« PreviousContinue »
traditio were broken up and separated, not, as usual, united in a single act; and this is what is meant in the text by saying the property passes sine traditione.
45. Item si quis merces in 45. So, too, any one, who has sold horreo depositas vendiderit, simul goods deposited in a warehouse, as soon atque claves horrei tradiderit em- as he has handed over the keys of the ptori, transfert proprietatem mer- warehouse to the buyer, transfers to cium ad emptorem.
the buyer the property in the goods. D. xli. 1. 9. 6.
The text does not state all that was necessary to transfer the property in such a case. It was requisite that the key should be given apud horrea, at the warehouse (D. xviii. 1. 74). A person who was at the warehouse and had the key in his hand was in a position to exercise immediate power over the contents of the warehouse; the goods were in his custody, and he was thus placed in possession of them. The key was not symbolical, but was the means by which he was enabled to deal with the goods as an owner.
46. Hoc amplius interdum et in 46. Nay, more, sometimes the inincertam personam collocata volun- tention of an owner, although directed tas domini transfert rei proprieta- only towards an uncertain person, tem ; ut ecce prætores vel consules, transfers the property in a thing. For qui missilia jactant in vulgus, igno- instance, when the prætors or consuls rant, quid eorum quisque excepturus throw their largesses to the mob, they sit, et tamen, quia volunt, quod do not know what each person in the quisque exceperit, ejus esse, statim mob will get; but as it is their inteneum dominum efficiunt.
tion that each should have what he gets, they make what each gets imme
diately belong to him.
D. xli. 1. 9. 7. 47. Qua ratione verius esse vide- 47. Accordingly, it is quite true to tur et, si rem pro derelicto a domino say that anything which is seized on, habitam occupaverit quis, statim when it has been treated as abandoned eum dominum effici. Pro derelicto by its owner, becomes immediately the autem habetur, quod dominus ea property of the person who takes possesmente abjecerit, ut id rerum suarum sion of it. And anything is considered as esse nollet, ideoque statim dominus abandoned, which its owner has thrown esse desinit.
away with a wish no longer to have it as a part of his property, as it therefore
immediately ceases to belong to him. D. xli. 7. 1.
It might seem as if the property in things abandoned was transferred, like that in things thrown to the mob, by the wish of the owner to transfer it to the person who should first take possession of it; but it is much more natural to consider, with the text, that the thing becomes a res nullius by being abandoned, and the property of the first occupant by being taken possession of.
48. Alia causa est earum rerum, 48. It is otherwise with respect to quæ in tempestate maris levandæ things thrown overboard in a storm, navis causa ejiciuntur. Hæ enim to lighten a vessel ; for they remain
dominorum permanent, quia palam the property of their owners ; as it is est, eas non eo animo ejici, quo quis evident that they are not thrown away eas habere non vult, sed quo magis through a wish to get rid of them, but cum ipsa navi periculum maris effu- in order that their owner, together giat : qua de causa si quis eas flucti- with the ship itself, may more easily bus expulsas vel etiam in ipso mari escape the dangers of the sea. Hence, nactus lucrandi animo abstulerit, any one who, with a view to profit himfurtum committit. Nec longe dis- self by such things, takes them away cedere videntur ab his, quæ de when washed on shore, or when he has rheda currente, non intellegentibus found them in the sea, is guilty of theft. dominis, cadunt.
And much the same may be said as to things which drop from a carriage in motion, without the knowledge of their
D. xli, 1. 9. 8; D. xlvii. 43. 4. A thing could not be considered as abandoned and made a res nullius unless its owner intended to cease to be its owner.
Tit. II. DE REBUS INCORPORALIBUS. Quædam præterea res corporales Certain things, again, are corporeal, sunt, quædam incorporales.
Gai. ii. 12; D. i. 8. 1. 1. Justinian, after having spoken of the natural modes of acquiring property in things, returns in this Title to the division of things, and adds one more division, that of things corporeal and incorporeal, to the divisions given at the beginning of the last Title. Our senses tell us what things corporeal are : things incorporeal are rights, that is, fixed relations in which men stand to things or to other men, relations giving them power over things or claims against persons. And these rights are themselves the objects of rights, and thus fall under the definition of things. For instance, the right to walk over another man's land is said to be an incorporeal thing; for we may have a claim or right to have this right, exactly as, if the land belonged to us, we should have a right to have the land. These rights over things were termed jura in rem, and these jura in rem, some of the more important of which are treated of in this part of the Institutes, were almost exactly on the footing of res’ in Roman law, and were the subjects of real actions equally with things corporeal. (See Introd. sec. 50.) This language of Roman law is rather, perhaps, in accordance with popular language and practical convenience than theoretically accurate. Strictly speaking, the ownership of a field is just as much incorporeal as the ownership of a right of way over a field, and in both cases the law only treats of the corporeal thing, the field, with reference to the incorporeal rights.
