ENACTMENTS OF JUSTINIAN.
|~ Book XLI ~|
( S. P. Scott, The Civil Law, IX, Cincinnati, 1932 ).
1. Gaius, Diurnal or Golden Matters, Book II.
We obtain the ownership of certain property by the Law of Nations, which is everywhere observed among men, according to the dictates of natural reason; and we obtain the ownership of other things by the Civil Law, that is to say, by the law of our own country. And because the Law of Nations is the more ancient, as it was promulgated at the time of the origin of the human race, it is proper that it should be examined first.
(1) Therefore, all animals which are captured on land, on sea, or in the air, that is to say, wild beasts and birds, as well as fish, become the property of those who take them.
2. Florentinus, Institutes, Book VI.
The same rule applies to their offspring, born while they are in our hands.
3. Gaius, Diurnal or Golden Matters, Book II.
For what does not belong to anyone by natural law becomes the property of the person who first acquires it.
(1) Nor does it make any difference, so far as wild animals and birds are concerned, whether anyone takes them on his own land, or on that of another; but it is clear that if he enters upon the premises of another for the purpose of hunting, or of taking game, he can be legally forbidden by the owner to do so, if the latter is aware of his intention.
(2) When we have once acquired any of these animals, they are understood to belong to us, as long as they are retained in our possession; for if they should escape from our custody and recover their natural freedom, they cease to belong to us, and again become the property of the first one who takes them,
4. Florentinus, Institutes, Book VI.
Unless, having been tamed, they are accustomed to depart and return.
5. Gaius, Diurnal or Golden Matters, Book II.
Wild animals are understood to recover their natural freedom when our eyes can no longer perceive them; or if they can be seen, when their pursuit is difficult.
(1) It has been asked whether a wild animal which has been wounded in such a way that it can be captured is understood immediately to become our property. It was held by Trebatius that it at once belongs to us, and continues to do so while we pursue it, but if we should cease to pursue it, it will no longer be ours, and will again become the property of the first one who takes it. Therefore, if during the time that we are pursuing it another should take it, with the intention of himself profiting by its capture, he will be held to have committed a theft against us. Many authorities do not think that it will belong to us, unless we capture it, because many things may happen to prevent us from doing so. This is the better opinion.
(2) The nature of bees, also, is wild. Hence, if they settle upon one of our trees, they are not considered to belong to us until we have enclosed them in a hive, any more than birds who have made their nests in our trees. Therefore, if anyone else should shut up the bees, he will become their owner.
(3) Likewise, if bees make honey, anyone can take possession of it without being guilty of theft. But, as we have already stated, if anyone enters upon the land of another for such a purpose, he can legally be forbidden by the owner from doing so, if the latter is aware of his intention.
(4) A swarm of bees which has left our hive is understood to be ours as long as it is in sight and its pursuit is not difficult; otherwise, it becomes the property of the first one who takes possession of it.
(5) The nature of peacocks and pigeons is also wild. Nor does it make any difference whether or not they have the habit of flying away and returning; for bees, whose nature has been decided to be wild, do the same thing. Certain persons have stags, which are so tame that they go into forests and return, and no one denies that their nature is wild. Moreover, with reference to such animals as have the habit of going away and returning, the following rule has been adopted, namely : "That they shall be understood to belong to us, as long as they have the intention of returning, but if they should cease to have this intention, they will no longer be ours, and will become the property of the first occupant." They are understood to have ceased to have the intention to return where they have lost the habit of doing so.
(6) The nature of chickens and geese is not wild, for it is well known that there are wild chickens and wild geese. Hence, if my geese or my chickens, having been frightened for any reason, fly so far that I do not know where they are, I will, nevertheless, retain ownership over them, and anyone who takes them with the intention of profiting by it will be held to have committed theft.
(7) Likewise, anything which is taken from the enemy immediately becomes by the Law of Nations the property of him who takes it.
6. Florentinus, Institutes, Book VI.
Likewise, the increase of animals of which we are the owners belongs to us by the same law.
7. Gaius, Diurnal, or Golden Matters, Book II.
To such an extent is this true that even men who are free become the slaves of the enemy; but, still, if they escape from the power of the enemy they will recover their former freedom.
(1) Moreover, anything which a river adds to our land as alluvium is acquired by us under the Law of Nations. That, however, is considered to have been added by alluvium which is added little by little, so that we cannot perceive the amount which is added at each moment of time.
(2) But if the force of a stream takes a portion of your land away from you, and brings it upon mine, it is evident that it will continue to be yours. If, however, it should remain on my land for a long time, so that the trees which it brought with it take root in my soil, it will be considered to form part of my land from that time.
(3) Where an island arises in the sea (which rarely happens), it becomes the property of the first occupant; for it is considered to belong to no one. Where an island is formed in a river (which takes place very frequently), and it occupies the middle of the stream, it becomes the common property of those who have land near the banks on both sides of the stream in proportion to the extent of the land of each person along the banks. If the island is nearer to one side than the other, it will belong to him alone who has land along the bank on that side of the stream.
(4) If a river overflows on one side, and begins to run in a new channel, and afterwards the new channel turns back to the old one, the field which is included between the two channels and forms an island will remain the property of him to whom it formerly belonged.
(5) If, however, the stream, having abandoned its natural bed, begins to flow elsewhere, the former bed will belong to those who have land along the bank, in proportion to the extent of the land situated there, and the new bed will come under the same law as the river itself does, that is, it will become public by the Law of Nations. But if, after a certain length of time, the river should return to its former bed, the new bed will again belong to those who own the land along the banks. Where the new bed occupies all the land, even though the river may have returned to its former channel, he to whom the land belonged cannot, strictly speaking, assert any right to the bed of the stream; because the land which formerly belonged to him has ceased to be his, having lost its original form; and since he has no adjoining land, he cannot, by reason of neighborhood, be entitled to any part of the abandoned bed. To rigidly observe this rule, however, would be a hardship.
(6) The rule is different when anyone's field is entirely covered by water, for the inundation does not change the form of the land; and it is clear that when the water subsides, the land will belong to him who previously owned it.
(7) When anyone makes an article in his own name with materials belonging to another, Nerva and Proculus think that its ownership will belong to him who made it, for the reason that what has been fabricated formerly belonged to no one. Sabinus and Cassius think that, in accordance with natural reason, he who owned the materials would also be the proprietor of what was made out of them, because no article can be manufactured without materials; as, for instance, if I should make a vase out of your gold, silver, or brass; or a ship, a cupboard, or a bench cut out of your boards; or a garment out of your cloth; or mead out of your wine and honey; or a plaster, or an eye-wasli out of your drugs; or wine out of your grapes, or grain; or oil out of your olives. There is, however, a moderate opinion entertained by persons of good judgment, who believe that, if the article can be reduced to its original form and material, what Sabinus and Cassius hold is true, but if this cannot be done, the opinion of Nerva and Proculus should be adopted; for example, when a vase of gold, silver, or copper can be melted and returned to its original rough metallic mass, but wine, oil, or grain cannot be restored to the grapes, olives, and ears from which it was derived; nor can mead be restored to the honey and wine of which it is composed, nor can a plaster or an eye-wash be resolved to the drugs out of which it was compounded. Still it seems to me that some authorities very properly held that no doubt should exist on this point, when wheat has been obtained from the ears of others to whom the latter belonged,"for the reason that the grain retains the ears in its perfect form, and he who threshes it does not manufacture a new article, but only extracts what is already in existence.
(8) If two owners agree to mix materials belonging to them, the entire compound becomes their common property, whether the materials are of the same description or not; as where they mix wine or melt silver, or combine different kinds of substances; or where one contributes wine and the other honey, or one gold and the other silver, although compounds of mead and electrum are products of a dissimilar character.
(9) The same rule of law will apply where materials belonging to two persons are mingled without their consent, whether they are of the same, or of a different nature.
(10) Where one person erects a building on his own ground out of materials belonging to another, he is understood to be the owner of the building, because everything is accessory to the soil which is built upon it. Nevertheless, he who was the owner of the materials does not, for this reason, cease to be such, but, in the meantime, he cannot bring an action to recover them, or to compel their production, under the Law of the Twelve Tables, by which it is provided that no one can be forced to remove timbers belonging to another which were used in the construction of his own house, but he must pay double their value. By the term "timbers" out of which buildings are constructed, all materials are meant. Therefore, if for any reason a house should be demolished, the owner can then bring an action to recover the materials, and have them produced.
