V. If, however, the heir should not make these repairs, and on this account the usufructuary should not be able to enjoy the property; the heir of the usufructuary will be entitled to an action on this ground for an amount of damages equal to the difference it would have made to the usufructuary if the heir had not failed to make said repairs; even though the usufruct has been terminated by the death of the usufructuary.

48Paulus, On Plautius, Book IX. Ad Dig. 7,1,48 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.If, while the usufructuary is absent, the heir makes the repairs as a person having charge of his business, he will be entitled to an action against the usufructuary on the ground of business transacted, even though the heir was looking to his own future benefit. Where, however, the usufructuary is ready to relinquish the usufruct, he is not required to make repairs, and is released from the suit based on business transacted. 1Where a thicket is cut down, even though this is done at an unsuitable season of the year, it is considered as part of the yield of the land; just as olives which are gathered before they are ripe, and grass cut before the proper time are also considered to be a part of the crops.

49Pomponius, On Plautius, Book VII. Where an usufruct is bequeathed to me and to you at the charge of Sempronius and Mucius, heirs of the testator, I will be entitled to a fourth part from the share of Sempronius and another fourth part from the share of Mucius; and you, in like manner, will be entitled to two-fourths taken from their respective shares.

50Paulus, On Vitellius, Book III. Titius left the Tusculan Estate to Mævius, and appointed him a trustee for the transfer to Titia of the usufruct of half of the said estate. Mævius rebuilt a house which was ruined by age, and which was required for the collection and preservation of the crops. The question then arose, whether Titia was obliged to assume part of the expense in proportion to her usufruct? Scævola answered that if it was necessary to rebuild the house before the usufruct was transferred, Mævius would not be compelled to deliver it, unless an action for the expense was allowed.

51Modestinus, Differences, Book IX. It is understood that the bequest of an usufruct to Titius “when he dies”, is void; as it has reference to the time when it must cease to belong to the party in question.

52The Same, Rules, Book IX. Where an usufruct is left by will on condition of paying the taxes on the property, there is no doubt that the usufructuary must pay them; unless it is proved that the testator provided expressly by means of a trust that they should also be paid by the heir.

53Javolenus, Epistles, Book II. Where the usufruct of a house is bequeathed as long as any part of said house remains, the legatee will be entitled to an usufruct in the entire ground.

54The Same, Epistles, Book III. The usufruct of certain land was conditionally bequeathed to Titius, you being charged with the same as heir, and you sold and delivered the said land to me after reserving the usufruct. I ask, if the condition was not fulfilled, or if it should be and the usufruct should terminate, to whom would it belong? The answer was, I understand, that your question has reference to the usufruct which was bequeathed; and therefore, if the condition on which the legacy was dependent was fulfilled, there is no doubt that the usufruct will belong to the legatee; and if, by any accident, it should be lost to him, it will revert to the ownership of the estate. Where, however, the condition is not fulfilled, the usufruct will belong to the heir, for all the rules which have relation to the heir are carried out, just as those that pertain to the loss of an usufruct are ordinarily observed. But, in a sale of this kind, what has been agreed upon between the purchaser and the vendor must be considered; so that if it is apparent that the usufruct was reserved on account of the legacy, even though the condition was not fulfilled, it should be restored by the vendor to the purchaser.

55Pomponius, On Quintus Mucius, Book XXVI. If only the use of an infant slave should be bequeathed, even though in the meantime no employment be made of his services, still, as soon as the child passes the age of infancy, it begins to be operative.

56Gaius, On the Provincial Edict, Book XVII. The question has been raised whether an action on account of an usufruct should be granted a municipality? In this instance there seems to be danger that the usufruct may become perpetual, because it could not be lost by death, nor easily by change of civil condition; for which reason the ownership would be worthless, as the usufruct would always be separate from it. It, nevertheless, has been established that an action should be granted. Whence another doubt arises, that is to say, how long a municipality should be protected in the enjoyment of an usufruct? It has been settled that it will be protected for a hundred years, because this is the term of the longest life of man.

57Papinianus, Opinions, Book VII. The owner of an estate left to an usufructuary by will the interest which the latter had therein by way of usufruct, and this estate the legatee, after having had possession of it for a time, was compelled to surrender to the son of the testator, who had successfully conducted a case of inofficious testament; and it was apparent from what subsequently occurred that the right of usufruct remained unimpaired. 1Where the crops from certain tracts of land were left under a trust for the maintenance of freedom, and any of the parties who are entitled to the same die; the profits of their shares revert from them to the mere owner of the land.