We can hardly speak of the possession of a thing incorporeal, but still the actual exercise of the right so much resembles the occupation and using of a corporeal thing, that the term quasipossessio has been employed to denote the position of a person
who exercises the right without opposition, and exercises it as if he was its owner. As little can we speak of the traditio or delivery of a right; but just as quasi-possessio is used to express a position analogous to that of a possessor, so quasi-traditio is a term used to signify the placing a person in this position.
1. Corporales eæ sunt, quæ sui 1. Corporeal things are those which natura tangi possunt : veluti fundus, are by their nature tangible, as land, homo, vestis, aurum, argentum et a slave, a garment, gold, silver, and denique aliæ res innumerabiles. other things innumerable.
Gal. ii. 13; D. i. 8. 1. 1.
2. Incorporales autem sunt, quæ 2. Incorporeal things are those tangi non possunt. Qualia sunt ea, which are not tangible, such as are quæ in jure consistunt: sicut here those which consist in a right, as an ditas, ususfructus, obligationes quo- inheritance, a usufruct, use, or obliquo modo contractæ. Nec ad rem gations in whatever way contracted. pertinet, quod in hereditate res cor- Nor does it make any difference that porales continentur : nam et fructus, things corporeal are contained in an qui ex fundo percipiuntur, corporales inheritance ; for fruits, gathered by the sunt et id, quod ex aliqua obliga- usufructuary, are corporeal ; and that tione nobis debetur, plerumque cor- which is due to us by virtue of an obliporale est, veluti fundus, homo, gation, is generally a corporeal thing, pecunia : nam ipsum jus hereditatis as a field, a slave, or money ; while et ipsum jus utendifruendi et ipsum the right of inheritance, the right of jus obligationis incorporale est. usufruct, and the right of obligation,
are incorporeal. Gai. ii. 14 ; D. i. 8. 1. 1.
3. Eodem numero sunt jura 3. Among things incorporeal are prædiorum urbanorum et rusti- the rights over estates, urban and corum, quæ et servitutes vocantur. rural, which are also called servitudes.
Gai. ii. 14 ; D. i. 8. 1. 1.
8 tself. Whennjoyed by perhe right of
In the last section it was said that usufruct, a personal servitude, was an incorporeal thing, and the same is now said of real or prædial servitudes. This is intended as an observation preliminary to the next three Titles, which treat of servitudes. By servitudes are meant certain portions or fragments of the right of ownership separated from the rest, and enjoyed by persons other than the owner of the thing itself. When the servitude was given to a particular person, it was said to be a personal servitude ; when it was associated with the ownership of another thing, so that whoever was the owner of this other thing was the owner of the servitude, the servitude was said to be a real or prædial servitude ; the latter term being used because it was indispensable that there should be an immoveable thing (see paragraph 3 of next Title), in virtue of which the right given by the servitude was exercised ; and the word prædium, being taken in a general sense, was used to denote this immoveable. The thing over which the prædial servitude was exercised was also always an immoveable. Things over which servitudes, whether personal or prædial, were exercised, were said to serve the person to whom or the thing to which the servitude was attached ; and hence the terms servitus, res serviens
from the rest ond right of ownershipership was separa
were employed, the thing in right of which the servitude was enjoyed being, in opposition, termed res dominans. (See Introd. sec. 64.) u No one could have a servitude over his own thing, nulli res sua servit. (D. viii. 2. 26.) For as he was the owner of all the portions into which the right of ownership was separable, he could not have a second right of ownership over any one portion separated from the rest. Again, as a servitude was the subtraction of some one portion of ownership, it could never have the effect of making the owner of the res serviens do any positive act; its force was either to make him undergo something, as that another should exercise a certain power over a thing of which he was owner, or to make him abstain from doing something which as owner of the thing he had power to do. Servitutum non ea est natura ut aliquid faciat quis, sed ut aliquid patiatur vel non faciat. (D. viii. 1. 15. 1.) Lastly, it may be observed that a prædial servitude was indivisible; the person who enjoyed the servitude could not break up this fragment of ownership into lesser fragments, but a usufruct could be divided.