(11) The question was very properly asked, if the person who built the house under such circumstances should sell it, and it, after having been owned for a long time by the purchaser, should be demolished, whether the owner would still have a right to claim the materials as his own. The reason for the doubt is that, although the entire building can be acquired by prescription after a long time has elapsed, it does not follow that the separate materials of which it was composed can also be acquired. The latter opinion has not been adopted.
(12) On the other hand, if anyone constructs a building on the land of another with his own materials, the building will become the property of the person to whom the ground belongs. If he knew that the land was owned by another, he is understood to have lost the ownership of the materials voluntarily; and therefore if the house is demolished he will have no right to claim them. Where, however, the owner of the ground claims the building, and does not reimburse the other for the value of the materials and the wages of the workmen, he can be barred by an exception on the ground of fraud; and if he who constructed the building did not know that the land belonged to another, and hence erected it in good faith, this course should certainly be pursued. For if he was aware that the land belonged to another, it can be alleged that he was to blame for rashly building a house upon land which he knew was not his.
(13) If I plant a shrub belonging to another upon my ground, it will belong to me. If, on the other hand, I plant one of mine upon the ground of another, it will belong to him; provided that in either case it has taken root; for, otherwise, it will remain the property of him who previously owned it. In accordance with this, if I press a tree belonging to another into my soil, so it takes root, it will become my tree; for reason does not permit that a tree shall be considered to belong to another unless it takes root in his soil. Hence, if a tree planted near a boundary line sends its roots into the adjoining earth, it becomes the common property of both owners,
8. Marcianus, Institutes, Book III.
In proportion to the place it occupies on each tract of land.
(1) If, however, a stone is formed on a boundary line of two tracts of land held in common, but undivided, the stone also undivided will belong to the joint-owners if it is removed from the ground.
9. Gaius, Diurnal or Golden Matters, Book II.
For this reason plants which have taken root on land belong to it, and grain which has been sowed, is also considered to form a part of the soil. Moreover, as in the case of one who builds upon land belonging to another, if the latter brings an action to recover the building, he can be barred by an exception on the ground of fraud; so, likewise, he who has, at his own expense, sowed seed upon the land of another, can protect himself by means of an exception.
(1) Letters, also, even though they may be of gold, form part of the papyrus and parchment on which they are written; just as materials of which houses are constructed are accessory to the land, and, on the same principle, seeds that have been sown form part of it. Hence, if I write a poem, a history, or a speech of my own upon papyrus or parchment belonging to you, not I, but you, will be understood to be the owner of the work. If, however, you bring an action against me to recover your books or your parchment, and refuse to pay me the expense incurred by writing, I can protect myself by an exception on the ground of fraud, provided I have obtained possession of the articles in good faith.
(2) Pictures, however, do not usually constitute part of the tablets on which they are painted, as letters do of the papyrus and parchment on which they are written; but, on the other hand, it has been decided that the tablet is accessory to the painting. Still, it is ever perfectly proper that a praetorian action should be granted to the owner of the tablet against him who painted the picture, provided he is in possession of the tablet; of which action he can effectually avail himself if he tenders the expense of painting the picture: otherwise, he will be barred by an exception on the ground of fraud, as he certainly should have paid the expense if he was the bona fide possessor of the tablet. We say, however, that an action to recover the tablet will properly lie in favor/of him who painted it, against the owner, but he should tender him the value of the tablet; otherwise, he will be barred by an exception on the ground of fraud.
(3) Property which becomes ours by delivery is acquired by us under the Law of Nations; for nothing is so conformable to natural equity as that the wish of an owner, who intends to transfer his property to another, should be complied with.
(4) It, however, makes no difference whether the owner himself delivers the article in person to another, or whether someone else does it with his consent. Hence, where the free administration of his affairs is entrusted to anyone by a person about to depart upon a journey to a distant country, and the former, in the regular course of business, sells and delivers anything to a purchaser, he transfers the ownership of the same to him who receives it.
(5) Sometimes, even the mere wish of the owner is sufficient to transfer the property without delivery, as, for instance, if I have lent or hired an article to you, and then after having deposited it with you, I sell it to you. For, although I have not delivered it to you for this reason, still, I render it your property by the mere fact that I permit it to remain in your hands on account of it having been purchased.
(6) Likewise, if anyone sells merchandise which is stored in a warehouse, and, at the same time, delivers the keys of the warehouse to the purchaser, he transfers to him the ownership of the merchandise.
(7) Moreover, at times, the will of the owner transfers the title to property to a person who is not designated; for example, where someone throws anything into a crowd, for he does not know how much of it any individual may pick up; and, still, as he is willing that whatever anyone may pick up shall belong to him, he immediately renders him the owner of the same.
(8) The rule is different where merchandise is thrown into the sea during a storm for the purpose of lightening a ship, for it remains the property of the owner, as it was not thrown overboard with the intention of relinquishing it, but that the owner together with the ship might the more readily escape the perils of the sea. For which reason, if anyone obtains the property while on the sea itself, or after it has been cast on land by the force of the waves, and removes it with the intention of profiting by it, he commits a theft.
10. The Same, Institutes, Book II.
Property is acquired for us not only by ourselves, but also by those whom we have in our power; as, for instance, by slaves in whom we have the usufruct, and also by freemen and slaves belonging to others of whom we have possession in good faith. Let us consider each of these cases in detail.
(1) Hence, anything which our slaves obtain by delivery, or which they stipulate for, or acquire in any other way whatsoever, is acquired by us; for he who is in the power of another can have nothing of his own. Therefore, if our slave is appointed an heir, he cannot enter upon the estate unless by our order, and if we order him to do so, the estate is acquired by us, just as if we ourselves had been appointed heirs. In conformity with this principle, a legacy also is acquired by us through our slave.
(2) Moreover, not only is ownership acquired for us by those whom we have under our control, but possession is also; for when they obtain possession of the property of anyone, we, ourselves, are considered to possess it; hence ownership is also acquired for us by long-continued possession.
(3) With reference to those slaves in whom we have only the usufruct, it has been decided that when they acquire anything through the use of our property, or by their own labor, it is acquired by us. If, however, they obtain anything by any other means, it will belong to him in whom the ownership of them is vested. Therefore, if a slave of this kind is appointed an heir, or if anything is bequeathed or given to him, it will not be acquired by me but for the owner of the property.
(4) The same rule which has been adopted with reference to an usufructuary is also applicable to one who is possessed by us in good faith, whether he is free, or a slave belonging to another; and is available in the case of a bona fide possessor. Hence, whatever is acquired in any other way than the two above mentioned will either belong to the person himself if he is free, or to his master if he is a slave.
(5) Still, where a bona fide possessor obtains a slave by usucaption, for the reason that, under these circumstances, he becomes his owner, he can acquire property through him in every way. An usufructuary, however, cannot acquire a slave by usucaption; first, because he does not actually possess him, but merely has the right of using and enjoying him; second, because he knows that the slave belongs to another.
11. Marcianus, Institutes, Book III.
A ward does not need the authority of his guardian for the purpose of acquiring property, but he cannot alienate anything unless his guardian is present and consents; nor (as was held by the Sabinians) can he even transfer possession although it may be natural. This opinion is correct.
12. Callistratus, Institutes, Book II.
Although lakes and ponds sometimes increase in dimensions, and sometimes dry up, they still retain their original boundaries, and therefore the right of alluvium is not admitted, so far as they are concerned.
(1) If a vessel of any kind is made by melting my copper and your silver together, it will not become our common property; because, as copper and silver are different materials, they can be separated by the artificers, and returned to their former condition.
13. Neratius, Rules, Book VI.
If my agent, by my direction, should purchase anything for me, and it is delivered to him in my name, the ownership of the article, that is to say, the title to it, is acquired by me, even if I am not aware of the fact.
(1) The guardian of a male or female ward, just like an agent, acquires property for him or her by purchasing it in the name of the ward, even without his or her knowledge.
14. The Same, Parchments, Book V.
Whatever anyone builds upon the shore of the sea will belong to him; for the shores of the sea are not public like the property which forms part of the patrimony of the people, but resembles that which was formed in the first place by Nature, and has not yet been subjected to the ownership of anyone. For their condition is not dissimilar to that of fish and wild animals, which, as soon as they are taken, undoubtedly become the property of him under whose control they have been brought.
