Book II. Of Things.
I. Divisions of Things.
In the preceding book we have treated of the law of persons. Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one. Most things are the property of individuals who acquire them in different ways, as will appear hereafter.
1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.
2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.
3. The seashore extends as far as the greatest winter flood runs up.
4. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.
5. The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.
6. Among things belonging to a corporate body, not to individuals, are, for instance, buildings in cities, theaters, race-courses, and other similar places belonging in common to a whole city.
7. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one.
8. Things are sacred which have been duly consecrated by the pontiffs, as sacred buildings and offerings, properly dedicated to the service of God, which we have forbidden by our constitutio to be sold or mortgaged, except for the purposes of purchasing the freedom of captives. But, if any one consecrates a building by his own authority, it is not sacred, but profane. But ground on which a sacred edifice has once been erected, even after the building has been destroyed, continues to be sacred, as Papinian also writes.
9. Any man at his pleasure makes a place religious by burying a dead body in his own ground; but it is not permitted to bury a dead body in land hitherto pure, which is held in common, against the wishes of a co-proprietor. But when a sepulcher is held in common, any one co-proprietor may bury in it, even against the wishes of the rest. So, too, if another person has the usufructus, the proprietor may not, without the consent of the usufructuary, render the place religious. But a dead body may be laid in a place belonging to another person, with the consent of the owner; and even if the owner only ratifies the act after the dead body has been buried, yet the place is religious.
10. Holy things also, as the walls and gates of a city, are to a certain degree subject to divine law, and therefore are not part of the property of any one. The walls of a city are said to be holy, inasmuch as any offence against them is punished capitally; so, too, those parts of laws by which punishments are established against transgressors, we term sanctions.
11. Things become the property of individuals in various ways; of some we acquire the ownership by natural law, which, as we have observed, is also termed the law of nations; of others by the civil law. It will be most convenient to begin with the more ancient law; and it is very evident that the law of nature, established by nature at the first origin of mankind, is the more ancient, for civil laws could then only begin to exist when states began to be founded, magistrates to be created, and laws to be written.
12. Wild beasts, birds, fish and all animals, which live either in the sea, the air, or the earth, so soon as they are taken by anyone, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Of course any one who enters the ground of another for the sake of hunting or fowling, may be prohibited by the proprietor, if he perceives his intention of entering. Whatever of this kind you take is regarded as your property, so long as it remains in your power, but when it has escaped and recovered its natural liberty, it ceases to be yours, and again becomes the property of him who captures it. It is considered to have recovered its natural liberty, if it has either escaped out of your sight, or if, though not out of your sight, it yet could not be pursued without great difficulty.
13. It has been asked, whether, if you have wounded a wild beast, so that it could be easily taken, it immediately becomes your property. Some have thought that it does become yours directly you wound it, and that it continues to be yours while you continue to pursue it, it then ceases to be yours, and again becomes the property of the first person who captures it. Others have thought that it does not become your property until you have captured it. We confirm this latter opinion, because many accidents may happen to prevent your capturing it.
14. Bees also are wild by nature. Therefore, bees that swarm upon your tree, until you have hived them, are no more considered to be your property than the birds which build their nests on your tree; so, if any one hive them, he becomes their owner. Any one, too, is at liberty to take the honeycombs the bees may have made. But of course, if, before anything has been taken, you see any one entering on your land, you have a right to prevent his entering. A swarm which has flown from your hive is still considered yours as long as it is in your sight and may easily be pursued; otherwise it becomes the property of the first person that takes it.
15. Peacocks, too, and pigeons, are naturally wild, nor does it make any difference that they are in the habit of flying out and then returning again, for bees, which without doubt are naturally wild, do so too. Some persons have deer so tame, that they will go into the woods, and regularly again return; yet no one denies that deer are naturally wild. But, with respect to animals which are in the habit of going and returning, the rule has been adopted, that they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours, and become the property of the first person that takes them. These animals are supposed to have lost the intention, when they have lost the habit, of returning.
16. But fowls and geese are not naturally wild, which we may learn from there being particular kinds of fowls and geese which we term wild. And, therefore, if your geese or fowls should be frightened, and take flight, they are still regarded as yours wherever they may be, although you may have lost sight of them; and whoever detains such animals with a view to his own profit, commits a theft.
17. The things we take from our enemies become immediately ours by the law of nations, so that even freemen thus become our slaves; but if they afterwards escape from us, and return to their own people, they regain their former condition.
18. Precious stones, gems, and other things found upon the seashore become immediately, by natural law, the property of the finder.
19. All that is born of animals of which you are the owner, becomes by the same law your property.
20. Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase; and that is added so gradually that no one can perceive how much is added at any one moment of time.
21. But if the violence of a river should bear away a portion of your land and unite it to the land of your neighbor, it undoubtedly still continues yours. If, however, it remains for long united to your neighbor's land, and the trees, which it swept away with it, take root in his ground, these trees from that time become part of your neighbor's estate.
22. When an island is formed in the sea, which rarely happens, it is the property of the first occupant; for before occupation, it belongs to no one. But when an island is formed in a river, which frequently happens, if it is placed in the middle of it, it belongs in common to those who possess the lands near the banks on each side of the river, in proportion to the extent of each man's estate adjoining the banks. But, if the island is nearer to one side than the other, it belongs to those persons only who possess lands contiguous to the bank on that side. If a river divides itself and afterwards unites again, thus giving to any one's land the form of an island, the land still continues to belong to the person to whom it belonged before.
23. If a river, entirely forsaking its natural channel, begins to flow in another direction, the old bed of the river belongs to those who possess the lands adjoining its banks, in proportion to the extent that their respective estates adjoin the banks. The new bed follows the condition of the river, that is, it becomes public. And, if, after some time, the river returns to its former channel, the new bed again becomes the property of those who possess the lands contiguous to its banks.
24. The case is quite different if anyone's land is completely inundated; for the inundation does not alter the nature of the land, and therefore, when the waters have receded, the land is indisputably the property of its former owner.
25. When one man has made anything with materials belonging to another, it is often asked which, according to natural reason, ought to be considered the proprietor, whether he who gave the form, or he rather who owned the materials. For instance, suppose a person has made wine, oil, or wheat from the grapes, olives, or ears of corn belonging to another; has cast a vessel out of gold, silver, or brass, belonging to another; has made mead with another man's wine and honey; has composed a plaster, or eye-salve, with another man's medicaments; has made a garment with another man's wool; or a ship, or a bench, with another man's timber. After a long controversy between the Sabinians and Proculians, a middle opinion has been adopted based on the following distinction. If the thing made can be reduced to its former rude materials, then the owner of the materials is also considered the owner of the thing made; but, if the thing cannot be so reduced, then he who made it is the owner of it. For example, a vessel when cast, can easily be reduced to its rude materials of brass, silver, or gold; but wine, oil, or wheat, cannot be reconverted into grapes, olives, or ears of corn; nor can mead be resolved into wine and honey. But, if a man has made anything, partly with his own materials and partly with the materials of another, as if he has made mead with his own wine and another man's honey, or a plaster or eye-salve, partly with his own, and partly with another man's medicaments, or a garment with his own and also with another man's wool, then in such cases, he who made the thing is undoubtedly the proprietor; since he not only gave his labor, but furnished also a part of the materials.
26. If, however, any one has woven purple belonging to another into his own vestment, the purple, although the more valuable, attaches to the vestment as an accession, and its former owner has an actio of theft and a condictio against the person who stole it from him, whether it was he or some one else who made the vestment. For although things which have perished cannot be reclaimed by vindicatio, yet this gives ground for a condictio against the thief, and against many other possessors.
27. If materials belonging to two persons are mixed together by their mutual consent, whatever is thence produced is common to both, as if, for instance, they have intermixed their wines, or melted together their gold or silver. And although the materials are different which are employed in the admixture, and thus a new substance is formed, as when mead is made with wine and honey, or electrum by fusing together gold and silver, the rule is the same; for in this case the new substance is undoubtedly common. And if it is by chance, and not by intention of the proprietors, that materials, whether similar or different, are mixed together, the rule is still the same.
