1Ulpianus, On Sabinus, Book XVII. It is established that an usufruct is not only lost by forfeiture of civil rights, but that the right of action based on usufruct is also lost; and it makes little difference whether the usufruct was created by law or with the assistance of the Prætor. Hence, where an usufruct is delivered, or is created not strictly by law but through a perpetual lease, or occupancy of the surface of land, it is lost with the forfeiture of civil rights. 1Thus usufruct can be lost by a forfeiture of civil rights only where it has been already created; but if anyone forfeits his civil rights before the estate is entered upon, or before the usufruct has vested, it is held that it is not lost. 2Where an estate in land is devised to you from a certain day, and you are asked to deliver the usufruct to me, it should be considered whether, if I have lost my civil rights before the day mentioned in the devise to you, my usufruct is not safe; as the loss of civil rights must occur before the usufruct vests, which may be said to be a liberal interpretation. 3To such an extent is it a fact that the loss of civil rights not only destroys an usufruct which has already been created, but if an usufruct has been bequeathed for every year, month, or day, that only is lost which is running at the time; and where, for instance, it is bequeathed for separate years, the usufruct for that year only is lost, and if for separate months, that month, and if for separate days, that day.

2Papinianus, Questions, Book XVII. Where an usufruct is left to two parties separately for alternate years, the property exists for years without the right of enjoyment; while, if it is left to one legatee alone to whom the usufruct for every other year is bequeathed, the entire property will vest in the heir during the time when the right of enjoyment does not belong to the legatee. Where, however, one of the two parties dies, the right to the property will be complete for the odd years, for there can be no accrual to the other party) since each one had his own times for the enjoyment of the entire usufruct without the other being associated with him. 1Where not death, but a loss of civil rights takes place, then, because there are several bequests, the usufruct only for that year will be lost, provided the party had the right of usufruct merely for that time; and this principle should be upheld in the case of a legatee who received the usufruct for a certain number of separate years, so that the mention of the terms has the effect of a renewal of the right. 2Where an usufruct is bequeathed to certain persons for alternate years, and they agree to enjoy it during the same year, they interfere with one another, since it does not seem to have been intended that they should enjoy it together; for it makes a great deal of difference whether an usufruct is bequeathed to two persons together for alternate years, (as then it cannot run longer than the first year, any more than if it had been bequeathed in the same way to one of them) or it is bequeathed to separate persons for alternate years; for if they wish to enjoy it together they will either interfere with one another, on account of this being contrary to the intention of the testator; or, if this is not the case, the usufruct for every other year will not be enjoyed by anyone.

3Ulpianus, On Sabinus, Book XVII. Just as an usufruct can be bequeathed for separate years, so also it can again be bequeathed if lost by forfeiture of civil rights, as where the addition is made: “Whenever So-and-So loses his civil rights I bequeath to him”; or, as follows: “Whenever it shall be lost”; and then, if it is lost by the forfeiture of civil rights, it will be considered to have been renewed. Wherefore, it has been discussed, where an usufruct is bequeathed to anyone for as long as he lives, whether it must be held to be renewed as often as it is lost? Marcianus adopts this opinion, and I think that it must be held to be renewed; therefore if an usufruct is bequeathed for a certain time, as for instance, for ten years, the same principle will apply. 1The question arises with reference to the renewal which takes place after an usufruct has been lost by forfeiture of civil rights, whether the right of accrual remains unimpaired; for example, where an usufruct was bequeathed to Titius and Mævius, and Titius, having lost his civil rights, the testator bequeathed him the usufruct a second time; and inquiry was made if Titius should again receive the usufruct by renewal whether the right of accrual would remain unimpaired between the parties? Papinianus states in the Seventeenth Book of Questions that it does remain unimpaired, just as if some other person had been substituted for Titius in the enjoyment of the usufruct; for these parties are held to be conjoined in fact, if not in words. 2Ad Dig. 7,4,3,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 645, Note 4.Papinianus also asks if the testator, after having left the usufruct to Titius and Mævius, in the second bequest of the same, did not leave the entire usufruct but only a portion of it to Titius, would they be considered to be conjoined? He says in reply, that if Titius should lose his share, it would all accrue to his associate; but if Mævius should lose his, the whole would not accrue, but half would belong to him, and half would revert to the property. This opinion is reasonable, for it cannot be held that the ground on which a person loses the usufruct and takes it back will entitle him to any accrual from the usufruct; as it is our opinion that he who loses an usufruct can gain nothing by accrual out of what he loses. 3There is no doubt whatever that an usufruct can also be lost by death; since the right of enjoyment is extinguished by death, just as any other right which attaches to the person.