(1) Where a building which has been erected upon the seashore is removed, it should be considered what the condition of the ground on which it was situated is, that is to say whether it will remain the property of him to whom the building belonged, or whether it will revert to its former condition and again become public; just as if it had never been built upon. The latter should be deemed the better opinion, provided it remains in its former condition as a part of the shore.
15. The Same, Rides, Book V.
He, however, who erects a house on the bank of a stream does not thereby make it his own.
16. Florentinus, Institutes, Book VI.
It is established that the right of alluvium does not exist with reference to land having boundaries. This was also decided by the Divine Pius. Trebatius says that where land taken from conquered enemies is granted under the condition that it shall belong to some city, it will be entitled to the right of alluvium, and has no established boundaries; but that land taken by individuals has prescribed boundaries, so that it may be ascertained what was given, and to whom, as well as what was sold, and what remained public.
17. Ulpianus, On Sabinus, Book I.
Where two masters deliver property to a slave owned by them in common, he acquires for one of his masters the share of the other.
18. The Same, On Sabinus, Book IV.
Property forming part of an estate cannot be acquired by the heir through a slave belonging to the same estate, and still less can the estate itself be acquired in this way.
19. Pomponius, On Sabinus, Book III.
Aristo says that a freeman who is serving me in good faith as a slave will undoubtedly acquire for me whatever he earns by his labor through the use of my property. But whatever anyone gives him, or whatever he obtains in transacting business, will belong to him. He says, however, that any estate or legacy which has been bequeathed will not be acquired by me through him, because it is not derived from my property, or from his labor; for he has performed no work to obtain the legacy, and it is, to a certain extent, an estate, because it is accepted by him. This was at one time doubted by Varius Lucullus. The better opinion, however, is that the estate is not acquired, even though the testator may have intended it to belong to me. But even if the supposed slave does not acquire it for me, still, if it was the evident intention of the testator that this was to be done, the estate should be delivered to me. Trebatius thinks that where a freeman is serving anyone in good faith as a slave, and enters upon an estate by order of the person whom he is serving, he himself will become the heir; for it makes no difference what a man intended to do, but what he did do. Labeo holds the contrary opinion, provided he was compelled to do this; but if he desired to do it, he will become the heir.
20. Ulpianus, On Sabinus, Book XXIX.
A delivery of property should not and cannot transfer any more right in the same to him who receives it than he who delivers it possessed. Therefore, anyone who owns land, can transfer it by delivery; but if he did not have the ownership of the same, he does not convey anything to him who receives it.
(1) When the ownership is transferred to him who receives it, it is transferred in the same condition that it was while in the possession of the grantor. If it is subject to a servitude, it passes with the servitude; if it is free, it passes in that condition; and if servitudes are due to the land which is transferred, it is conveyed together with the rights to the servitudes imposed for its benefit. Hence if anyone should allege that certain land is free, and he delivers a tract which is charged with a servitude, he diminishes nothing of the right of the servitude attaching to the said land, but he, nevertheless, binds himself, and must furnish what he agreed to do.
(2) If Titius and myself purchase property, and delivery of it is made to Titius individually, and also as my agent, I think that the property is also acquired by me, because it is established that possession of every kind of property, and consequently the ownership of the same, can be obtained through the agency of a person who is free.
21. Pomponius, On Sabinus, Book XI.
If my slave is serving you in good faith, and he purchases something which is delivered to him, Proculus says that it will not become mine, because I have not the slave in my possession; nor will it be yours, because it was not acquired by means of your property. If, however, a freeman buys anything while he is serving you as a slave, it will belong to him individually.
(1) If you are in possession of property belonging to me, and I wish it to be yours, it will become yours, even though it may not have come into my hands.
22. Ulpianus, On Sabinus, Book XL.
No one who is in possession of a slave either by force or clandestinely, or by a precarious title, can acquire a right to him by any stipulation he may enter into, or by delivery of the property.
23. The Same, On Sabinus, Book XLIII.
Whoever serves anyone in good faith as a slave, whether he is the slave of another, or is free, will acquire for his possessor whatever he obtains by means of the property of the latter, while serving in good faith as a slave. He will, in like manner, acquire for him whatever he earns by his own labor, for it is, to a certain extent, considered as the property of the former, because he owes his labor to him whom he is serving in good faith.
(1) He will, however, acquire the property for his possessor only as long as he serves him in good faith as a slave; but as soon as he ascertains that he belongs to someone else, or is free, let us ascertain whether he will continue to acquire property for him. In examining this question, we must determine whether we shall consider the beginning of the possession, or all the moments included in it. The better opinion is that all the time should be taken into account.
(2) Generally speaking, it must be said that whatever he who is serving in good faith cannot acquire by means of the property of his possessor he will acquire for himself; but what he cannot acquire for himself by means of property other than that of his possessor, he will acquire for him whom he serves in good faith as a slave.
(3) Where anyone serves two persons in good faith as a slave, he will acquire property for both of them, but for each one in proportion to the use he has made of his capital. The question, however, may arise, whether what he acquires with the capital of one of them will partly belong to the person whom he is serving in good faith as a slave, and partly to his own master, if he is a slave; or, if he is free, whether it will belong to him whom he is serving in good faith, or whether he should acquire the entire amount for the benefit of him whose property he has used. Scaevola discusses this point in the Second Book of Questions. He says that if a slave belonging to another serves two persons in good faith, and acquires property by the use of something belonging to one of them, it is reasonable to hold that he acquires it for him alone. He also says, if the slave mentions the name of him with reference to whose property he enters into a stipulation, there is no doubt that he makes the acquisition solely for him; because if he had stipulated expressly in the name of one of his masters with reference to his property, he would acquire the entire amount for his benefit. He afterwards adopted the opinion that where anyone is serving several masters in good faith as a slave, he will acquire for me alone, even if he had not stipulated with reference to my property, either in my name or by my express order; for it has been established that whenever a slave owned in common cannot acquire property for all his owners, he can acquire it for him alone who will be benefited thereby. I have repeatedly stated that Julianus held this opinion: which we also approve.
24. Paulus, On Sabinus, Book XIV.
It must be said with reference to everything which can be restored to its former condition, that if the material remains as it was, and the form only is changed (as, for instance, if you make a statue out of my bronze, or a cup out of my silver), I will be the owner of it:
25. Callistratus, Institutes, Book II.
Unless this is done in the name of another with the consent of the owner; for then, by virtue of his consent, the entire article will belong to him in whose name it was made.
26. Paulus, On Sabinus, Book XIV.
If, however, you build a ship out of my boards, it will belong to you, for the reason that the cypress tree, of which they formed a part, is no longer in existence, any more than wool, where a garment is made of it; but a new form, composed of the cypress or the wool, • has been produced.
(1) Proculus informs us that men ordinarily follow the rule adopted by Servius and Labeo; that is to say, in cases where the quality of property is considered, anything that is added becomes accessory to all, as where a foot or a hand is added to a statue, a bottom or a handle to a cup, a support to a bed, a plank to a ship, or stones to a building, for they will all belong to him who formerly owned the property.
(2) If a tree is torn up by the roots, and deposited upon the land of another, it will belong to the former owner until it has taken root; but, after it has done this, it will become an accessory of the land and if it is torn up by the roots a second time, it will not revert to the former owner: for it is probable that it became another tree through the different nourishment it received from the soil.
(3) Labeo says that if you dye my wool purple, it will still be mine, because there is no difference between wool after it has been dyed, and where it has fallen into mud or filth, and has lost its former color for this reason.
27. Pomponius, On Sabinus, Book XXX.
It must be admitted that if you add any silver belonging to another to a mass of that metal of which you are the owner, all of it will not belong to you. On the other hand, if you solder your cup with lead or silver belonging to another, there is no doubt that the cup will be yours, and that you can legally recover it by an action.
(1) Where several drugs belonging to different persons are contributed at the same time, and a similar remedy is compounded of them or where you make an ointment by combining different perfumes, none of the former owners can, in this instance, properly claim that the product belongs to him; therefore it is best to hold that it belongs to the one in whose name it was made.
(2) Where two parts of an article belonging to different owners are soldered together, the question arises, to whom do they belong? Cassius says that this must be determined in accordance with the size or the value of each of the parts; but if neither one can be considered as accessory to the other, let us see whether it cannot be considered as a mass which has been melted, or whether it will belong to him in whose name the parts were soldered together. Both Proculus and Pegasus hold that each part will belong to the person who owned it before it was soldered to the other.