28. If the wheat of Titius is mixed with yours, when this takes place by mutual consent, the mixed heap belongs to you in common because each body, that is, each grain, which before was the property of one or other of you, has by your mutual consent been made your common property; but, if the intermixture were accidental, or made by Titius without your consent, the mixed wheat does not then belong to you both in common; because the grains still remain distinct, and retain their proper substance. The wheat in such a case no more becomes common to you both, than a flock would be, if the sheep of Titius were mixed with yours; but, if either of you keep the whole quantity of mixed wheat, the other has a real actio for the amount of wheat belonging to him, but it is in the province of the judge to estimate the quality of the wheat belonging to each.
29. If a man builds upon his own ground with the materials of another, he is considered the proprietor of the building, because everything built on the soil accedes to it. The owner of the materials does not, however, cease to be owner; only while the building stands he cannot claim the materials, or demand to have them exhibited, on account of the law of the Twelve Tables, providing that no one is to be compelled to take away the tignum of another which has been made part of his own building, but that he may be made, by the actio de tigno injuncto, to pay double the value; and under the term tignum all materials for building are comprehended. The object of this provision was to prevent the necessity of buildings being pulled down. But if the building is destroyed from any cause, then the owner of the materials, if he has not already obtained the double value, may reclaim the materials, and demand to have them exhibited.
30. On the contrary, if anyone builds with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case the owner of the property, because he is presumed to have voluntarily parted with them, that is, if he knew he was building upon another's land; and, therefore, if the building should be destroyed, he cannot, even then, reclaim the materials. Of course, if the person who builds is in possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bona fide. For if he knew that he was not the owner of the soil, it may be said against him that he was wrong to build on ground which he knew to be the property of another.
31. If Titius places another man's plant in ground belonging to himself, the plant will belong to Titius; on the contrary, if Titius places his own plant in the ground of Maevius, the plant will belong then to Maevius---that is if, in either case, the plant has taken root; for before it has taken root, it remains the property of its former owner. But from the time it has taken root, the property in it is changed; so much so, that if the tree of a neighbor presses so closely on the ground of Titius as to take root in it, we pronounce that the tree becomes the property of Titius. For reason does not permit that a tree should be considered the property of anyone else than of him in whose ground it has taken root; and, therefore, if a tree, planted near a boundary extends its roots into the lands of a neighbor, it becomes common.
32. As plants rooted in the earth accede to the soil, so, in the same way, grains of wheat which have been sown are considered to accede to the soil. But as he who has built on the ground of another may, according to what we have said, defend himself by an exception of dolus malus, if the proprietor of the ground claims the building, so also he may protect himself by the aid of the same exception, who, at his own expense and acting bona fide, has sown another man's land.
33. Written characters, although of gold, accede to the paper or parchment on which they are written, just as whatever is built on, or sown in, the soil, accedes to the soil. And, therefore, if Titius has written a poem, a history, or an oration, on your paper or parchment, you, and not Titius, are the owner of the written paper. But, if you claim your books or parchments from Titius, but refuse to defray the cost of the writing, then Titius can defend himself by an exception of dolus malus; that is, if it was bona fide that he obtained possession of the papers or parchments.
34. If a person has painted on the tablet of another, some think that the tablet accedes to the picture, others, that the picture, of whatever quality it may be, accedes to the tablet. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Apelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by the exception of dolus malus. If the painter is in possession of the picture, the law permits the owner of the tablet to bring a utilis actio against him; and in this case, if the owner of the tablet does not pay the cost of the picture, he may also be repelled by an exception of dolus malus; that is, if the painter obtained possession bona fide. If the tablet has been stolen, whether by the painter or by any one else, the owner of the tablet may bring an actio of theft.
35. If any person has, bona fide, purchased land from another, whom he believed to be the true owner, when in fact he was not, or has, bona fide, acquired it from such person by gift or by other good title, natural reason demands that the fruits which he has gathered shall be his in return for his care and culture. And, therefore, if the real owner afterwards appears and claims his land, he can have no actio for fruits which the possessor has consumed. But the same allowance is not made to him who has knowingly been in possession of another's estate, and, therefore, he is compelled to restore, together with the lands, all the fruits, although they may have been consumed.
36. The usufructuary of land is not owner of the fruits until he has himself gathered them; and, therefore, if he should die while the fruits, although ripe, are yet ungathered, they do not belong to his heirs, but are the property of the owner of the soil. And nearly the same may be said of the colonus.
37. In the fruits of animals are included their young, as well as their milk, hair and wool; and, therefore, lambs, kids, calves, colts, and young pigs immediately on their birth become, by the law of nature, the property of the usufructory, but the offspring of a female slave is not considered a fruit, but belongs to the owner of the property. For it seemed absurd that man should be reckoned as a fruit, when it is for man's benefit that all fruits are provided by nature.
38. The usufructuary of a flock ought to replace any of the flock that may happen to die by supplying the deficiency out of the young, as also Julian was of opinion. So, too, the usufructuary ought to supply the place of dead vines or trees. For he ought to cultivate with care, and to use everything as a good father of a family would use it.
39. The Emperor Hadrian, in accordance with natural equity, allowed any treasure found by a man in his own land to belong to the finder, as also any treasure found by chance in a sacred or religious place. But treasure found without any express search, but by mere chance, in a place belonging to another, he granted half to the finder, and half to the proprietor of the soil. Consequently, if anything is found in a place belonging to the emperor, half belongs to the finder, and half to the emperor. And hence it follows, that if a man finds anything in a place belonging to the fiscus, the public, or a city, half ought to belong to the finder, and half to the fiscus or the city.
40. Another mode of acquiring things according to natural law is traditional; for nothing is more conformable to natural equity than that the wishes of a person, who is desirous to transfer his property to another, should be confirmed; and, therefore, corporeal things, of whatever kind, may be so passed by tradition, and when so passed by their owner, are made the property of another. In this way are alienated stipendiary and tributary lands, that is, lands in the provinces, between which and Italian lands there is now, by our constitutio, no difference, so that when tradition is made of them for purpose of a gift, a marriage portion, or any other object, the property in them is undoubtedly transferred.
41. But things sold and delivered are not acquired by the buyer until he has paid the seller the price, or satisfied him in some way or other, as by procuring some one to be security, or by giving a pledge. And, although this is provided by a law of the Twelve Tables, yet it may be rightly said to spring from the law of nations, that is, the law of nature. But if the seller has accepted the credit of the buyer, the thing then becomes immediately the property of the buyer.
42. It is immaterial whether the owner deliver the thing himself, or some one else by his desire.
43. Hence, if any one is instructed by an owner with the uncontrolled administration of all his goods, and he sells and delivers anything which is a part of these goods, he passes the property in it to the person who receives the thing.
44. Sometimes, too, the mere wish of the owner, without tradition, is sufficient to transfer the property in a thing, as when a person has lent, or let to you anything, or deposited anything with you, and then afterwards sells or gives it to you. For, although he has not delivered it to you for the purpose of the sale or gift, yet by the mere fact of his consenting to it becoming yours, you instantly acquire the property in it, as fully as if it had actually been delivered to you for the express purpose of passing the property.
45. So, too, anyone who has sold goods deposited in a warehouse, as soon as he has handed over the keys of the warehouse to the buyer, transfers to the buyer the property in the goods.
46. Nay, more, sometimes the intention of an owner, although directed only towards an uncertain person, transfers the property in a thing. For instance, when the praetors and consuls throw their largesse to the mob, they do not know what each person in the mob will get; but as it is their intention that each should get what he gets, they make what each gets immediately belong to him.
47. Accordingly, it is true to say that anything which is seized on, when abandoned by its owners, becomes the property of the person who takes possession of it. And anything is considered as abandoned which its owner has thrown away with a wish no longer to have it as a part of his property, as it therefore immediately ceases to belong to him.
48. It is otherwise with respect to things thrown overboard in a storm, to lighten a vessel; for they remain the property of their owners; as it is evident that they were not thrown away through a wish to get rid of them, but that their owners and the ship itself might more easily escape the dangers of the sea. Hence, anyone who, with a view to profit himself by these, takes them away when washed on shore, or found at sea, is guilty of theft. And much the same may be said as to things which drop from a carriage in motion without the knowledge of their owners.
II. Incorporeal Things.
Certain things, again, are corporeal, others incorporeal.
1. Corporeal things are those which are by their nature tangible, as land, a slave, a garment, gold, silver, and other things innumerable.
