nfusion and
commixtion. Confusion is an union of two bodies, such as
different liquors, where the parts become entirely
undistinguishable. Commixtion is the blending of two bodies,
such as two bushels of corn, where the parts remain separate
in an obvious and visible manner. As in the latter case the
imagination discovers not so entire an union as in the
former, but is able to trace and preserve a distinct idea of
the property of each; this is the reason, why the civil law,
tho' it established an entire community in the case of
confusion, and after that a proportional division, yet in
the case of commixtion, supposes each of the proprietors to
maintain a distinct right; however necessity may at last
force them to submit to the same division.

QUOD SI FRUMENTUM TITII FRUMENTO TUO MISTUM FUERIT: SIQUIDEM
EX VOLUNTATE VESTRA, COMMUNE EST: QUIA SINGULA CORPORA, ID
EST, SINGULA GRANA, QUAE CUJUSQUE PRO PRIA FUERUNT, EX
CONSENSU VESTRO COMMUNICATA SUNT. QUOD SI CASU ID MISTUM
FUERIT, VEL TITIUS ID MISCUERIT SINE TUA VOLUNT ATE, NON
VIDETUR ID COMMUNE ESSE; QUIA SINGULA CORPORA IN SUA
SUBSTANTIA DURANT. SED NEC MAGIS ISTIS CASIBUS COMMUNE SIT
FRUMENTUM QUAM GREX INTELLIGITUR ESSE CORN MUNIS, SI PECORA
TITII TUIS PECORIBUS MISTA FUERINT. SED SI AB ALTERUTRO
VESTRUM TOTUM ID FRUMENTUM RETINEATUR, IN REM QUIDEM ACTIO
PRO MODO FRUMENTI CUJUSQUE CORN PETIT. ARBITRIO AUTEM
JUDICIS, UT IPSE AESTIMET QUALE CUJUSQUE FRUMENTUM FUERIT.
Inst. Lib. IL Tit. i. Sect 28.

(In the case that your grain was mixed with that of Titius,
if it was done voluntarily on the part of both of you, it is
common property, inasmuch as the individual items, i.e., the
single grains, which were the peculiar property of either of
you, were combined with your joint consent. If, however, the
mixture was accidental, or if Titius mixed it without your
consent, it does not appear that it is common property,
Inasmuch as the several components retain their original
identity. Rather, in circumstances of this sort the grain
does not become common property, any more than a herd of
cattle is regarded as common property, If Titius beasts
should have become mixed up with yours.

However, if all of the aforesaid corn is kept by either of
you, this gives rise to a suit to de