28. The Same, On Sabinus, Book LIII.
If your neighbor builds upon your wall, Labeo and Sabinus say that what he builds will belong to him. Proculus, however, holds that it will belong to you, just as anything which another builds upon your land becomes your property. This is the better opinion.
29. Paulus, On Sabinus, Book XVI.
When an island is formed in a stream, it becomes the common property of those who own land along the bank, not undivided, but separated by distinct boundaries; for each one of them will have a right to that portion of it which is opposite to his land on the bank of the stream, just as if a straight line were drawn through the island.
30. Pomponius, On Sabinus, Book XXXIV.
Hence, if an island which has been formed accrues to my land, and I sell the lower part of the latter, which is not opposite to the island, none of the island will belong to the purchaser, for the reason that it would not have been his in the beginning, even if he had been the owner of that part of my land at the time when the island was formed.
(1) Celsus, the son, says that if a tree grows along the bank of a river where my land is situated, it will belong to me, because the soil itself is my individual property and the public is only entitled to the use of the same; and, therefore, if the bed of the river should dry up, it will become the property of the neighbors, for the reason that the people no longer make use of it.
(2) An island is formed in a river in three different ways; first, when the stream flows around land which did not originally belong to its bed; second, when it leaves the place, which was formerly its bed, dry, and commences to flow around it; third, when, by removing soil little by little, it raises a high place above the bed of the river and increases it by alluvium. By the last two ways the island becomes the private property of him whose land was nearest to it when it first appeared. For it is the nature of a stream to change its bed, when it alters its course, and it does not make any difference whether merely the soil forming the bed is changed, or whether it is raised by earth being deposited upon it, as it is always of the same character. In the first instance, the condition of the property is not altered.
(3) Alluvium restores a field to the state in which it was before the force of a stream entirely removed it. Therefore, if a field which is situated between a public highway and a river is covered with water by the overflow of the stream, whether it is inundated little by little, or not, and it is restored by the same force through the receding of the river, it will belong to its former owner. For rivers perform the duties of those officials who designate the boundaries of land, and adjudge them sometimes from private individuals to the public, and sometimes from the public to private individuals. Hence, as the land above mentioned became public when it served as the bed of a river, it now should again become private, and belong to its original owners.
(4) If I drive piles into the sea, and build upon them, the edifice will immediately be mine; as what belongs to no one becomes the property of the first occupant.
31. Paulus, On the Edict, Book XXXI.
The mere delivery of an article does not transfer its ownership, for this takes place only where a sale or some other just cause precedes delivery.
(1) A treasure is an ancient deposit of money, the memory of which no longer remains, so that it now has no owner. Hence, it becomes the property of him who finds it, because it belongs to no one else. On the other hand, if anyone, for the sake of profit, or actuated by fear, with a view to its preservation, hides money in the ground, it is not a treasure, and anyone who appropriates it will be guilty of theft.
32. Gaius, On the Provincial Edict, Book XI.
We acquire by means of our slaves in almost every way, even against our consent.
33. Ulpianus, Disputations, Book IV.
Marcellus, in the Twentieth Book, discusses the point as to whom a stipulation or a legacy applies when it is made by a slave forming part of the castrense peculium of a son under paternal control, who was serving in the army, before the estate was entered upon. I think that the opinion entertained by Scaevola, and discussed by Marcellus himself, is the correct one; namely, if the estate is entered upon, everything is acquired where the slave forms part of it; but if it is not entered upon, the acquisition should be considered as made by a slave of the father. Where an usufruct is bequeathed to such a slave, it will sometimes be considered as left to the father, and sometimes to the heir, without being held to have passed from one of these persons to the other.
(1) The same distinction is applicable where property has been taken in order to determine whether an action for theft will lie or not; since if the heir should enter upon the estate, the property will not be considered as having been stolen from it; or if he should not enter upon it, an action on the ground of theft, and also a personal one for the recovery of property, will be granted to the father.
(2) Whenever a slave belonging to an estate enters into a stipulation, or acquires property by delivery, his act takes effect through the person of the deceased; as is held by Julianus, whose opinion that the person of the testator should be considered in a case of this kind is still accepted,
34. The Same, On Taxes, Book IV.
For an estate does not represent the person of the heir, but that of the deceased, which rule has been established by many precepts of the Civil Law.
35. The Same, Disputations, Book VII.
If my agent, or the guardian of a ward, delivers his own property as belonging to me, or to the ward, to another, he will not be deprived of the ownership of the same, as the alienation is void, because no one can lose his property through a mistake.
36. Julianus, Digest, Book XIII.
When we agree as to property which has been delivered, but dissent as to the causes for its transfer, I do not understand why the delivery should not be valid; for example, if I think that I am obliged to transfer a tract of land to you in compliance with the terms of a will, and I transfer it, and you are under the impression that I should do so by virtue of a stipulation. For if I pay you a sum of money for the purpose of making a donation of the same, and you think I intend to lend it to you, it is settled that the ownership will pass to you, and the fact that we differed with respect to the cause of giving and receiving it will be no impediment to its legal transfer.
37. The Same, Digest, Book XLIV.
Possession of property is not acquired for a creditor by a slave who has been given in pledge, for the reason that neither by stipulation nor by mandate, nor in any other way whatsoever, can anything be acquired by him, even though he may have possession of the slave.
(1) If one of several masters gives money to a slave owned in common, it is in the power of the master to bestow the money upon the said slave held in common in whatever way he may desire; for if he should only do this in order to deduct it from his accounts, and let it form part of the peculium of the slave, it will still remain the property of the said master. If, however, he should give the money to the slave held in common, in the same way that we are accustomed to make donations to the slaves of others, it will become the common property of the joint-owners in proportion to the share which each one has in the slave.
(2) However, in order that the following question may be considered, let us suppose that one joint-owner has given a sum of money to a slave owned in common, in order to retain his ownership of the property; and if the slave should purchase a tract of land with the said money, it will be owned in common by the joint proprietors in proportion to the share which each one has in the slave; for, even if the common slave bought the tract of land with stolen money, it will become the property of the joint-owners, according to their interest in the slave. A slave in whom someone has an usufruct does not acquire property for his owner by reason of the usufruct; nor can a slave held in common acquire property for one master by means of that belonging to another. But, just as property is acquired from others under these circumstances, the condition of a slave subject to an usufruct differs from that of a slave owned in common (for instance, one of them does not acquire property for the usufructuary, but the other acquires it for his masters), as where anything is obtained by making use of the property of the usufructuary it will belong to him alone, but what a slave owned in common acquires by means of the property of one master will belong to both.
(3) As a slave owned in common, by expressly stipulating for one of his masters, acquires property for him alone, so also he acquires property solely for him through receiving it by delivery.
(4) When a slave belonging to one person receives property by delivery, alleging that he receives it for his master, and Titius, he acquires half of it for his master, but his act with reference to the other half is void.
(5) If a slave, subject to usufruct, should say that he received property acquired through the usufruct by delivery, for his owner, he will acquire all of it for him; for if he enters into a stipulation with reference to property belonging to the usufruct, he will acquire it for his owner.
(6) If you wish to make me a donation, and I direct you to deliver the property to a slave jointly owned by Titius and myself, and the slave receives it with the intention of obtaining it for Titius, the transaction will be void; or if you deliver property to my agent with the intention that it shall become mine, and he receives it with the intention of making it his, this transaction will also be void. If a slave owned in common r.eceives property with the intention of acquiring it for both his masters, the transaction, so far as one of them is concerned, will be of no force or effect.
38. Alfenus Varus, Epitomes of the Digest of Paulus, Book IV.
Attius had a tract of land along a public highway; beyond the highway there was a river, and a field belonging to Lucius Titius. The river gradually surrounded the field, which was situated between the road and the river, and afterwards covered the road, then it receded little by little, and by alluvium returned to its ancient bed. The conclusion arrived at was that, since the river had covered both the field and the highway, the field became the property of him who owned land on the other side of the stream, and afterwards, having little by little receded to its former channel, the land was taken away from him whose property it had become, and was added to that of him who was on the other side of the highway, as his land was nearest to the river. The highway, however, which was public, could belong to no one by accession. It was decided that the highway offered no impediment to prevent the field which was left on the other side of it by alluvium from becoming the property of Attius, for the highway itself was also part of his land.