2. Incorporeal things are those which are not tangible, such as are those which consist of a right, as an inheritance, a usufructus, usus, or obligations in whatever way contracted. Nor does it make any difference that things corporeal are contained in an inheritance; fruits, gathered by the usufructuary, are corporeal; and that which is due to us by virtue of an obligation, is generally a corporeal thing, as a field, a slave, or money; while the right of inheritance, the right of usufructus, and the right of obligation, are incorporeal.
3. Among things incorporeal are the rights over estates, urban and rural, which are also called servitutiones.
III. Servitutiones.
The servitutiones of rural immovables are, the right of passage, the right of passage for beasts or vehicles, the right of way, the right of passage for water. The right of passage is the right of going or passing for a man, not of driving beasts or vehicles. The right of passage for beasts or vehicles is the right of driving beasts or vehicles over the land of another. So a man who has the right of passage simply has not the right of passage for beasts 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.
1. The servitutiones of urban immovables are those which appertain to buildings, and they are said to be servitutiones of urban immovables, because we term all edifices urban immovables, although really built in the country. Among these servitutiones are the following: that a person has to support the weight of an adjoining house, that a neighbor should have the right of inserting a beam into his wall, that he has to receive or not to receive the water that drops from the roof, or that runs from the gutter of another man's house on to his building, or into his court or drain; or that he is not to raise his house higher, or not to obstruct his neighbor's lights.
2. Some think that among the servitutiones of rural estates are rightly included the right of drawing water, of watering cattle, of feeding cattle, of burning lime or digging sand.
3. These servitutiones are called the servitutiones of immovables, because they cannot exist without immovables. For no one can acquire or owe a servitude of a rural or urban immovable, unless he has an immovable belonging to him.
4. If anyone wishes to create a right of this sort in favor of his neighbor, he must effect it by agreements and stipulations. A person can also, by testament, oblige his heir not to raise his house higher, not to obstruct his neighbor's lights, to permit a neighbor to insert a beam into his wall, or to receive the water from an adjoining roof; or, again, he may oblige his heir to allow a neighbor to go across his land, or to drive beasts or vehicles, or to conduct water across it.
IV. Usufructus.
Usufructus is the right of using, and taking the fruits of things belonging to others, so long as the substance of the things used remains. It is a right over a corporeal thing, and if this thing perish, the usufructus itself necessarily perishes also.
1. The usufructio is detached from the property; and this separation takes place in many ways; for example, if the usufructus is given to anyone as a legacy; for the heir has then the bare ownership, and the legatee has the usufructus; conversely, if the estate is given as a legacy, subject to the deduction of the usufructus, the legatee has the bare ownership, and the heir has the usufructus. Again, the usufructus may be given as a legacy to one person, and the estate minus this usufructus may be given to another. If any one wishes to constitute a usufructus otherwise than by testament, he must effect it by pacts and stipulations. But, lest the property should be rendered wholly profitless by the usufructus being forever detached, it has been thought right that there should be certain ways in which the usufructus should become extinguished, and revert to the property.
2. A usufructus may be constituted not only of lands and buildings, but also of slaves, of beasts of burden, and everything else except those which are consumed by being used, for they are susceptible of a usufructus neither by natural nor by civil law. Among these things are wine, oil, garments, and we may almost say coined money; for it, too, is in a manner consumed by usus, as it continually passes from hand to hand. But the senate, thinking such a measure would be useful, has enacted that a usufructus even of these things may be constituted, if sufficient security be given to the heir; and, therefore, if the usufructus of money is given to a legatee, the money is considered to be given to him in complete ownership; but he has to give security to the heir for the repayment of an equal sum in the event of his death or his undergoing a capitis deminutio. All other things, too, of the same kind are delivered to the legatee so as to become his property; but their value is estimated and security is given for the payment of the amount at which they are valued, in the event of the legatee dying or undergoing a capitis deminutio. The senate has not then, to speak strictly, created a usufructus of these things, for that was impossible, but, by requiring security, has established a right analogous to a usufructus.
3. The usufructus terminates by the death of the usufructuary, by two kinds of capitis deminutio, namely, the greatest and the middle, and also by not being used according to the manner and during the time fixed; all which points have been decided by our constitutio. The usufructus is also terminated if the usufructuary surrenders it to the owner of the property (a cession to a stranger would not have this effect); or, again, by the usufructuary acquiring the property, which is called consolidatio. Again, if a building is consumed by fire, or thrown down by an earthquake, or falls down through decay, the usufructus of it is necessarily destroyed, nor does there remain any usufructus due even of the soil on which it stood.
4. When the usufructus is entirely extinguished, it is reunited to the property; and the person who had the bare ownership begins thenceforth to have full power over the thing.
V. Usus and Habitatio.
The naked usus is constituted by the same means as the usufructus; and is terminated by the same means that make the usufructus to cease.
1. The right of usus is less extensive than that of usufructus; for he who has the naked usus of lands, has nothing more than the right of taking herbs, fruit, flowers, hay, straw, and wood, sufficient for his daily supply. He is permitted to establish himself upon the land, so long as he neither annoys the owner, nor hinders those who are engaged in the cultivation of the soil. He cannot let, or sell, or give gratuitously his right to another, while a usufructuary may.
2. He who has the usus of a house, has nothing more than the right of inhabiting it himself; for he cannot transfer this right to another; and it is not without considerable doubt that it has been thought allowable that he should receive a guest in the house, but he may live in it with his wife and children, and freedmen, and other free persons who may be attached to his service no less than his slaves are. A wife, in the same way, if it is she who has the usus of the house, may live in it with her husband.
3. So, too, he who has the usus of a slave, has only the right of himself using the labor and services of the slave: for he is not permitted in any way to transfer his right to another. And it is the same with regard to beasts of burden.
4. If the usus of a flock or herd, as, for instance, of a flock of sheep, be given as a legacy, the person who has the usus cannot take the milk, the lambs, or the wool, for these are among the fruits. But he may certainly make use of the flock to manure his land.
5. If the right of habitatio is given to anyone, either as a legacy or in any other way, this does not seem a usus or a usufructus, but a right that stands as it were by itself. From a regard to what is useful, and conformably to an opinion of Marcellus, we have published a decision, by which we have permitted those who have this right of habitatio, not only themselves to inhabit the place over which the right extends, but also to let to others the right of inhabiting it.
6. Let if suffice to have said thus much concerning servitutiones, usufructus, usus and habitatio. We shall treat of inheritances and obligationes in their proper places. We have already briefly explained how things are acquired by the law of nations; let us now examine how they are acquired by the civil law.
VI. Title Through Possession.
By the civil law it was provided, that if anyone by purchase, gift, or any other legal means, had bona fide received a thing from a person who was not the owner, but whom he thought to be so, he should acquire this thing by use if he held it for one year, if it were moveable, wherever it might be, or for two years, if it were an immoveable, but this if it were in the solum Italicum; the object of this provision being to prevent the ownership of things remaining in uncertainty. Such was the decision of the ancients, who thought the times we have mentioned sufficient for owners to search for their property, but we have come to a much better decision, from a wish to prevent owners being despoiled of their property too quickly, and to prevent the benefit of this mode of acquisition being confined to any particular locality. We have, accordingly, published a constitutio providing that movables be acquired by a usus extending for three years, and immovables by the "possession of long time," that is, ten years for persons present, and twenty years for persons absent; and that by these means, provided a just cause of possession precede, the ownership of things may be acquired, not only in Italy, but in every country subject to our empire.
1. Sometimes, however, although the thing be possessed with perfect good faith, yet use, however long, will never give the property; as, for instance, when the possession is of a free person, a thing sacred or religious, or a fugitive slave.
2. Things stolen, or seized by violence, cannot be acquired by use, although they have been possessed bona fide during the length of time above prescribed; for such acquisition is prohibited, as to things stolen, by the law of the Twelve Tables, and by the lex Atinia; as to things seized by violence, by the lex Julia et Plautia.
3. When it is said that the acquisition by use of things stolen or seized by violence is prohibited by these laws, it is not meant that the thief himself, or he who possesses himself of the thing by violence, is unable to acquire the property, for another reason prevents them, namely, that their possession is mala fide; but no one else, although he has in good faith purchased or taken away from them, is able to acquire the property in use. Whence, as to movables, it does not often happen that a bona fide possessor gains the property in them by use. For whenever any one sees, or makes over for any other reason, a thing belonging to another, it is a theft.
