but was treated as incompatible with good faith. Where the fact of this sort of possession was established, the prætor awarded to the possessor not only protection in his possession till the true owner had established his claim, but also rights of action against trespassers analogous to the rights of action vested in a full proprietor (publiciana actio). In estimating the continuity of possession for the sake of counting the time in cases of prescription, it was important to ascertain what was the intention of an actual possessor, and some arbitrary rules were laid down for determining who was the person on behalf of whom possession was intended to be held. Thus a person was regarded as in possession, for the purpose of acquiring a prescriptive right, if a slave or other person in his power were in possession without his cognizance, or other persons were, and professed to be, in possession on his behalf and with his cognizance. For the same purpose of prescription the possession of a mortgagee, a borrower, or a person holding the thing by a revocable licence (precario), is reckoned as the possession of him from whom the mortgage, loan, or licence, sprang. Possession was sometimes distinguished as "just" and "unjust;" unjust possession being that which had been acquired and was held either surreptitiously, or by violence, or originally by leave and licence from the person against whom it was afterwards adversatively retained (clam, vi, precario). But no practical consequences followed from this division, and unjust possession was, equally L. 3, § 5, D. with just possession, defended by interdicts. (xli. 2). A person whose possession had begun in a particular way, as by inheritance (pro hærede), could not, by his mere will, put himself into the position of a person whose possession had commenced in a different way. [Nemo potest ipse mutare causam possessionis.] T. (ii. 12). For purposes of prescription, however, and so far as good faith was concerned, the time which had elapsed in favour of a deceased possessor could be added to the time of possession by his heir. All legal possession, even though of a kind which could never ripen into a fuller ownership, was protected by a variety of appropriate interdicts, according as the possessor was menaced, or had been actually extruded. (Interdicta, Uti possidetis, " Utrubi," " Unde vi.") §3.-Modes of Acquiring Rights of Ownership. The modes by which rights of ownership were acquired have been distributed in a variety of ways for the purpose of exhibiting them in a bifurcated arrangement, that is, divided into two classes. Such modes are according as an indefinite assemblage of rights, or only a single right, may spring from one act or event (per universitatem or singularum rerum), or, as the rights acquired owe their historical existence to the jus civile or to the jus naturale, that is, the jus gentium; or, as the rights acquired spring into existence for the first time, or are obtained by transfer, voluntary or involuntary, in life or on death, from a previous owner. But these are cross divisions, and it is more convenient to present at one view all the leading facts (acts or events) which were recognized by law as signs that rights of ownership had come into being, or had been transferred, without attempting a classification which rests only on historical considerations. Thus the modes of acquiring rights of ownership may be arranged as: (1) Occupation. (4) Operation of law. (5) Adjudication. (6) Succession (on death), intestate and testamentary. (1) OCCUPATION. Occupation includes every act of seizure of that which is at the time ownerless, by which one becomes an owner in the eye of the law. Thus, under this head are con tained the acquisition of new land or islands left by the altered course of a river, where the occupier had rights. over that part of the river; the capture of wild animals or of tame animals, which by escaping and no longer being followed have recovered their condition of wildness; capture of an enemy's goods in war; gathering and reaping of fruits and crops; finding of things, the previous owner of which may be presumed to have abandoned them (derelict); the discovery of new and precious uses to which a thing in the accidental possession of the owner may be put, or the mixture with it of fresh things, or alteration of its substance (specificatio) in such a way as to change its use or largely to increase its value (accessio, commixtio, confusio, adjunctio). In some of these last cases the law obliged the new owner to compensate the previous owner of the substance wrought upon. (2) PRESCRIPTION. J. (ii. 1). In speaking of possession as a modified ownership, it was seen that one important species owed all its significance to the fact that, if it continued long enough, and certain conditions were fulfilled, it became converted into a full right of ownership. These conditions were a legal foundation for the original possession and good faith in the possessor, that is, absence of fraudulent or malicious intent (justus titulus, bona fides). According to the oldest Roman law, one year for movables and two years for immovables were the periods of time fixed for the ripening of possession into full ownership. By Justinian's legislation the periods of time were lengthened, the conditions were altered, or some of them dispensed with, and the operation of the principle was no longer confined, as before, to Italian territory. According to the law, as it was finally settled. by Justinian's legislation, the following were the periods of prescription for different classes of things under the several conditions mentioned: 3 years for movables, bona fides and justus titulus indispensable. M 10 years for immovables, bona fides and justus titulus indispensable. 20 years for immovables, under the same conditions, where the parties were "absent," that is, when the true owner had no opportunity of knowing his property was being continuously possessed by another. When he was present for part of the time, a proportionate number of years was deducted from the twenty years' period. 30 years for immovables where the true owner was unaware of his right, or for the following classes of things: Things belonging to the public treasury when heriting through their parents' marriage, but which the father had illegally parted with. Or where bona fides or justus titulus were absent, in the case of things for which otherwise a shorter period than thirty years would suffice. 40 years for all things not falling under any of the above classes, or which could not for other reasons pass in a shorter period. Auth. Nov. cxi. Auth. Nov. ix. Justinian, in his Novells, further extended the full benefit of the thirty years' prescription for ten years more,-that is for forty years,--to certain religious and charitable institutions, and to one hundred years for things of the Church. The kinds of prescription which were completed in twenty years or less were called Longi temporis præscriptio; the other kinds, completed only in a longer period, were called Longissimi temporis præscriptio. For the purpose of completing the period of prescription, the times of possession of certain persons in privity with each other might be added together; e.g. that of a deceased person and his heir, or one placed by the prætor in possession of the inheritance (bonorum possessor), or the buyer and seller. It is, of course, presupposed, in acquisition by prescription, that the thing is susceptible of being appropriated. Thus, property in the State treasury cannot be appropriated by any lapse of time and possession. Nor other things in a similar category, as sacred things, and res nullius generally. The term prescription seems to have taken the place of usucapio, as implying rather that the right of action on the part of the original owner was barred than that a new right was created. The term was a more flexible one to apply to the various new periods for acquiring Pr. 1, C. (vii. those rights by possession which were intro- 33). Gaius (ii. duced under the emperors. 59). It might sometimes happen that a person, after formally alienating a thing, still remained in possession on trust from the new owner. In this case the shortest period of possession sufficed to transfer back again the ownership even of immovables (usureceptio). But if a special trust was created, by which a friend or creditor was to hold a thing either for its better safety or as security for debt, and yet the thing still remained in the owner's possession, in the case of the friend any way, and in that of the creditor on discharge of the debt, the owner of the thing was re-established in all his rights respecting it in the shortest of the possible prescription periods; unless, indeed, the debtor hired the use of the thing, or enjoyed the use by special leave and license. "In this case," as Poste's Gaius Mr. Poste well translates it, "he reacquires with- in loco. out giving a consideration" (lucrativa usucapio). . When the time of prescription had run out, without the original owner having had a sufficient opportunity of interrupting the possession owing to his absence on State business, or on certain other accounts looked upon with indulgence, there was an action for re-establishing him in his rights (rescissoria actio). There was also a right of action conceded to one who had not yet completed his term of prescription against any one who, with a less good claim, infringed his rights, as by accidentally coming into actual temporary possession of the thing (publiciana actio). |