39. Julianus, On Minicius, Book III.
Even a slave who has been stolen acquires for a purchaser in good faith, if he makes a stipulation, or receives by delivery anything obtained by means of his property.
40. Africanus, Questions, Book VII.
The question was raised, if a person whom a freeman was serving in good faith as a slave should die, and leave an heir who knew that the alleged slave was free, whether the heir could acquire any property by his agency. It cannot be said that he is a bona fide possessor, since, when he begins to have possession, he is aware that the man is free; because, if anyone should devise land to him and the heir knew that it had been devised, there is no doubt that the crops from the land do not become his; and there is much more reason for the application of this principle, if the testator had possession of the land in good faith, having bought it from one who was not the owner. The same rule must be observed with reference to the labor and agency of slaves; so that, whether they are ours or belong to strangers, and whether they have been bequeathed or manumitted by will, nothing will be acquired by them for the heirs, provided the latter were not ignorant of their status; for at the same time it must be admitted that, in the case where a bona fide possessor renders the crops, which he has used and which were derived from the land, his own, the profits of his labor or his property will also be acquired for him by the slave.
41. Ulpianus, On the Edict, Book IX.
Trebatius and Pegasus hold that statues erected in a town do not belong to the citizens; but the Praetor must see that whatever has been placed there with the intention of rendering it public shall not be removed by any private person, not even by him who erected it. Therefore, the citizens will be entitled to an exception against anyone claiming the statues, and to an action against anyone having possession of them.
42. Paulus, On the Edict, Book XI.
A substitution which has not yet taken place is not considered to form part of our property.
43. Gaius, On the Provincial Edict, Book VII.
A man who is possessed in good faith as a slave does not acquire for the possessor anything which he obtains by means of the capital of another.
(1) It is clear that incorporeal property is not capable of delivery and usucaption.
(2) If a slave, the usufruct of whom belongs to another than his owner, himself purchases a slave who is delivered to him before he pays the price, it is uncertain for whom he acquires the ownership. For if he should pay the price out of the peculium belonging to the usufructuary, it is understood that the slave will become his; but if he pays it out of the peculium to which the owner is entitled, the slave will be considered to belong to the latter.
44. Ulpianus, On the Edict, Book XIX.
Pomponius discusses the following point. Wolves carried away some hogs from my shepherds; the tenant of an adjoining farm having pursued the wolves with strong and powerful dogs, which he kept for the protection of his flocks, took the hogs away from the wolves, or the dogs compelled them to abandon them. When my shepherd claimed the hogs, the question arose whether they had become the property of him who recovered them, or whether they were still mine; for they had been obtained by a certain kind of hunting. The opinion was advanced that, as where animals were captured on sea or land, and regained their natural freedom, they ceased to belong to those who took them, so, where marine or terrestrial animals deprive us of property, it ceases to be ours when the said animals have escaped beyond our pursuit. In fact, who can say that anything which a bird flying across my courtyard or my field carries away still belongs to me? If, therefore, it ceases to be mine, and is dropped from the mouth of the animal, it will belong to the first occupant; just as when a fish, a wild boar, or a bird, escapes from our control, and is taken by another, it becomes the property of the latter. Pomponius inclines to the opinion that the property continues to be ours, as long as it can be recovered; although what he states with reference to birds, fishes, and wild beasts is true. He also says that if anything is lost by shipwreck, it does not immediately cease to be ours, and that anyone who removes it will be liable for quadruple its value. And, indeed, it is better to hold that anything which is taken away by a wolf will continue to be ours as long as it can be recovered. Therefore, if it still remains ours, I think that an action on the ground of theft will lie. For if the tenant pursued the wolves, not with the intention of stealing the property (although he might have had such an intention), but admitting that he did not pursue them with this object in view, still, as he did not restore the hogs to my shepherd when he demanded them, he is held to have suppressed and concealed them; and therefore I think that he will be liable to an action on the ground of theft, as well as one to produce the property in court; and after this has been done, the hogs can be recovered from him.
45. Gaius, On the Provincial Edict, Book VII.
When a slave owned in common acquires anything by means of the property of one of his masters, it will, nevertheless, belong to both of them; but the one by means of whose property it was acquired can recover the entire amount by an action in partition; for good faith demands that each of the owners shall have a preferred claim to whatever the slave obtained by means of his property; but if the slave should acquire it in some other way, it will belong to all the joint-owners in proportion to their ownership.
46. Ulpianus, On the Edict, Book LXV.
There is nothing extraordinary in the fact that anyone can transfer to another the ownership of property which he does not possess; for a creditor, by selling a pledge, transfers to the purchaser a title which he himself did not have.
47. Paulus, On the Edict, Book L.
An estate cannot be acquired by the usufructuary through a slave, for an estate cannot consist of the services of a slave.
48. The Same, On Plautius, Book VII.
A bona fide purchaser undoubtedly obtains as his own any profits acquired by means of the property of another in the interim, and this not only refers to such as are acquired by his diligence and labor, but to all others, because, as far as the profits are concerned, he practically occupies the position of the owner; for, even before he obtains the crops, and immediately after they are separated from the soil, they become the property of a bona fide purchaser. Nor does it make any difference whether what I buy in good faith can be acquired by prescription or not; as, for instance, if it belongs to a ward, or has been obtained by violence, or has been given to the Governor of a province contrary to the law against extortion, and has afterwards been transferred by him to a bona fide purchaser.
(1) On the other hand, if at the time when the property was delivered to me I thought that it belonged to the vendor, and I afterwards ascertained that it belonged to someone else, the question arises whether I am entitled to the profits, because possession had lasted for a long time. Pomponius says that it must be apprehended that a purchaser of this kind is not one in good faith, although he may hold the property, for prescription has reference to the law, and whether he possesses the property either in good or bad faith is a question of fact. Nor can this be controverted by alleging that a long time has elapsed; as, on the other hand, he who can not acquire property by prescription on account of a defect in the title to the same has still a right to the profits thereof.
(2) The increase of sheep is a profit, and therefore it belongs to a bona fide possessor, even if they should have been sold while pregnant, or had been stolen while in that condition. And, indeed, it cannot be doubted that a possessor in good faith is entitled to the milk, even though the animals may have been sold ready to be milked. The same rule applies to wool.
49. The Same, On Plautius, Book IX.
Whatever the usufructuary of a slave gives him out of his own property will continue to be his. If, however, he did this with the intention that the property should belong to the owner, it must be said that it will be acquired by him. But where a stranger gives it to him, it will unquestionably be acquired for the owner alone. We make the same statement with regard to a freeman who is serving in good faith as a slave, so that, if I should give him anything, it will continue to remain mine. Therefore, Pomponius says, that even if I should give the slave his labor, whatever he acquires by means of it he will, nevertheless, acquire for me.
50. Pomponius, On Plautius, Book VI.
Although whatever we construct on the public shore or in the sea will belong to us, still, a decree of the Praetor must be obtained to permit this to be done; and, indeed, if anyone should do something of this kind which inconveniences others, he can be prevented by force; for I have no doubt that he who puts up the building will have no right to a civil action.
51. Celsus, Digest, Book II.
We can seize a deserter by the law of war.
(1) Any property of the enemy, which may be in our hands, does not belong to the public, but to the first occupant.
52. Modestinus, Rules, Book VII.
We are understood to hold property as our own, whenever, being in possession, we have a right to an exception, or when, having lost the property, we are entitled to an action to recover it.
53. The Same, On Quintus Mucius, Book XIV.
Property acquired by the Civil Law is obtained by us through those who are under our control; as, for example, in the case of a stipulation. Whatever is acquired naturally, as, for instance, possession, we can acquire by the agency of anyone, if we desire to obtain it.
54. The Same, On Quintus Mucius, Book XXXI.
A freeman cannot acquire an estate for us. Anyone who is serving us in good faith as a slave can acquire one for us, if he enters upon it voluntarily, and is fully aware of his own condition. If, however, he should enter upon it by our order, he will neither acquire it for himself nor for us, if he did not have the intention of acquiring it for himself. But, if he had such an intention, he will acquire the estate for himself.
(1) Likewise, a freeman who is serving us in good faith as a slave can legally bind himself, by making a contract with us, which involves a purchase, a sale, or hiring, or leasing.
(2) If he wrongs us in any way, he will be liable to an action for injury, and, in this case, we can collect heavier damages from him than we can from a stranger.