4. Sometimes, however, it is otherwise; for, if an heir, supposing a thing lent or let to the deceased, or deposited with him, to be a part of the inheritance, sells or gives it as a gift or dowry to a person who receives it bona fide, there is no doubt that the person receiving it may acquire the property in it by use; for the thing is not tainted with the vice of theft, as the heir who has bona fide alienated it as his own, has not been guilty of a theft.
5. So if the usufructuary of a female slave sells or gives away her child, believing it to be his property, he does not commit theft; for there is no theft without the intention to commit theft.
6. It may also happen in various other ways, that a man may transfer a thing belonging to another without committing a theft, so that the possessor acquires the property in it by use.
7. As to movables, it may more easily happen that a person may, without violence, take possession of a place vacant by the absence or negligence of the owner, or his having died without a successor; and although his possession is mala fide, since he knows that he has seized on land not belonging to him, yet if he transfers it to a person who receives it bona fide, this person will acquire the property in it by long possession, as the thing he receives has neither been stolen nor seized by violence. The opinion of the ancients, who thought that there could be a theft of a piece of land or a place, is now abandoned, and there are imperial constitutiones which provide that no possessor of an immoveable shall be deprived of the benefit of a long and undoubted possession.
8. Sometimes even a thing stolen or seized by violence may be acquired by use; for instance, if it has come back into the power of its owner, for then, the vice being purged, the acquisition by use may take place.
9. Things belonging to our fiscus cannot be acquired by use. But Papinian has given his opinion that if, before bona vacantia have been reported to the fiscus, a bona fide purchaser receives any of them, he can acquire the property by use. And the Emperor Antoninus Pius, and the Emperors Severus and Antoninus, have issued rescripts in accordance with this opinion.
10. Lastly, it is to be observed that a thing must be tainted with no vice, that the bona fide purchaser or person who possesses it from any other just cause may acquire it by use.
11. But if a mistake is made as to the cause of possession, and it is wrongly supposed to be just, there is no usucapion. As, for instance, if any one possesses in the belief that he has bought, when he has not bought, or that he has received a gift, when no gift has really been made to him.
12. Long possession, which has begun to reckon in favor of the deceased, is continued in favor of the heir or bonorum possessor, although he may know that the immoveable belongs to another person; but if the deceased commenced his possession mala fide, the possession does not profit the heir or bonorum possessor, although ignorant of this. And our constitutio has enacted the same with respect to usucapions, in which the benefit of possession is to be in like manner continued.
13. Between the buyer and the seller, too, the Emperors Severus and Antoninus have decided by rescript that their several times of possession shall be reckoned together.
14. It is provided by an edict of the Emperor Marcus, that a person who has purchased from the fiscus a thing belonging to another person, may repel the owner of the thing by an exception, if five years have elapsed since the sale. But a constitutio of Zeno of sacred memory has completely protected those who receive anything from the fiscus by sale, gift, or any other title, by providing that they themselves are to be at once secure, and made certain of success, whether they sue or are themselves sued in an actio, while they who think that they have a good ground of action as owners or mortgagees of the things alienated may bring an actio against the sacred treasury within four years. An imperial constitutio, which we ourselves have recently published, extends to those who have received as a gift anything from our palace, or that of the empress, the provisions of the constitutio of Zeno relative to the alienations of the fiscus.
X. The Making of Wills.
The word testament is derived from testatio mentis; it testifies the determination of the mind.
1. That nothing belonging to antiquity may be altogether unknown, it is necessary to observe, that formerly there were two kinds of testaments in use: the one was employed in times of peace, and was named calatic comitiis, the other was employed at the moment of setting out in battle, and was termed procinctum. A third species was afterwards added, called per aes libram; being effected by mancipatio, that is, an imaginary sale in the presence of five witnesses, and the libripens, all citizens of Rome, above the age of puberty, together with him who was called the emptor familiae. The two former kinds of testament fell into disuse even in ancient times; and that made per aes libram also, although it has continued longer in practice, has now in part ceased to be made use of.
2. These three kinds of testament belonged to the civil law, but afterwards another kind was introduced by the edict of the praetor. By the ius honorarium no sale was necessary but the seals of seven witnesses were sufficient. The seals of witnesses were not required by the civil law.
3. But when the progress of society and the imperial constitutiones had produced a fusion of the civil and the praetorian law, it was established that the testament should be made all at one time, in the presence of seven witnesses (two points required by the civil law), with the subscription of the witnesses (a formality introduced by the constitutiones), and with their seals appended, according to the edict of the praetor. Thus the law of testament seems to have had a triple origin. The witnesses, and their presence at one continuous time for the purpose of giving the testament the requisite formality, are derived from the civil law; the subscriptions of the testator and witnesses, from the imperial constitutiones; and the seals of the witnesses and their number, from the edict of the praetor.
4. To all these formalities we have enacted by our constitutio, as an additional security for the genuineness of testaments, and to prevent fraud, that the name of the heir shall be written in the handwriting either of the testator or of the witnesses; and that everything shall be done according to the tenor of that constitutio.
5. All the witnesses may seal the testament with the same seal; for, as Pomponius says, what if the engraving on all seven seals were the same? And a witness may use a seal belonging to another person.
6. Those persons can be witnesses with whom there is testamenti factio. But women, persons under the age of puberty, slaves, madmen, dumb persons, deaf persons, prodigals restrained from having their property in their power, and persons declared by law to be worthless and incompetent to witness, cannot be witnesses.
7. A witness, who was thought to be free at the time of making the testament, was afterwards discovered to be a slave, and the Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus by rescript, declared, that they would aid such a defect in a testament, so that it should be considered as valid as if made quite regularly; since, at the time when the testament was sealed, this witness was commonly considered a free man, and there was no one to contest his status.
8. A father, a son under his power, or two brothers under the power of the same father, may be witnesses to the same testament; for nothing prevents several persons of the same family being witnesses in a matter which only concerns a stranger.
9. But no person under power of the testator can be a witness. And if a filiusfamilias makes a testament giving his castrense peculium, after leaving the army, neither his father, nor any one in power of his father, can be a witness. For, in this case, the law does not allow the testimony of a member of the same family.
10. No person instituted heir, nor any one in subjection to him, nor his father, in whose power he is, nor his brothers under power of the same father, can be witnesses; for the whole business of making a testament is in the present day considered a transaction between the person who has purchased from the testator and the heir. But formerly there was great confusion; for although the ancients would never admit the testimony of the familiae emptor, nor of any one connected with him by the ties of patria potestas, yet they admitted that of the heir, and of persons connected with him by the ties of patria potestas, only exhorting them not to abuse their privilege. We have corrected this, making illegal what they endeavored to prevent by persuasion. For, in imitation of the old law respecting the familiae emptor, we refuse to permit the heir, who now represents the ancient familiae emptor, or any of those connected with the heir by the tie of patria potestas, to be, so to speak, witness in their own behalf; and accordingly we have not suffered the constitutiones of preceding emperors on the subject to be inserted in our code.
11. But we do not refuse the testimony of legatees, or persons taking fideicommissa, or of persons connected with them, because they do not succeed to the rights of the deceased. On the contrary, by one of our constitutiones we have specially granted them this privilege; and we give it still more readily to persons in their power, and to those in whose power they are.
12. It is immaterial whether a testament be written upon a tablet, upon paper, parchment, or any other substance.
13. Any person may execute any number of duplicates of the same testament, each, however, being made with prescribed forms. This may be sometimes necessary; as, for instance, when a man who is going on a voyage is desirous to carry with him, and also to leave at home, a memorial of his last wishes; or for any other of the numberless reasons that may arise from the various necessities of mankind.
14. Thus much may suffice concerning written testaments. But if any one wishes to make a testament, valid by the civil law, without writing, he may do so, in the presence of seven witnesses, verbally declaring his wishes, and this will be a testament perfectly valid according to the civil law, and confirmed by imperial constitutiones.
In the preceding book we have treated of the law of persons. Let us now speak of things, which either are in our patrimony, or not in our patrimony. For some things by the law of nature are common to all; some are public; some belong to corporate bodies, and some belong to no one. Most things are the property of individuals who acquire them in different ways, as will appear hereafter.
1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.
2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.
3. The seashore extends as far as the greatest winter flood runs up.
4. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.
5. The public use of the seashore, too, is part of the law of nations, as is that of the sea itself; and, therefore, any person is at liberty to place on it a cottage, to which he may retreat, or to dry his nets there, and haul them from the sea; for the shores may be said to be the property of no man, but are subject to the same law as the sea itself, and the sand or ground beneath it.