4Marcianus, Institutes, Book III. Where the legatee of an usufruct is requested to deliver it to another person, the Prætor should provide that, if it is lost, it should rather affect the person of the trustee than that of the legatee.

5Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,4,5 pr.ROHGE, Bd. 12 (1874), Nr. 106, S. 360: Verträge zu Gunsten eines Contrahenten und eines noch unbestimmten Personenkreises. Verträge über das Aufführungsrecht des contrahirenden Theaterdirectors und dessen Nachfolger.An usufruct which has been bequeathed may be renewed without reference to the way in which it was lost, provided that it was not lost by death, unless the testator, under such circumstances, bequeathed it to the heirs of the usufructuary. 1Where anyone alienates only the usufruct in a slave by whom he has acquired an usufruct, there is no doubt that he retains the usufruct which was acquired through him. 2It is established that an usufruct is terminated by a change of the property to which it belongs; for example, if a bequest was made to me of the usufruct in a house, and the house has been demolished, or burned, the usufruct is unquestionably extinguished. Does this also apply to the ground? It is absolutely certain that where the house is burned down, no usufruct remains in either the ground or the materials; and Julianus is of this opinion. 3Where the usufruct of the ground is bequeathed, and a house is built upon the latter, it is established that the property is changed, and that the usufruct is extinguished. It is clear that if the mere owner built it, he will be liable to an action on the will, or to one on the ground of fraud.

6Pomponius, On Sabinus, Book V. And the usufructuary will be entitled also to the interdict Quod vi aut clam;

7Julianus, Digest, Book XXXV. Unless the building having been removed, the owner grants me an usufruct in the ground; that is where the time had elapsed by which the usufruct was lost.

8Ulpianus, On Sabinus, Book XVII. Where the usufruct of an estate is bequeathed, if the house should be destroyed the usufruct will not be extinguished, because the house is an accession to the land; any more than if trees were to fall.

9Paulus, On Sabinus, Book III. But I could still use and enjoy the ground on which the house had stood.

10Ulpianus, On Sabinus, Book XVII. What would be the case, however, if the land was an accession to the house? Let us see whether, in this instance, the usufruct of the land would not also be extinguished, and we must hold the same opinion, namely, that it would not be extinguished. 1The usufruct is extinguished not only where the building has been levelled with the ground, but also where, after having demolished the house, the testator erects a new one in its place; for it is evident that if he repairs certain portions of it we must establish a different rule, even though the entire house should be renewed. 2Where the usufruct of a field or an enclosure is bequeathed, and it is inundated so as to become a pond, or a swamp, the usufruct will undoubtedly be extinguished. 3Moreover, where the usufruct of a pond is bequeathed, and it dries up so that it becomes a field; the property being changed, the usufruct is extinguished. 4I do not think, however, where the usufruct of tillable land is bequeathed and vineyards are planted thereon, or vice versa, that the usufruct is extinguished. It is certain, however, where the usufruct of a wood is bequeathed, and the trees are cut down, and seed sowed upon the land, that the usufruct is extinguished. 5Where the usufruct of a mass of metal is bequeathed, and vessels are made out of it, or vice versa, Cassius, as quoted by Urseius, says that the usufruct is terminated, and I think this opinion to be the correct one. 6Thus, where an ornament is destroyed, or its shape is changed, this extinguishes the usufruct therein. 7Sabinus also states with reference to the usufruct of a ship, that where certain portions of the same are repaired, the usufruct is not lost; but where it is taken apart, even though it should be rebuilt out of the same timber and nothing additional be supplied, the usufruct will be extinguished; and this opinion I think to be the better one, for where a house is rebuilt, the usufruct is extinguished. 8Where the usufruct in a team of four horses is bequeathed, and one of them dies, the question arises, is the usufruct extinguished? I think that it makes a great deal of difference whether the usufruct in the horses, or in the team was bequeathed; for, if it was that of the horses it will remain in the others, but if it was that of the team, it will not remain, as it has ceased to be a team:

11Paulus, On Sabinus, Book III. Unless, before the legacy vests, another horse is put in the place of the one that died.

12Ulpianus, On Sabinus, Book XVII. Where the usufruct of a bath is bequeathed, and the testator changed it into a lodging, or a shop, or made a residence out of it, it must be held that the usufruct is extinguished. 1Hence, if anyone leaves an usufruct in an actor and then transfers him to some other kind of service, it must be said that the usufruct is extinguished.

13Ad Dig. 7,4,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 186, Note 12.Paulus, On Sabinus, Book III. If an usufructuary has harvested a crop and then dies, Labeo says that the crop which is lying on the ground belongs to his heir, but that the grain still attached to the soil belongs to the owner of the land; for the crop is considered to be gathered when the heads of grain or stems of grass are cut, or the grapes are picked, or the olives are shaken off the trees, although the grain may not yet have been ground, or the oil made, or the vintage finished. But although what Labeo stated with reference to the olives being shaken off the trees is true, the rule is not the same concerning those which have fallen of themselves. Julianus says that the crops become the property of the usufructuary when he has gathered them, but that they belong to a bona fide possessor as soon as they are once separated from the soil.

14Pomponius, On Sabinus, Book V. With the exception of the loss of civil rights and death, other causes of the extinction of usufruct allow partial loss of the same.

15Ulpianus, On Sabinus, Book XVIII. Sometimes the mere owner can grant freedom to a slave, for example, where the usufruct was bequeathed until the slave should be manumitted; for the usufruct is extinguished whenever the owner begins the manumission.

16The Same, Disputations, Book V. Where an usufruct is bequeathed to me on a certain condition, and, in the meantime, it is in the possession of the heir, the latter can bequeath the usufruct to someone else; with the result that, if the condition on which my legacy depends is complied with, the usufruct left by the heir is terminated. But if I should lose the usufruct, it will not revert to the legatee to whom it was bequeathed absolutely by the heir, because the right of joint legatees cannot be acquired under different wills.

17Julianus, Digest, Book XXXV. Where the usufruct of land is bequeathed to you absolutely, and the mere ownership of the same is bequeathed to Titius conditionally, while the condition is unfulfilled you acquire the mere right of ownership, and after the condition has been complied with, Titius will be entitled to the land without any restriction; and it makes no difference that the property was bequeathed after the usufruct had been reserved, because when you acquired it you lost all the right to the legacy of the usufruct.

18Pomponius, On Sabinus, Book III. Where an usufruct is bequeathed to a slave belonging to an estate before the estate is entered upon, the better opinion is that when it is entered upon, the usufruct vests in you, and is not terminated because of change of ownership, because it did not vest before you became the heir.

19Gaius, On the Provincial Edict, Book VII. Neither an usufruct, nor a right of way, nor a right to drive, is lost by change of ownership.

20Paulus, On Plautius, Book XV. Will a person who has an usufruct retain it if he only makes use of it because he thinks that he is solely entitled to the use of the same? I am of the opinion that if he knows that he is entitled to the usufruct, and he only exercises the use, he must, nevertheless, be considered to enjoy the usufruct; but if he does not know this, he will lose the usufruct as his use is based not on what he has, but on what he thinks he has.