(3) If persons of this kind transact any business with reference to our property, under our direction, or perform any acts as agents during our absence, an action should be granted against them, not only when we have purchased them as slaves, but also if they have been given to us; or have been acquired as dowry, or through having been bequeathed to us; or are due to us from an estate; not only if we think that they are ours, but also where they are slaves owned in common, or are subject to usufruct; so that they do not acquire for us any more than they would have done if they had actually been slaves owned in common, or subject to the usufruct of others.
(4) Whatever a freeman, or a slave belonging to another, or one who serves us in good faith as a slave, cannot acquire for us, the freeman can acquire for hfmself, and the slave belonging to another can acquire for his master; except that a freeman who is serving in good faith can scarcely obtain property by usucaption based on possession, because he who is himself possessed is not understood to have possession. Nor can the owner of a slave of whom we have possession in good faith unconsciously acquire by usucaption what is included in the peculium of the slave, just as he cannot do this by means of a fugitive slave of whom he is not in possession.
55. Proculus, Epistles, Book II.
A wild boar was caught in a trap which you set for the purpose of hunting, and after he was caught, I released him, and carried him away; is it your opinion that I have taken away your wild boar? And if you thought that it was yours, and I should release him and let him go into the woods, would he, in this instance, cease to be yours, or would he still remain your property? If he ceased to be yours, I ask what action you would be entitled to against me, and whether it would be necessary for an action in factum to be granted? The answer was, that we should first take into consideration the trap, and whether it does not make a difference if I set it on public or on private land; and if I set it on private land, whether I did so upon my own or upon that of another, and if I set it upon that of another, whether I did so with the permission of the owner of the said land, or without it. Moreover, it should be considered whether the wild boar was caught in the trap in such a way that he could not release himself, or whether, by struggling longer, he might have been able to escape. I think the conclusion should be that if the wild boar was under my control he became my property; but if you, by your act, restored him to his natural freedom, he ceased to belong to me; and I would be entitled to an action in factum; as was decided in a case where a person threw a cup belonging to another from a ship into the sea.
56. The Same, Epistles, Book VIII.
An island arose in a river opposite to my land. At first the length did not exceed the boundary of the latter, but afterwards the island increased in size, little by little, and projected opposite to the boundaries of my upper and lower neighbors. I ask whether the increase belongs to me, as it adjoins my premises, or whether the rule of law would be the same as it would if the island had been as long in the beginning as it is at present. Proculus answered, if the law of alluvium applies to the river, in which you have stated an island arose opposite to the boundary of your property in such a way that it did not exceed the length of the latter, and the island in the first place was nearer to your premises than to those of him who owned land across the stream, it all becomes yours, and whatever afterwards accrued to the island by way of alluvium also becomes yours, even though the increase was such as to cause the island to extend opposite to the boundaries of your upper and lower neighbors, or even to place it nearer to the property of him owning land across the river.
(1) I also ask, if an island arises near my bank, and afterwards the entire river begins to flow between my land and the said island, after leaving its own bed where the greater portion of it had flowed, whether you have any doubt that the island continues to be mine, and whether, nevertheless, a part of the bed itself which was left by the river will become my property. I request you to write me your opinion on this point. Proculus answered that if the island in the first place was nearer to your land, and the river, having left its principal channel, which it occupied between the island and the land of the neighbor who was on the other side of the stream, began to flow between the said island and your land, the island will continue to be your property; but the bed which was between the island and the land of the neighbor should be divided in the middle, so that the part which was nearer to your island will be understood to belong to you, and that which is nearer to the land of your neighbor will be understood to belong to him. I think that the bed of the river which dried up on the other side of the island has ceased to be an island; but In order that the matter may be better understood, in this instance, the field which was formerly an island will still be designated such.
57. Paulus, On Plautius, Book VI.
Julianus says that nothing can be acquired through a slave donated by a husband, not even by means of the property of the wife to whom the slave was given; for this is only conceded in the case of those who are serving in good faith as slaves.
58. Javolenus, On Cassius, Book XI.
Anything which is taken from the sea does not begin to be the property of him who obtains it until the owner of said property begins to consider it as abandoned.
59. Callistratus, Questions, Book II.
Property purchased by my order does not become mine until the person who bought it has delivered it to me.
60. Scaevola, Opinions, Book I.
Titius placed a movable granary for wheat constructed of wooden boards upon the land of Seius. The question arises, who is the owner of the granary? The answer is that, according to the facts stated, it does not become the property of Seius.
61. Hermogenianus, Epitomes of Law, Book VI.
An estate is often considered in law as an owner, and therefore anything that is acquired by a slave forming part of the same is considered to be acquired by it as his master. It is clear that, in matters in which the act or labor of a person is essential, nothing can be obtained for the estate by the agency of a slave; and therefore, although a slave belonging to the estate can be appointed an heir, still, as the personal order of his master is necessary to enable him to enter upon the same, we must wait until an heir appears.
(1) As an usufruct cannot be created without someone to enjoy it, so it cannot be acquired for an estate through the medium of a slave.
62. Paulus, Manuals, Book II.
There are certain things which cannot themselves be alienated but pass by universal custom; hence a dotal tract of land and property which is not an object of commerce pass to the heir; for although it cannot be bequeathed to him, it, nevertheless, becomes his after his appointment.
63. Tryphoninus, Disputations, Book VII.
If anyone who is under the control of another finds a treasure, it must be said with reference to the person for whom it is acquired that if the former finds it upon the land of another, he will be entitled to half of it; but if he finds it upon the land of his father or master, the whole of it will belong to the latter; (and only half, if it is discovered upon the land of someone else).
(1) If a slave owned in common finds a treasure upon the land of another, will he acquire the same in proportion to the shares of his masters, or will he always acquire it for both of them equally? This case resembles one where property which is derived from the State, or bequeathed by a legacy, or donated by strangers, is delivered to a slave, because a treasure is considered a gift of fortune; hence the part to which the finder is entitled will belong to the joint-owners in proportion to the interest which each one has in the slave.
(2) If a slave owned in common finds a treasure on the land of one of his masters, no doubt can arise with reference to the share to which the master is always entitled, as it belongs to the owner of the land alone. But, on the other hand, it should be considered whether the other joint-owner will not have a right to part of the remaining half, and whether the case is not similar to that where a slave makes a stipulation by the order of one of his masters, or receives something by delivery, or specifically, for the other. The latter may be said to be the better opinion.
(3) Where a slave in whom anyone has the usufruct finds a treasure on the land of him who has the ownership of the slave, will it all belong to him? And if he finds it on the land of another, will he acquire half of it for his owner, or for the usufructuary? In this instance, an examination must be made to ascertain whether the usufructuary can acquire property by the labor of the slave. Suppose that the slave found a treasure by digging in the ground; then it may be said to belong to the usufructuary. If, however, he should suddenly find it concealed in some retired place, while he was doing nothing but walking about, it will belong to the owner of the property. I, however, do not think that half the treasure should belong to the usufructuary, for no one seeks for treasure with the labor of a slave, and it was not on his account that the slave was digging in the earth, but he was doing work for another purpose, and fortune gave him something else. Therefore, if he should find a treasure on the land of the usufructuary himself, I think that the latter will be entitled to only half of it, as the owner of the land, and that the other half will belong to him who has the ownership of the slave.
(4) If a creditor finds a treasure on land which has been hypothecated to him, he will be considered to have found it on the land of another. Hence, he can take half of it himself, and give the other half to the debtor; and when the borrowed money is paid, he can retain the half which he has taken from the treasure by the right of the finder, and not by the right of the creditor. This being the case, if the creditor has begun to hold the land as his own by the right of ownership, under the authority of the Emperor the claim to the pledge will be considered to exist during the time appointed for payment; but, after this time has elapsed, the debtor will be entitled to any treasure found on the land before the money has been paid. Where, however, the amount of the debt is tendered within the time prescribed by law, the creditor must return the treasure, as everything must be restored which belongs to the land, just as in the case where it is returned by a possessor; but he will only be obliged to surrender half of it, because it is settled that the finder is always entitled to half.
64. Quintus Mucius Scaevola, Definitions.
When anyone enters property belonging to another in his accounts for taxation, it does not by any means become his.
65. Labeo, Epitomes of Probabilities, by Paulus.
If I send a letter to you, it will not become yours until it has been delivered to you. Paulus: I am of the opposite opinion, for if you send your secretary to me, and I send you a letter by way of answer, the letter will become yours as soon as I have delivered it to your secretary. The same thing happens in the case of a letter which I send to you merely as a favor; for instance, if you have asked me to recommend you to someone, and I send you a letter for that purpose.