6. Among things belonging to a corporate body, not to individuals, are, for instance, buildings in cities, theaters, race-courses, and other similar places belonging in common to a whole city.
7. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any one.
8. Things are sacred which have been duly consecrated by the pontiffs, as sacred buildings and offerings, properly dedicated to the service of God, which we have forbidden by our constitutio to be sold or mortgaged, except for the purposes of purchasing the freedom of captives. But, if any one consecrates a building by his own authority, it is not sacred, but profane. But ground on which a sacred edifice has once been erected, even after the building has been destroyed, continues to be sacred, as Papinian also writes.
9. Any man at his pleasure makes a place religious by burying a dead body in his own ground; but it is not permitted to bury a dead body in land hitherto pure, which is held in common, against the wishes of a co-proprietor. But when a sepulcher is held in common, any one co-proprietor may bury in it, even against the wishes of the rest. So, too, if another person has the usufructus, the proprietor may not, without the consent of the usufructuary, render the place religious. But a dead body may be laid in a place belonging to another person, with the consent of the owner; and even if the owner only ratifies the act after the dead body has been buried, yet the place is religious.
10. Holy things also, as the walls and gates of a city, are to a certain degree subject to divine law, and therefore are not part of the property of any one. The walls of a city are said to be holy, inasmuch as any offence against them is punished capitally; so, too, those parts of laws by which punishments are established against transgressors, we term sanctions.
11. Things become the property of individuals in various ways; of some we acquire the ownership by natural law, which, as we have observed, is also termed the law of nations; of others by the civil law. It will be most convenient to begin with the more ancient law; and it is very evident that the law of nature, established by nature at the first origin of mankind, is the more ancient, for civil laws could then only begin to exist when states began to be founded, magistrates to be created, and laws to be written.
12. Wild beasts, birds, fish and all animals, which live either in the sea, the air, or the earth, so soon as they are taken by anyone, immediately become by the law of nations the property of the captor; for natural reason gives to the first occupant that which had no previous owner. And it is immaterial whether a man takes wild beasts or birds upon his own ground, or on that of another. Of course any one who enters the ground of another for the sake of hunting or fowling, may be prohibited by the proprietor, if he perceives his intention of entering. Whatever of this kind you take is regarded as your property, so long as it remains in your power, but when it has escaped and recovered its natural liberty, it ceases to be yours, and again becomes the property of him who captures it. It is considered to have recovered its natural liberty, if it has either escaped out of your sight, or if, though not out of your sight, it yet could not be pursued without great difficulty.
13. It has been asked, whether, if you have wounded a wild beast, so that it could be easily taken, it immediately becomes your property. Some have thought that it does become yours directly you wound it, and that it continues to be yours while you continue to pursue it, it then ceases to be yours, and again becomes the property of the first person who captures it. Others have thought that it does not become your property until you have captured it. We confirm this latter opinion, because many accidents may happen to prevent your capturing it.
14. Bees also are wild by nature. Therefore, bees that swarm upon your tree, until you have hived them, are no more considered to be your property than the birds which build their nests on your tree; so, if any one hive them, he becomes their owner. Any one, too, is at liberty to take the honeycombs the bees may have made. But of course, if, before anything has been taken, you see any one entering on your land, you have a right to prevent his entering. A swarm which has flown from your hive is still considered yours as long as it is in your sight and may easily be pursued; otherwise it becomes the property of the first person that takes it.
15. Peacocks, too, and pigeons, are naturally wild, nor does it make any difference that they are in the habit of flying out and then returning again, for bees, which without doubt are naturally wild, do so too. Some persons have deer so tame, that they will go into the woods, and regularly again return; yet no one denies that deer are naturally wild. But, with respect to animals which are in the habit of going and returning, the rule has been adopted, that they are considered yours as long as they have the intention of returning, but if they cease to have this intention, they cease to be yours, and become the property of the first person that takes them. These animals are supposed to have lost the intention, when they have lost the habit, of returning.
16. But fowls and geese are not naturally wild, which we may learn from there being particular kinds of fowls and geese which we term wild. And, therefore, if your geese or fowls should be frightened, and take flight, they are still regarded as yours wherever they may be, although you may have lost sight of them; and whoever detains such animals with a view to his own profit, commits a theft.
17. The things we take from our enemies become immediately ours by the law of nations, so that even freemen thus become our slaves; but if they afterwards escape from us, and return to their own people, they regain their former condition.
18. Precious stones, gems, and other things found upon the seashore become immediately, by natural law, the property of the finder.
19. All that is born of animals of which you are the owner, becomes by the same law your property.
20. Moreover, the alluvial soil added by a river to your land becomes yours by the law of nations. Alluvion is an imperceptible increase; and that is added so gradually that no one can perceive how much is added at any one moment of time.
21. But if the violence of a river should bear away a portion of your land and unite it to the land of your neighbor, it undoubtedly still continues yours. If, however, it remains for long united to your neighbor's land, and the trees, which it swept away with it, take root in his ground, these trees from that time become part of your neighbor's estate.
22. When an island is formed in the sea, which rarely happens, it is the property of the first occupant; for before occupation, it belongs to no one. But when an island is formed in a river, which frequently happens, if it is placed in the middle of it, it belongs in common to those who possess the lands near the banks on each side of the river, in proportion to the extent of each man's estate adjoining the banks. But, if the island is nearer to one side than the other, it belongs to those persons only who possess lands contiguous to the bank on that side. If a river divides itself and afterwards unites again, thus giving to any one's land the form of an island, the land still continues to belong to the person to whom it belonged before.
23. If a river, entirely forsaking its natural channel, begins to flow in another direction, the old bed of the river belongs to those who possess the lands adjoining its banks, in proportion to the extent that their respective estates adjoin the banks. The new bed follows the condition of the river, that is, it becomes public. And, if, after some time, the river returns to its former channel, the new bed again becomes the property of those who possess the lands contiguous to its banks.
24. The case is quite different if anyone's land is completely inundated; for the inundation does not alter the nature of the land, and therefore, when the waters have receded, the land is indisputably the property of its former owner.
25. When one man has made anything with materials belonging to another, it is often asked which, according to natural reason, ought to be considered the proprietor, whether he who gave the form, or he rather who owned the materials. For instance, suppose a person has made wine, oil, or wheat from the grapes, olives, or ears of corn belonging to another; has cast a vessel out of gold, silver, or brass, belonging to another; has made mead with another man's wine and honey; has composed a plaster, or eye-salve, with another man's medicaments; has made a garment with another man's wool; or a ship, or a bench, with another man's timber. After a long controversy between the Sabinians and Proculians, a middle opinion has been adopted based on the following distinction. If the thing made can be reduced to its former rude materials, then the owner of the materials is also considered the owner of the thing made; but, if the thing cannot be so reduced, then he who made it is the owner of it. For example, a vessel when cast, can easily be reduced to its rude materials of brass, silver, or gold; but wine, oil, or wheat, cannot be reconverted into grapes, olives, or ears of corn; nor can mead be resolved into wine and honey. But, if a man has made anything, partly with his own materials and partly with the materials of another, as if he has made mead with his own wine and another man's honey, or a plaster or eye-salve, partly with his own, and partly with another man's medicaments, or a garment with his own and also with another man's wool, then in such cases, he who made the thing is undoubtedly the proprietor; since he not only gave his labor, but furnished also a part of the materials.
26. If, however, any one has woven purple belonging to another into his own vestment, the purple, although the more valuable, attaches to the vestment as an accession, and its former owner has an actio of theft and a condictio against the person who stole it from him, whether it was he or some one else who made the vestment. For although things which have perished cannot be reclaimed by vindicatio, yet this gives ground for a condictio against the thief, and against many other possessors.
27. If materials belonging to two persons are mixed together by their mutual consent, whatever is thence produced is common to both, as if, for instance, they have intermixed their wines, or melted together their gold or silver. And although the materials are different which are employed in the admixture, and thus a new substance is formed, as when mead is made with wine and honey, or electrum by fusing together gold and silver, the rule is the same; for in this case the new substance is undoubtedly common. And if it is by chance, and not by intention of the proprietors, that materials, whether similar or different, are mixed together, the rule is still the same.