58Scævola, Opinions, Book III. A woman who had an usufruct died during the month of December, and all the crops which were obtained from the land having already been removed by the tenants, in the month of October, the question arose whether rent should be paid to the heir of the usufructuary, although she died before the Kalends of March, when the rent became due; or whether it ought to be divided between the heir of the usufructuary and the municipality to which the ownership was bequeathed? I answered that the municipality was not entitled to any action against the tenant; but, according to what had been stated, the heir of the usufructuary would have a right to collect the entire rent on the day when it becomes due. 1“I give and bequeath to Sempronius one sixth part of the crops of cabbage and leeks which I have in the field of the Farrarii”. The question is asked whether an usufruct seems to be bequeathed by these words? My answer was, that an usufruct was not bequeathed, but that the particular part of the crop gathered and which was mentioned in the bequest, was. 2The question also arose, if this was not an usufruct, whether the testator did not bequeath the sixth part of the crops which was gathered every year? I answered that it must be considered to have been left every year, unless the contrary was expressly proved by the heir.

59Paulus, Opinions, Book III. Where trees are overthrown by the force of a storm without any negligence of the usufructuary, it has been decided that he is not required to replace them. 1Whatever is grown upon the land or is gathered therefrom belongs to the usufructuary, as well as the rent of fields already leased, if these things are expressly included. But as in the case of a sale, unless the rents are expressly reserved, the usufructuary can eject the lessee. 2Whatever is obtained from the cutting of reeds or stakes belongs to the usufructuary, wherever it has been customary to consider this a portion of the income of the land.

60The Same, Opinions, Book V. The usufructuary of any description of land, if interfered with in his enjoyment of the same, or ejected, can bring suit for the restitution of everything which was seized at the same time; but if, in the meanwhile, the usufruct should be terminated by any accident, a prætorian action will be granted for the recovery of any crops which may have been previously gathered. 1Where land, the usufruct of which is sued for, is not in the possession of the owner, an action will be granted. Therefore, if there is a dispute between two parties with reference to the ownership of the land, the usufructuary is, nevertheless, entitled to occupy the premises; and security must be given him by the possession, if his own right is disputed, “That he to whom the usufruct was bequeathed will not be prevented from enjoying the same, as long as he is engaged in establishing his title”. If, however, the right of the usufructuary himself is disputed, his usufruct will remain in abeyance; but the owner of the land must furnish him with security to return to him any of the crops which the latter may have gathered from it, or, if he refuses to do so, the usufructuary will be permitted to enjoy the property.

61Neratius, Opinions, Book II. An usufructuary cannot attach a new gutter to a wall; and where a building is not completed, it has been decided that a usufructuary cannot finish it, even if he is unable to make use of that portion of it without doing so. And indeed, it is considered that he has not even an usufruct in said building; unless, when it was created or bequeathed, it was expressly added that he could do either of the two above mentioned things.

62Ad Dig. 7,1,62Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 184, Note 5.Tryphoninus, Disputations, Book VII. It is very properly held that an usufructuary has a right to hunt in the woods or on the mountains of the property in which he has the usufruct; and where he killed a wild-boar or a stag, he does not take anything belonging to the owner of the land, but he renders what he acquired his either by the Civil Law or in the Law of Nations. 1Where wild animals were kept in enclosures, when an usufruct becomes operative the usufructuary can make use of them, but he cannot kill them; but if, in the beginning, he encloses them by his own effort, and they are caught in traps by him, are they lawfully the property of the usufructuary? It is most convenient, however, on account of the difficult distinction that would arise as to the uncertain rights of the usufructuary with reference to different animals, to hold that it would be sufficient, at the termination of the usufruct, to deliver to the owner of the property the same number of different kinds of animals which existed at the time the usufruct became operative.

63Paulus, On Private Law. We can transfer to others what is not our own; for example, where a man has land, even though he has not the usufruct, still he can grant an usufruct to another party.

64Ad Dig. 7,1,64Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.Ulpianus, On the Edict, Book LI. Where an usufructuary is ready to relinquish his usufruct, he cannot be compelled to repair the house, even in instances where this would ordinarily be required of the usufructuary. However, after issue has been joined, and the usufructuary is ready to relinquish the usufruct, it must be held that he should be released from liability by the Court.