(1) If an island in a river belongs to you, none of it is public property. Paulus: The contrary is true, for in this kind of islands, the banks of a river and the shores of the sea are, to a certain extent, public property; and the rule of law is the same with reference to a field which adjoins the bank, or the shore.
(2) If an island is formed in a public stream, which is near your property, it will belong to you. Paulus: Let us see if this is not false with reference to an island which is not contiguous to the channel of the river, but is suspended by branches, or some other light material, above the stream, so that the soil does not reach it, and the island can change its position. An island of this kind is, to a certain extent, public property, and belongs to the river itself.
(3) Paulus: If an island which is formed in the river becomes yours, and another island is afterwards formed between the first one and the opposite bank, the measure will be taken from your island, and not from your land on account of which the island became your property; for what difference does it make what the character of the land may be, on account of whose situation the ownership of the last island is claimed?
(4) Labeo, in the same Book, says that if anything is formed or built in a public place, it becomes public, and that an island which is formed in a public stream should also be considered public property.
66. Venuleius, Interdicts, Book VI.
When a pregnant woman is bequeathed, acquired by usucaption, or alienated in any other way, and brings forth a child, it will become the property of him who purchased her, and not of him to whom she belonged when she conceived.
Tit. 2. Concerning acquiring or losing possession.
1. Paulus, On the Edict, Book LIV.
Possession, as Labeo says, is derived from the term sedes, or position, because it is naturally held by him who has it; and this the Greeks designate katoxyn.
(1) Nerva, the son, asserts that the ownership of property originated from natural possession, and that the trace of this still remains in the case of whatever is taken on the earth, on the sea, and in the air, for it immediately belongs to those who first acquire possession of it. Likewise, spoils taken in war, and an island formed in the sea, gems, precious stones, and pearls found upon the shore, become the property of him who first obtains possession of them.
(2) We also acquire possession by ourselves.
(3) An insane person, or a ward, cannot begin to acquire possession without the authority of his curator or guardian; because, although the former may touch the property with their bodies, they have not the disposition to hold it, just as where anyone places something in the hands of a man who is asleep. A ward can begin to obtain possession by the authority of his guardian. Ofilius, and Nerva, the son, however, say that a ward cannot begin to obtain possession without the authority of his guardian, for possession is a matter of fact, and not of law. This opinion may be accepted where the ward is of such an age as to be capable of understanding what he is doing.
(4) Where a husband gives possession to his wife for the purpose of making her a donation, several authorities hold that she is in actual possession, as a question of fact cannot be annulled by the Civil Law. And, indeed, what use would it be to say that the wife is not in possession, as the husband immediately lost it when he no longer desired to retain it ?
(5) We also acquire possession by means of a slave or a son who is under our control; and this is the case with property constituting his peculium, even if we are ignorant of the fact, as was held by Sabinus. Cassius and Julianus: because those whom we have permitted to have peculium are understood to be in possession with our consent. Therefore, an infant and an insane person can obtain possession of property forming peculium, and can acquire it by usucaption; an heir also can do this, where a slave belonging to the estate makes a purchase.
(6) We can also acquire possession through anyone whom we possess in good faith as a slave, even though he belongs to another, or is free. If, however, we have possession of him fraudulently, I do not think that we can acquire possession through his agency. He who is in possession of another can neither acquire property for his master nor for himself.
(7) When we are joint-owners of a slave, we can individually acquire property through him to the full amount, as if he were one of our own slaves, if he intends to make the acquisition for one of his masters; just as is the case of acquiring ownership.
(8) We can obtain possession through a slave in whom we have the usufruct in the same way that he is accustomed to acquire property for us by means of his labor; nor does it make any difference if we do not actually possess him, for the same rule applies to a son.
(9) Moreover, he through whom we desire to obtain possession should be such a person as to be able to understand what possession means.
(10) Therefore, if you send a slave, who is insane, to take possession, you will by no means be considered to have acquired it.
(11) If you send a boy under the age of puberty to take possession, you will begin to do so; just as a ward acquires possession, and especially by the authority of his guardian.
(12) There is no doubt that you can obtain possession by means of a female slave.
(13) A ward can acquire possession by means of a slave, whether the latter has arrived at the age of puberty, or not, if he directs him to take possession with the authority of his guardian.
(14) Nerva, the son, says that we cannot acquire possession by means of one of our slaves who is a fugitive, although it has been held that he remains in our possession as long as he is not in that of another; and therefore that, in the meantime, property can be acquired by him through usucaption. This opinion, however, is adopted on account of public convenience, so that usucaption may take place as long as no one has obtained possession of the slave. It is the opinion of Cassius and Julianus that possession may be acquired by such a slave, as well as by those whom we have in a province.
(15) Julianus says that we cannot acquire possession by means of a slave who has been actually given in pledge, for he is held to be possessed by the debtor in one respect, that is to say, for the purpose of usucaption. Nor can the slave who is pledged acquire property for the creditor, because although the latter may have possession of him, he cannot acquire property through him by means of a stipulation, or in any other way.
(16) The ancients thought that we could acquire anything by means of a slave belonging to an estate, because he was part of the said estate. Hence, a discussion arose whether this rule should not be extended farther so that where some slaves were bequeathed, the others could be possessed by the act of one of them. It was also discussed whether this would be the case if they were all purchased or donated together. The better opinion is that I cannot, under such circumstances, acquire possession by the act of one of them.
(17) If a slave is partially bequeathed to an appointed heir, he can acquire possession of the land of the estate for him, in proportion to his share in the said slave, by virtue of the legacy.
(18) The same rule will apply if I order a slave owned in common to accept an estate, because I obtain possession of my share of it on account of my interest in him.
(19) What we have stated with reference to slaves also applies where they themselves desire to acquire possession for us; for if you order your slave to take possession, and he does so with the intention of acquiring the property not for you, but for Titius, possession is not acquired for you.
(20) Possession is acquired by us by means of an agent, a guardian, or a curator. But when they take possession in their own names, and not with the intention of merely rendering their services, they cannot acquire possession for us. On the other hand, if we say that those who obtain possession in our name do not acquire it for us, the result will be that neither he to whom the property was delivered will obtain possession, because he did not have the intention of doing so, nor will he who delivered the article retain it, as he has relinquished possession of the same.
(21) If I order a vendor to deliver the property to my agent, while it is in our presence, Priscus says that it will be held to have been delivered to me. The same rule will apply if I order my debtor to pay to another the sum which is due to me, for it is not necessary to take possession bodily and actually, but this can be done merely by the eyes and the intention. The proof of this appears in the case of property which, on account of its weight, cannot be moved, as columns, for instance; for they are considered to have been delivered if the parties consent, with the columns before them; and wines are held to have been delivered when the keys of the wine-cellar have been handed to the purchaser.
(22) Municipalities cannot possess anything by themselves, because all the citizens cannot consent. They do not possess the forums, and the temples, and other things of this kind, but they make use of them promiscuously. Nerva, the son, says that they can acquire, possess, and obtain by usucaption, the peculium of their slaves; others, however, hold the contrary; as they do not have possession of the slaves themselves.
2. Ulpianus, On the Edict, Book LXX.
The present rule is that municipalities can both hold possession and acquire by usucaption, and that this can be done through a slave, or a person who is free.
3. Paulus, On the Edict, Book LXX.
Moreover, only corporeal property can be possessed.
(1) We obtain possession by means of both the body and the mind, and not by these separately. When, however, we say that we obtain possession by the body and the mind, this should not be understood to mean that where anyone desires to take possession of land he must walk around every field, as it will be sufficient for him to enter upon any part of the land, as long as it is his intention to take possession of it all, as far as its boundaries extend.
(2) No one can obtain possession of property which is uncertain; as, for instance, if you have the intention and desire to possess everything that Titius has.
(3) Neratius and Proculus think that we cannot acquire possession solely by intention, if natural possession does not come first. Therefore, if I know that there is a treasure on my land, I immediately possess it, as soon as I have the intention of doing so; because the intention supplies what is lacking in natural possession. Again, the opinion of Brutus and Manilius, who hold that anyone who has had possession of land for a long time has also had possession of any treasure to be found there, even though he was ignorant of its existence, is not correct. For he who does not know that there is any treasure there does not possess it, although he may have possession of the land; and, if he was aware of its presence, he cannot acquire it by long possession, because he knows that it is the property of someone else. Several authorities hold that the opinion of Sabinus is the better one; namely, that he who knows that there is a treasure on his land does not gain possession of it unless it has been removed from its place, because it is not in our custody. I concur in this opinion.