28. If the wheat of Titius is mixed with yours, when this takes place by mutual consent, the mixed heap belongs to you in common because each body, that is, each grain, which before was the property of one or other of you, has by your mutual consent been made your common property; but, if the intermixture were accidental, or made by Titius without your consent, the mixed wheat does not then belong to you both in common; because the grains still remain distinct, and retain their proper substance. The wheat in such a case no more becomes common to you both, than a flock would be, if the sheep of Titius were mixed with yours; but, if either of you keep the whole quantity of mixed wheat, the other has a real actio for the amount of wheat belonging to him, but it is in the province of the judge to estimate the quality of the wheat belonging to each.
29. If a man builds upon his own ground with the materials of another, he is considered the proprietor of the building, because everything built on the soil accedes to it. The owner of the materials does not, however, cease to be owner; only while the building stands he cannot claim the materials, or demand to have them exhibited, on account of the law of the Twelve Tables, providing that no one is to be compelled to take away the tignum of another which has been made part of his own building, but that he may be made, by the actio de tigno injuncto, to pay double the value; and under the term tignum all materials for building are comprehended. The object of this provision was to prevent the necessity of buildings being pulled down. But if the building is destroyed from any cause, then the owner of the materials, if he has not already obtained the double value, may reclaim the materials, and demand to have them exhibited.
30. On the contrary, if anyone builds with his own materials on the ground of another, the building becomes the property of him to whom the ground belongs. But in this case the owner of the property, because he is presumed to have voluntarily parted with them, that is, if he knew he was building upon another's land; and, therefore, if the building should be destroyed, he cannot, even then, reclaim the materials. Of course, if the person who builds is in possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bona fide. For if he knew that he was not the owner of the soil, it may be said against him that he was wrong to build on ground which he knew to be the property of another.
31. If Titius places another man's plant in ground belonging to himself, the plant will belong to Titius; on the contrary, if Titius places his own plant in the ground of Maevius, the plant will belong then to Maevius---that is if, in either case, the plant has taken root; for before it has taken root, it remains the property of its former owner. But from the time it has taken root, the property in it is changed; so much so, that if the tree of a neighbor presses so closely on the ground of Titius as to take root in it, we pronounce that the tree becomes the property of Titius. For reason does not permit that a tree should be considered the property of anyone else than of him in whose ground it has taken root; and, therefore, if a tree, planted near a boundary extends its roots into the lands of a neighbor, it becomes common.
32. As plants rooted in the earth accede to the soil, so, in the same way, grains of wheat which have been sown are considered to accede to the soil. But as he who has built on the ground of another may, according to what we have said, defend himself by an exception of dolus malus, if the proprietor of the ground claims the building, so also he may protect himself by the aid of the same exception, who, at his own expense and acting bona fide, has sown another man's land.
33. Written characters, although of gold, accede to the paper or parchment on which they are written, just as whatever is built on, or sown in, the soil, accedes to the soil. And, therefore, if Titius has written a poem, a history, or an oration, on your paper or parchment, you, and not Titius, are the owner of the written paper. But, if you claim your books or parchments from Titius, but refuse to defray the cost of the writing, then Titius can defend himself by an exception of dolus malus; that is, if it was bona fide that he obtained possession of the papers or parchments.
34. If a person has painted on the tablet of another, some think that the tablet accedes to the picture, others, that the picture, of whatever quality it may be, accedes to the tablet. It seems to us the better opinion that the tablet should accede to the picture; for it is ridiculous that a painting of Apelles or Parrhasius should be but the accessory of a thoroughly worthless tablet. But if the owner of the tablet is in possession of the picture, the painter, should he claim it from him, but refuse to pay the value of the tablet, may be repelled by the exception of dolus malus. If the painter is in possession of the picture, the law permits the owner of the tablet to bring a utilis actio against him; and in this case, if the owner of the tablet does not pay the cost of the picture, he may also be repelled by an exception of dolus malus; that is, if the painter obtained possession bona fide. If the tablet has been stolen, whether by the painter or by any one else, the owner of the tablet may bring an actio of theft.
35. If any person has, bona fide, purchased land from another, whom he believed to be the true owner, when in fact he was not, or has, bona fide, acquired it from such person by gift or by other good title, natural reason demands that the fruits which he has gathered shall be his in return for his care and culture. And, therefore, if the real owner afterwards appears and claims his land, he can have no actio for fruits which the possessor has consumed. But the same allowance is not made to him who has knowingly been in possession of another's estate, and, therefore, he is compelled to restore, together with the lands, all the fruits, although they may have been consumed.
36. The usufructuary of land is not owner of the fruits until he has himself gathered them; and, therefore, if he should die while the fruits, although ripe, are yet ungathered, they do not belong to his heirs, but are the property of the owner of the soil. And nearly the same may be said of the colonus.
37. In the fruits of animals are included their young, as well as their milk, hair and wool; and, therefore, lambs, kids, calves, colts, and young pigs immediately on their birth become, by the law of nature, the property of the usufructory, but the offspring of a female slave is not considered a fruit, but belongs to the owner of the property. For it seemed absurd that man should be reckoned as a fruit, when it is for man's benefit that all fruits are provided by nature.
38. The usufructuary of a flock ought to replace any of the flock that may happen to die by supplying the deficiency out of the young, as also Julian was of opinion. So, too, the usufructuary ought to supply the place of dead vines or trees. For he ought to cultivate with care, and to use everything as a good father of a family would use it.
39. The Emperor Hadrian, in accordance with natural equity, allowed any treasure found by a man in his own land to belong to the finder, as also any treasure found by chance in a sacred or religious place. But treasure found without any express search, but by mere chance, in a place belonging to another, he granted half to the finder, and half to the proprietor of the soil. Consequently, if anything is found in a place belonging to the emperor, half belongs to the finder, and half to the emperor. And hence it follows, that if a man finds anything in a place belonging to the fiscus, the public, or a city, half ought to belong to the finder, and half to the fiscus or the city.
40. Another mode of acquiring things according to natural law is traditional; for nothing is more conformable to natural equity than that the wishes of a person, who is desirous to transfer his property to another, should be confirmed; and, therefore, corporeal things, of whatever kind, may be so passed by tradition, and when so passed by their owner, are made the property of another. In this way are alienated stipendiary and tributary lands, that is, lands in the provinces, between which and Italian lands there is now, by our constitutio, no difference, so that when tradition is made of them for purpose of a gift, a marriage portion, or any other object, the property in them is undoubtedly transferred.
41. But things sold and delivered are not acquired by the buyer until he has paid the seller the price, or satisfied him in some way or other, as by procuring some one to be security, or by giving a pledge. And, although this is provided by a law of the Twelve Tables, yet it may be rightly said to spring from the law of nations, that is, the law of nature. But if the seller has accepted the credit of the buyer, the thing then becomes immediately the property of the buyer.
42. It is immaterial whether the owner deliver the thing himself, or some one else by his desire.
43. Hence, if any one is instructed by an owner with the uncontrolled administration of all his goods, and he sells and delivers anything which is a part of these goods, he passes the property in it to the person who receives the thing.
44. Sometimes, too, the mere wish of the owner, without tradition, is sufficient to transfer the property in a thing, as when a person has lent, or let to you anything, or deposited anything with you, and then afterwards sells or gives it to you. For, although he has not delivered it to you for the purpose of the sale or gift, yet by the mere fact of his consenting to it becoming yours, you instantly acquire the property in it, as fully as if it had actually been delivered to you for the express purpose of passing the property.
45. So, too, anyone who has sold goods deposited in a warehouse, as soon as he has handed over the keys of the warehouse to the buyer, transfers to the buyer the property in the goods.
46. Nay, more, sometimes the intention of an owner, although directed only towards an uncertain person, transfers the property in a thing. For instance, when the praetors and consuls throw their largesse to the mob, they do not know what each person in the mob will get; but as it is their intention that each should get what he gets, they make what each gets immediately belong to him.
47. Accordingly, it is true to say that anything which is seized on, when abandoned by its owners, becomes the property of the person who takes possession of it. And anything is considered as abandoned which its owner has thrown away with a wish no longer to have it as a part of his property, as it therefore immediately ceases to belong to him.
48. It is otherwise with respect to things thrown overboard in a storm, to lighten a vessel; for they remain the property of their owners; as it is evident that they were not thrown away through a wish to get rid of them, but that their owners and the ship itself might more easily escape the dangers of the sea. Hence, anyone who, with a view to profit himself by these, takes them away when washed on shore, or found at sea, is guilty of theft. And much the same may be said as to things which drop from a carriage in motion without the knowledge of their owners.