Tit. III. DE SERVITUTIBUS.
Rusticorum prædiorum jura sunt The servitudes of rural immovehæc : iter, actus, via, aquæ ductus. ables are, the right of passage, the Iter est jus eundi, ambulandi homini, right of passage for beasts or vehicles, non etiam jumentum agendi vel the right of way, the right of passage vehiculum : actus est jus agendi vel for water. The right of passage is the jumentum vel vehiculum. Itaque right of going or passing for a man, qui iter habet, actum non habet; not of driving beasts or vehicles. The qui actum habet, et iter habet eoque right of passage for beasts or vehicles uti potest etiam sine jumento. Via is the right of driving beasts or vehicles est jus eundi et agendi et ambulandi: over the land of another. So a man nam et iter et actum in se via con- who has the right of passage simply tinet. Aquæ ductus est jus aquæ has not the right of passage for beasts ducendæ per fundum alienum. or vehicles ; but if he has the latter
right he has the former, and he may use the right of passing without having any beasts with him. The right of way is the right of going, of driving beasts or vehicles, and of walking ; for the right of way includes the right of passage, and the right of passage for beasts or vehicles. The right of passage for water is the right of conducting water
through the land of another. D. viï. 3, 1.
For prædium there is no exact English equivalent. “Estate' suffices when we are speaking of a prædium rusticum, but it is scarcely consonant with usage to speak of a house as an urban estate. The French immeuble exactly corresponds to prædium, and, perhaps, by borrowing the term “immoveable' we approach as nearly to prædium as the language will permit.
Prædial servitudes, that is, servitudes possessed over one immoveable in right of having another immoveable, were divided into those of rural and urban immoveables (prædia rustica vel urbana). The distinction undoubtedly arose from the one kind being more common in the country, the other in the town. But the distinction, as it was practically understood, soon lost the traces of its origin; and a servitude was said to be that of a rural immoveable when it was one which affected the soil itself, and that of an urban immoveable when it was one which affected the superficies, that is, anything raised upon the soil. Servitutes prædiorum aliæ in solo, alice in superficie consistunt. (D. viii. 1. 3.) If the servitude was one which affected the soil, and for the enjoyment of wbich the soil itself sufficed, as, for instance, the right to traverse another man's land, or to draw water from his spring, it made no difference where the land or the spring was situated. They might be in the heart of a city, and yet the servitude was one of a rural immoveable. So, too, if the servitude was one which affected something built or placed on the soil, as, for instance, the right to place a beam in another man's building; although this building was in the country, the servitude was one of an urban immoveable. In this paragraph and in paragraph 2, instances are given of servitudes of rural immoveables. The object of the servitude iter was the power of passing across land on foot or horseback: iter est qua quis pedes vel eques commeare potest, (D. viii. 3. 12.) That of the servitude. actus was the power of driving animals or vehicles across land : qui actum habet, et plaustrum ducere et jumenta agere potest. (D. viii. 3. 7.) That of the servitude via was the power of using the road in any way whatever, as, for instance, of dragging stones or timber over it, which he could not do if he had only the actus (D. viii. 3. 7); and of having it, in the absence of special agreement, of the width provided by the law of the Twelve Tables, that is, eight feet where it ran straight, and sixteen feet where it wound round to change its direction: viæ latitudo ex lege Duodecim Tabularum in porrectum octo pedes habet ; in anfractum, id est ubi flexum est, sedecim. (D. viii. 3. 8.) Of course the larger of these rights comprehended the smaller ; if a person had the right of driving over land, he had the right of passing over it. A special agreement might indeed be made to the contrary; a person might, for instance, grant the right of driving beasts, but insist that the way should never be used except when beasts were driven.
of rural haph and initude waging;
1. Prædiorum urbanorum sunt 1. The servitudes of urban imservitutes, quæ ædificiis inhærent, moveables are those which appertain to ideo urbanorum prædiorum dictæ, buildings, and they are said to be serquoniam ædificia omnia urbana vitudes of urban immoveables, because prædia appellantur, etsi in villa we term all edifices urban immoveables, ædificata sunt. Item prædiorum although really built in the country.