21Modestinus, Differences, Book III. Where an usufruct is bequeathed to a city, and the site of it is afterwards turned into a plowed field, it ceases to be a city, as was the fate of Carthage; therefore it ceases to have the usufruct, just as in case of death.

22Pomponius, On Quintus Mucius, Book VI. Where the use of a house is bequeathed to a woman, and she goes beyond sea and is absent for the time established by law for the loss of the use, but her husband uses the house, the use is, nevertheless, retained; just as if she had left her slaves in her house, and herself had travelled in foreign countries. This must be stated even more forcibly if a husband leaves his wife at home, where the use of the house was bequeathed to the husband himself.

23The Same, On Quintus Mucius, Book XXVI. Where a field whose usufruct is ours is flooded by a river or by the sea, the usufruct is extinguished, since even the ownership itself is lost in this instance; nor can we retain the usufruct even by fishing. But as the ownership is restored if the water recedes with the same rapidity with which it came, so also, it must be said that the usufruct is restored.

24Javolenus, On the Last Works of Labeo, Book III. If I have the usufruct of a garden, and a river covers it and then recedes; it is the opinion of Labeo that the usufruct is also restored, because the soil always remained in the same legal condition. I think that this is true only where the river covered the garden by reason of an inundation; for if its bed was changed and it flowed in that direction, I think that the usufruct is lost, as the ground of the former bed becomes public property, and cannot be restored to its former state. 1Labeo states that the same rule of law should be observed with reference to a right of way and a road; but I am of the same opinion with reference to these things as I am with reference to the usufruct. 2Labeo says that even if the surface of the ground is removed from my field and replaced with other soil, the land does not, for this reason, cease to be mine, any more than if the field were covered with manure.

25Pomponius, Various Passages, Book XI. It is established that an usufruct may be lost by want of use, whether it is that of a share or is undivided.

26Paulus, On Neratius, Book I. Where a field is occupied by enemies, or a slave is taken by them and afterwards liberated; the usufruct in either is restored by the right of postliminium:

27The Same, Manuals, Book I. Where a slave in whom another party has an usufruct is surrendered, by way of reparation for damage, by the mere owner to the usufructuary; the servitude is merged and the usufruct terminated by the acquisition of the property.

28The Same, On Plautius, Book XIII. If an usufruct is bequeathed for alternate years, it cannot be lost by not making use of it; because there are several legacies.

29Ulpianus, On Sabinus, Book XVII. Ad Dig. 7,4,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 219, Note 5.Pomponius asks the following question: Where the mere owner of land rents it from me as usufructuary, and sells the same land to Seius without the reservation of the usufruct; do I retain the usufruct on account of the act of the purchaser? He says in reply: that although the mere owner may pay me rent, the usufruct nevertheless is extinguished, because the purchaser enjoys it not in my name, but in his own. It is evident that the mere proprietor is liable to me on account of the lease, to the extent of the interest I had in his not doing this; although, if anyone rents the usufruct from me and leases it to another, the usufruct is retained; but if the mere owner leases it in his own name, it must be held to be lost, for the tenant does not enjoy it in my name. 1But if the mere owner should sell the usufruct after it had been purchased from me, it might be asked, would I lose the usufruct? I think that I would lose it; since the purchaser, in this instance also, does not enjoy it as having been bought from me. 2Pomponius also makes this inquiry: If I am asked to deliver to you an usufruct which has been bequeathed to me, am I held to enjoy it through you, so that the usufruct will not be lost? He replied that he is in doubt with reference to this question; but the better opinion is, as Marcellus states in a note, that this matter does, in no way, prejudice the beneficiary of the trust, as he will be entitled to a prætorian action in his own name.

30Gaius, On the Provincial Edict, Book VII. The flesh and hides of dead cattle do not form part of the product of the same, because the usufruct is extinguished as soon as they are dead.

31Pomponius, On Quintus Mucius, Book IV. Where the usufruct of a flock is bequeathed, and the number of the same is reduced to such a point that it cannot be considered a flock, the usufruct terminates.