II. Incorporeal Things.
Certain things, again, are corporeal, others incorporeal.
1. Corporeal things are those which are by their nature tangible, as land, a slave, a garment, gold, silver, and other things innumerable.
2. Incorporeal things are those which are not tangible, such as are those which consist of a right, as an inheritance, a usufructus, usus, or obligations in whatever way contracted. Nor does it make any difference that things corporeal are contained in an inheritance; fruits, gathered by the usufructuary, are corporeal; and that which is due to us by virtue of an obligation, is generally a corporeal thing, as a field, a slave, or money; while the right of inheritance, the right of usufructus, and the right of obligation, are incorporeal.
3. Among things incorporeal are the rights over estates, urban and rural, which are also called servitutiones.
III. Servitutiones.
The servitutiones of rural immovables are, the right of passage, the right of passage for beasts or vehicles, the right of way, the right of passage for water. The right of passage is the right of going or passing for a man, not of driving beasts or vehicles. The right of passage for beasts or vehicles is the right of driving beasts or vehicles over the land of another. So a man who has the right of passage simply has not the right of passage for beasts 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.
1. The servitutiones of urban immovables are those which appertain to buildings, and they are said to be servitutiones of urban immovables, because we term all edifices urban immovables, although really built in the country. Among these servitutiones are the following: that a person has to support the weight of an adjoining house, that a neighbor should have the right of inserting a beam into his wall, that he has to receive or not to receive the water that drops from the roof, or that runs from the gutter of another man's house on to his building, or into his court or drain; or that he is not to raise his house higher, or not to obstruct his neighbor's lights.
2. Some think that among the servitutiones of rural estates are rightly included the right of drawing water, of watering cattle, of feeding cattle, of burning lime or digging sand.
3. These servitutiones are called the servitutiones of immovables, because they cannot exist without immovables. For no one can acquire or owe a servitude of a rural or urban immovable, unless he has an immovable belonging to him.
4. If anyone wishes to create a right of this sort in favor of his neighbor, he must effect it by agreements and stipulations. A person can also, by testament, oblige his heir not to raise his house higher, not to obstruct his neighbor's lights, to permit a neighbor to insert a beam into his wall, or to receive the water from an adjoining roof; or, again, he may oblige his heir to allow a neighbor to go across his land, or to drive beasts or vehicles, or to conduct water across it.
IV. Usufructus.
Usufructus is the right of using, and taking the fruits of things belonging to others, so long as the substance of the things used remains. It is a right over a corporeal thing, and if this thing perish, the usufructus itself necessarily perishes also.
1. The usufructio is detached from the property; and this separation takes place in many ways; for example, if the usufructus is given to anyone as a legacy; for the heir has then the bare ownership, and the legatee has the usufructus; conversely, if the estate is given as a legacy, subject to the deduction of the usufructus, the legatee has the bare ownership, and the heir has the usufructus. Again, the usufructus may be given as a legacy to one person, and the estate minus this usufructus may be given to another. If any one wishes to constitute a usufructus otherwise than by testament, he must effect it by pacts and stipulations. But, lest the property should be rendered wholly profitless by the usufructus being forever detached, it has been thought right that there should be certain ways in which the usufructus should become extinguished, and revert to the property.
2. A usufructus may be constituted not only of lands and buildings, but also of slaves, of beasts of burden, and everything else except those which are consumed by being used, for they are susceptible of a usufructus neither by natural nor by civil law. Among these things are wine, oil, garments, and we may almost say coined money; for it, too, is in a manner consumed by usus, as it continually passes from hand to hand. But the senate, thinking such a measure would be useful, has enacted that a usufructus even of these things may be constituted, if sufficient security be given to the heir; and, therefore, if the usufructus of money is given to a legatee, the money is considered to be given to him in complete ownership; but he has to give security to the heir for the repayment of an equal sum in the event of his death or his undergoing a capitis deminutio. All other things, too, of the same kind are delivered to the legatee so as to become his property; but their value is estimated and security is given for the payment of the amount at which they are valued, in the event of the legatee dying or undergoing a capitis deminutio. The senate has not then, to speak strictly, created a usufructus of these things, for that was impossible, but, by requiring security, has established a right analogous to a usufructus.
3. The usufructus terminates by the death of the usufructuary, by two kinds of capitis deminutio, namely, the greatest and the middle, and also by not being used according to the manner and during the time fixed; all which points have been decided by our constitutio. The usufructus is also terminated if the usufructuary surrenders it to the owner of the property (a cession to a stranger would not have this effect); or, again, by the usufructuary acquiring the property, which is called consolidatio. Again, if a building is consumed by fire, or thrown down by an earthquake, or falls down through decay, the usufructus of it is necessarily destroyed, nor does there remain any usufructus due even of the soil on which it stood.
4. When the usufructus is entirely extinguished, it is reunited to the property; and the person who had the bare ownership begins thenceforth to have full power over the thing.
V. Usus and Habitatio.
The naked usus is constituted by the same means as the usufructus; and is terminated by the same means that make the usufructus to cease.
1. The right of usus is less extensive than that of usufructus; for he who has the naked usus of lands, has nothing more than the right of taking herbs, fruit, flowers, hay, straw, and wood, sufficient for his daily supply. He is permitted to establish himself upon the land, so long as he neither annoys the owner, nor hinders those who are engaged in the cultivation of the soil. He cannot let, or sell, or give gratuitously his right to another, while a usufructuary may.
2. He who has the usus of a house, has nothing more than the right of inhabiting it himself; for he cannot transfer this right to another; and it is not without considerable doubt that it has been thought allowable that he should receive a guest in the house, but he may live in it with his wife and children, and freedmen, and other free persons who may be attached to his service no less than his slaves are. A wife, in the same way, if it is she who has the usus of the house, may live in it with her husband.
3. So, too, he who has the usus of a slave, has only the right of himself using the labor and services of the slave: for he is not permitted in any way to transfer his right to another. And it is the same with regard to beasts of burden.
4. If the usus of a flock or herd, as, for instance, of a flock of sheep, be given as a legacy, the person who has the usus cannot take the milk, the lambs, or the wool, for these are among the fruits. But he may certainly make use of the flock to manure his land.
5. If the right of habitatio is given to anyone, either as a legacy or in any other way, this does not seem a usus or a usufructus, but a right that stands as it were by itself. From a regard to what is useful, and conformably to an opinion of Marcellus, we have published a decision, by which we have permitted those who have this right of habitatio, not only themselves to inhabit the place over which the right extends, but also to let to others the right of inhabiting it.
6. Let if suffice to have said thus much concerning servitutiones, usufructus, usus and habitatio. We shall treat of inheritances and obligationes in their proper places. We have already briefly explained how things are acquired by the law of nations; let us now examine how they are acquired by the civil law.
VI. Title Through Possession.
By the civil law it was provided, that if anyone by purchase, gift, or any other legal means, had bona fide received a thing from a person who was not the owner, but whom he thought to be so, he should acquire this thing by use if he held it for one year, if it were moveable, wherever it might be, or for two years, if it were an immoveable, but this if it were in the solum Italicum; the object of this provision being to prevent the ownership of things remaining in uncertainty. Such was the decision of the ancients, who thought the times we have mentioned sufficient for owners to search for their property, but we have come to a much better decision, from a wish to prevent owners being despoiled of their property too quickly, and to prevent the benefit of this mode of acquisition being confined to any particular locality. We have, accordingly, published a constitutio providing that movables be acquired by a usus extending for three years, and immovables by the "possession of long time," that is, ten years for persons present, and twenty years for persons absent; and that by these means, provided a just cause of possession precede, the ownership of things may be acquired, not only in Italy, but in every country subject to our empire.
1. Sometimes, however, although the thing be possessed with perfect good faith, yet use, however long, will never give the property; as, for instance, when the possession is of a free person, a thing sacred or religious, or a fugitive slave.
2. Things stolen, or seized by violence, cannot be acquired by use, although they have been possessed bona fide during the length of time above prescribed; for such acquisition is prohibited, as to things stolen, by the law of the Twelve Tables, and by the lex Atinia; as to things seized by violence, by the lex Julia et Plautia.