65Ad Dig. 7,1,65Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.Pomponius, On Plautius, Book V. But as the usufructuary is obliged to repair anything which has been injured by his own act, or by that of any of his family; he should not be released, even though he is ready to relinquish the usufruct; for he himself is obliged to do everything that the careful head of a household would do in his own house. 1An heir is no more compelled to repair property which a testator left ruined by age, than he would be if the testator had left anyone the ownership of the same.

66Paulus, On the Edict, Book XLVII. An action can not only be brought against an usufructuary under the Lex Aquilia, but he is also liable to one for demoralizing a slave as well as for injury, where he depreciated the value of the slave by torturing him.

67Julianus, On Minicius, Book I. Anyone to whom the usufruct has been bequeathed can sell the same to a stranger, even without the consent of the heir.

68Ulpianus, On Sabinus, Book XVII. The question was raised in ancient times whether the issue of a female slave belonged to the usufructuary? The opinion of Brutus prevailed, namely, that the usufructuary had no right to it, as one human being cannot be considered as the product of another; and for this reason the usufructuary cannot be entitled to a usufruct in the same. If, however, the usufruct was left in the child before it was born, would he be entitled to it? The answer is that since offspring can be bequeathed, the usufruct of it can be also. 1Sabinus and Cassius are of the opinion that the increase of cattle belongs to the usufructuary. 2Ad Dig. 7,1,68,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.It is evident that the person to whom the usufruct of a flock or a herd is bequeathed, must make up any loss out of the increase, that is to say, replace those which have died,

69Ad Dig. 7,1,69Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 137, Note 8.Pomponius, On Sabinus, Book V. Or to supply others instead of such as are worthless; and the latter, after the substitution, become the property of the usufructuary, to avoid the owner from profiting by the entire number. And as those which are replaced at once belong to the owner, so also the former ones cease to belong to him, according to the natural law of production; for otherwise the increase belongs to the usufructuary, and when he replaces it, it ceases to do so.

70Ulpianus, On Sabinus, Book XVII. What then must be done if the usufructuary does not act as above stated, and does not replace the cattle? Gaius Cassius says in the Tenth Book of the Civil Law, that he is liable to the owner. 1In the meantime, however, while they are being reared and those which are dead are being replaced, the question arises, to whom does the increase belong? Julianus in the Thirty-fifth Book of the Digest holds that the ownership is in abeyance; for if they are used to replace others they belong to the proprietor; but, if not, they belong to the usufructuary; which opinion is the correct one. 2In accordance with this, if the young die, it will be at the risk of the usufructuary and not at that of the owner, and it will be necessary for him to provide others. Whence Gaius Cassius states in the Eighth Book, that the flesh of any dead young animal belongs to the usufructuary. 3Where it is stated that the usufructuary must provide others; this is only true where the usufruct of a flock, a herd, or a stud of horses, that is to say, of an entire number, has been bequeathed; for where only certain heads of the same are left, there will be nothing for him to replace. 4Moreover, suppose that, at the time when the young animals are born, nothing has occurred by which he was required to replace some of them, but after their birth this became necessary; it must be considered whether he should replace them from those born last, or those born previously? I think the better opinion to be, that those which are born when the flock is complete belong to the usufructuary; and that he will only lose by reason of some subsequent injury to the flock. 5Replacement is a matter of fact, and Julianus very properly says that it means to separate, set apart, and to make a certain division; because the ownership of those which are set aside is in the proprietor.

71Marcellus, Digest, Book XVII. Where anyone builds a house on a lot in which some other person has the usufruct, and the house is removed before the expiration of the time within which the usufruct will be terminated, the usufruct must be restored; in accordance with the opinion of the ancient authorities.

72Ulpianus, On Sabinus, Book XVII. Where the owner of the mere property bequeaths an usufruct, what Marcianus stated in the Third Book of Questions, on Trusts, is correct, namely: that the bequest is valid; and if the usufruct should happen to be merged in the property during the life of the testator, or before the estate is entered upon, it will belong to the legatee. Marcianus goes even further, for he holds that if the usufruct was merged after the estate had been entered upon, it becomes legally vested and belongs to the legatee.

73Pomponius, On Sabinus, Book V. Where the usufruct of unoccupied ground is bequeathed to me, I can build a hut there for the protection of personal property on the said ground.

74Gaius, On the Provincial Edict, Book VII. Where an usufruct is bequeathed to your slave Stichus, and to my slave Pamphilus, such a bequest is the same as if it had been made to me and to you; and therefore there is no doubt that it belongs to us equally.