3. When it is said that the acquisition by use of things stolen or seized by violence is prohibited by these laws, it is not meant that the thief himself, or he who possesses himself of the thing by violence, is unable to acquire the property, for another reason prevents them, namely, that their possession is mala fide; but no one else, although he has in good faith purchased or taken away from them, is able to acquire the property in use. Whence, as to movables, it does not often happen that a bona fide possessor gains the property in them by use. For whenever any one sees, or makes over for any other reason, a thing belonging to another, it is a theft.
4. Sometimes, however, it is otherwise; for, if an heir, supposing a thing lent or let to the deceased, or deposited with him, to be a part of the inheritance, sells or gives it as a gift or dowry to a person who receives it bona fide, there is no doubt that the person receiving it may acquire the property in it by use; for the thing is not tainted with the vice of theft, as the heir who has bona fide alienated it as his own, has not been guilty of a theft.
5. So if the usufructuary of a female slave sells or gives away her child, believing it to be his property, he does not commit theft; for there is no theft without the intention to commit theft.
6. It may also happen in various other ways, that a man may transfer a thing belonging to another without committing a theft, so that the possessor acquires the property in it by use.
7. As to movables, it may more easily happen that a person may, without violence, take possession of a place vacant by the absence or negligence of the owner, or his having died without a successor; and although his possession is mala fide, since he knows that he has seized on land not belonging to him, yet if he transfers it to a person who receives it bona fide, this person will acquire the property in it by long possession, as the thing he receives has neither been stolen nor seized by violence. The opinion of the ancients, who thought that there could be a theft of a piece of land or a place, is now abandoned, and there are imperial constitutiones which provide that no possessor of an immoveable shall be deprived of the benefit of a long and undoubted possession.
8. Sometimes even a thing stolen or seized by violence may be acquired by use; for instance, if it has come back into the power of its owner, for then, the vice being purged, the acquisition by use may take place.
9. Things belonging to our fiscus cannot be acquired by use. But Papinian has given his opinion that if, before bona vacantia have been reported to the fiscus, a bona fide purchaser receives any of them, he can acquire the property by use. And the Emperor Antoninus Pius, and the Emperors Severus and Antoninus, have issued rescripts in accordance with this opinion.
10. Lastly, it is to be observed that a thing must be tainted with no vice, that the bona fide purchaser or person who possesses it from any other just cause may acquire it by use.
11. But if a mistake is made as to the cause of possession, and it is wrongly supposed to be just, there is no usucapion. As, for instance, if any one possesses in the belief that he has bought, when he has not bought, or that he has received a gift, when no gift has really been made to him.
12. Long possession, which has begun to reckon in favor of the deceased, is continued in favor of the heir or bonorum possessor, although he may know that the immoveable belongs to another person; but if the deceased commenced his possession mala fide, the possession does not profit the heir or bonorum possessor, although ignorant of this. And our constitutio has enacted the same with respect to usucapions, in which the benefit of possession is to be in like manner continued.
13. Between the buyer and the seller, too, the Emperors Severus and Antoninus have decided by rescript that their several times of possession shall be reckoned together.
14. It is provided by an edict of the Emperor Marcus, that a person who has purchased from the fiscus a thing belonging to another person, may repel the owner of the thing by an exception, if five years have elapsed since the sale. But a constitutio of Zeno of sacred memory has completely protected those who receive anything from the fiscus by sale, gift, or any other title, by providing that they themselves are to be at once secure, and made certain of success, whether they sue or are themselves sued in an actio, while they who think that they have a good ground of action as owners or mortgagees of the things alienated may bring an actio against the sacred treasury within four years. An imperial constitutio, which we ourselves have recently published, extends to those who have received as a gift anything from our palace, or that of the empress, the provisions of the constitutio of Zeno relative to the alienations of the fiscus.
X. The Making of Wills.
The word testament is derived from testatio mentis; it testifies the determination of the mind.
1. That nothing belonging to antiquity may be altogether unknown, it is necessary to observe, that formerly there were two kinds of testaments in use: the one was employed in times of peace, and was named calatic comitiis, the other was employed at the moment of setting out in battle, and was termed procinctum. A third species was afterwards added, called per aes libram; being effected by mancipatio, that is, an imaginary sale in the presence of five witnesses, and the libripens, all citizens of Rome, above the age of puberty, together with him who was called the emptor familiae. The two former kinds of testament fell into disuse even in ancient times; and that made per aes libram also, although it has continued longer in practice, has now in part ceased to be made use of.
2. These three kinds of testament belonged to the civil law, but afterwards another kind was introduced by the edict of the praetor. By the ius honorarium no sale was necessary but the seals of seven witnesses were sufficient. The seals of witnesses were not required by the civil law.
3. But when the progress of society and the imperial constitutiones had produced a fusion of the civil and the praetorian law, it was established that the testament should be made all at one time, in the presence of seven witnesses (two points required by the civil law), with the subscription of the witnesses (a formality introduced by the constitutiones), and with their seals appended, according to the edict of the praetor. Thus the law of testament seems to have had a triple origin. The witnesses, and their presence at one continuous time for the purpose of giving the testament the requisite formality, are derived from the civil law; the subscriptions of the testator and witnesses, from the imperial constitutiones; and the seals of the witnesses and their number, from the edict of the praetor.
4. To all these formalities we have enacted by our constitutio, as an additional security for the genuineness of testaments, and to prevent fraud, that the name of the heir shall be written in the handwriting either of the testator or of the witnesses; and that everything shall be done according to the tenor of that constitutio.
5. All the witnesses may seal the testament with the same seal; for, as Pomponius says, what if the engraving on all seven seals were the same? And a witness may use a seal belonging to another person.
6. Those persons can be witnesses with whom there is testamenti factio. But women, persons under the age of puberty, slaves, madmen, dumb persons, deaf persons, prodigals restrained from having their property in their power, and persons declared by law to be worthless and incompetent to witness, cannot be witnesses.
7. A witness, who was thought to be free at the time of making the testament, was afterwards discovered to be a slave, and the Emperor Hadrian, in his rescript to Catonius Verus, and afterwards the Emperors Severus and Antoninus by rescript, declared, that they would aid such a defect in a testament, so that it should be considered as valid as if made quite regularly; since, at the time when the testament was sealed, this witness was commonly considered a free man, and there was no one to contest his status.
8. A father, a son under his power, or two brothers under the power of the same father, may be witnesses to the same testament; for nothing prevents several persons of the same family being witnesses in a matter which only concerns a stranger.
9. But no person under power of the testator can be a witness. And if a filiusfamilias makes a testament giving his castrense peculium, after leaving the army, neither his father, nor any one in power of his father, can be a witness. For, in this case, the law does not allow the testimony of a member of the same family.
10. No person instituted heir, nor any one in subjection to him, nor his father, in whose power he is, nor his brothers under power of the same father, can be witnesses; for the whole business of making a testament is in the present day considered a transaction between the person who has purchased from the testator and the heir. But formerly there was great confusion; for although the ancients would never admit the testimony of the familiae emptor, nor of any one connected with him by the ties of patria potestas, yet they admitted that of the heir, and of persons connected with him by the ties of patria potestas, only exhorting them not to abuse their privilege. We have corrected this, making illegal what they endeavored to prevent by persuasion. For, in imitation of the old law respecting the familiae emptor, we refuse to permit the heir, who now represents the ancient familiae emptor, or any of those connected with the heir by the tie of patria potestas, to be, so to speak, witness in their own behalf; and accordingly we have not suffered the constitutiones of preceding emperors on the subject to be inserted in our code.
11. But we do not refuse the testimony of legatees, or persons taking fideicommissa, or of persons connected with them, because they do not succeed to the rights of the deceased. On the contrary, by one of our constitutiones we have specially granted them this privilege; and we give it still more readily to persons in their power, and to those in whose power they are.
12. It is immaterial whether a testament be written upon a tablet, upon paper, parchment, or any other substance.
13. Any person may execute any number of duplicates of the same testament, each, however, being made with prescribed forms. This may be sometimes necessary; as, for instance, when a man who is going on a voyage is desirous to carry with him, and also to leave at home, a memorial of his last wishes; or for any other of the numberless reasons that may arise from the various necessities of mankind.
14. Thus much may suffice concerning written testaments. But if any one wishes to make a testament, valid by the civil law, without writing, he may do so, in the presence of seven witnesses, verbally declaring his wishes, and this will be a testament perfectly valid according to the civil law, and confirmed by imperial constitutiones.