(4) We can hold possession of the same thing by several different titles; for example, certain authorities think that he who obtains property by usucaption does so not only as a purchaser, but as the owner. For if I am the heir of him who has possession as a purchaser I possess the same property, but as purchaser and as heir; for while ownership can only be established by a single title, this is not the case with possession.
(5) On the other hand, several persons cannot have possession of the same thing without division; for, indeed, it is contrary to nature that while I hold something you should also be considered to hold it. Sabinus, however, says that he who gives property held by a precarious title possesses it himself, as well as he who received it with the risk. Trebatius, also, approves this opinion, for he thinks that one person can have possession justly, and another unjustly, but that both of them cannot possess it either unjustly or justly. Labeo contradicts him, since, in the case of complete possession, it does not make much difference whether anyone has possession justly or unjustly. This is correct, for the same possession cannot be held by two persons, any more than you can be considered to stand on the very place on which I am standing, or to sit exactly where I am seated.
(6) When possession is lost, the intention of the party in possession must be considered. Therefore, although you may be on a tract of land, still, if you do not intend to retain it, you will immediately lose possession. Hence, possession can be lost by the intention alone, although it cannot be acquired in this way.
(7) If, however, you have possession solely by intention, even though another may be on the land, you will still have possession of the same.
(8) If anyone should give notice that a house is invaded-by robbers, and the owner, being overcome with fear, is unwilling to approach it, it is established that he loses possession of the house. But if a slave or a tenant, through whose agency I actually possess property, should either die, or depart, I will retain possession by intention.
(9) If I deliver an article to another, I lose possession of the same; for it has been decided that we hold possession until we voluntarily relinquish it, or are deprived of it by force.
(10) If a slave, of whom I am in possession, asserts that he is free, as Spartacus did, and is ready to maintain his.freedom in court, he will not be considered to be in possession of the master whom he is preparing to oppose. This, however, is only correct when he has remained for a long time at liberty; otherwise, if, from his condition as a slave, he demands his freedom, and petitions for a judicial decision on this point, he, nevertheless, remains under my control, and I hold possession of him by intention, until he has been pronounced to be free.
(11) We possess by intention the places to which we resort in summer and in winter, although we leave them at certain times.
(12) Moreover, we can have possession by intention, and also corporeally, by means of another, as we have stated in the case of a tenant and a slave. The fact that we possess certain property without being aware of it (as is the case where slaves obtain peculium), should not present any difficulty, for we are held to possess it by both the intention and the actual agency of the slaves.
(13) Nerva, the son, thinks that we can possess movable property, with the exception of slaves, as long as it remains in our charge; that is to say, as long as we can obtain natural possession of it, if we wished to do so. For if a flock should be lost, or a vase should fall in such a way that it cannot be found, it immediately ceases to be in our possession, although no one else can obtain possession of it; but the case is different where anything cannot be found which is in my charge, because it still remains in the neighborhood, and diligent search will discover it.
(14) Likewise, wild animals which we shut up in enclosures, and fish which we throw into ponds, are in our possession. But fish which are in a lake, or wild animals that wander in woods enclosed by hedges, are not in our possession, as they are left to their natural freedom; for otherwise, if anyone purchased the woods, he would be considered to have possession of all the animals therein, which is false.
(15) Moreover, we have possession of birds which we have shut up or tamed, and subjected to our control.
(16) Certain authorities very properly hold that pigeons, which fly away from our buildings, as well as bees which leave our hives, and have the habit of returning, are possessed by us.
(17) Labeo and Nerva, the son, have given it as their opinion that I cease to possess any place which a river or the sea has overflowed.
(18) If you appropriate any property which has been deposited with you, with the intention of stealing it, I cease to have possession of the same. If, however, you do not move it from its place, and have the intention of denying that it was deposited with you, several ancient authorities, and among them Sabinus and Cassius, very properly hold that I still retain possession, for the reason that a theft cannot be committed without handling the article, nor can theft be committed by mere intention.
(19) The rule that no one can himself change his title to the possession of property has been established by the ancient authorities.
(20) If, however, he who deposited an article with me, or lent it to me, should sell or give me the same thing, I will not be considered to have changed the title by which I hold possession, since I did not have possession.
(21) There are as many kinds of possession as there are ways of acquiring property which does not belong to us; as, for example, by purchase, by donation, by legacy, by dowry, as an heir, by surrender as reparation for damage committed, by occupancy, as in the case where we obtain property from the land or the sea, or from the enemy, or which we ourselves create. And, in conclusion, there is but one genus of possession, but the species are infinite in number.
(22) Possession may be divided into two kinds, for it is acquired either in good, or in bad faith. The opinion of Quintus Mucius, who included among the different kinds of possession that given by order of a magistrate, for the purpose of preserving the property, or where we obtain possession because security against threatened injury is not furnished, is perfectly ridiculous. For where anyone places a creditor in possession for the purpose of preserving property, or where this is done because security has not been furnished against threatened injury, or in the name of an unborn child, he does not really grant possession, but merely the custody and supervision of the property. Hence, when a neighbor does not give security against threatened injury, and we are placed in charge, and this condition continues for a long time, the Praetor, upon proper cause being shown, will permit us to obtain actual possession of the property.
4. Ulpianus, On the Edict, Book LXVII.
A father immediately possesses whatever his son acquires as a part of his peculium, although he may not be aware that he is under his control. Moreover, the same rule should be adopted even if the son is in possession of another as a slave.
5. Paulus, On the Edict, Book LXIII.
If I owe you Stichus under the terms of a stipulation, and I do not deliver him, and you obtain possession of him in some other way, you are a depredator. Likewise, if I should sell you any property and do not deliver it, and you obtain possession of the same without my consent, you will not do so as a purchaser, but as a depredator.
6. Ulpianus, On the Edict, Book LXX.
We say that he holds anything clandestinely who takes possession of it by stealth, suspecting that the other party, not knowing what he has done, may raise a controversy, and fearing that he will contend his right. He, however, who does not take possession secretly, but conceals himself, is in such a position that he is not considered to have clandestine possession. For not the manner in which he acquired possession, but the beginning of his acquiring it, should be taken into account, nor does anyone begin to acquire possession clandestinely who does so in good faith, with the knowledge or consent of him to whom the property belongs, or for any other good reason. Hence Pomponius says that he obtains clandestine possession who, fearing that some future controversy may arise, and the person of whom he is apprehensive being ignorant of the fact, takes possession by stealth.
(1) Labeo says that where a man goes to a market, leaving no one at home, and on his return from the market finds that someone has taken possession of his house, the latter is held to have obtained clandestine possession. Therefore, he who went to the market still retains possession, but if the trespasser should not admit the owner on his return, he will be considered to be in possession rather by force than clandestinely.
7. Paulus, On the Edict, Book LIV.
If the owner is unwilling to return to the land because he fears the exertion of superior force, he will be considered to have lost possession. This was also stated by Neratius.
8. The Same, On the Edict, Book LXV.
As possession cannot be acquired except by intention and a corporeal act, so in like manner, it cannot be lost, except in a case where the opposite of both of these things takes place.
9. Gaius, On the Edict, Book XXV.
Generally speaking, we are considered to have possession when • anyone as an agent, a host, or a friend, holds it in our name.
10. Ulpianus, On the Edict, Book LXIX.
Where anyone leases property, and afterwards claims it by a precarious title, he is considered to have abandoned his lease. If he claims it at first by a precarious title, and afterwards leases it, he is considered to hold possession under the lease; for whatever is done last should rather be taken into consideration. Pomponius, also, is of this opinion.
(1) Pomponius discusses a very nice question; namely, whether a man who leases land, but claims it by a precarious title, does so, not for the purpose of possessing it, but merely to remain in possession; for there is a great difference, as it is one thing to possess, but quite another to be in possession. Persons placed in possession for the purpose of preserving the property, as legatees or neighbors, on account of threatened injury, do not possess the property but are in possession of the same for the purpose of caring for it. When this is done both of the above ways are merged into one.
(2) Where anyone leases land, and asks to be placed in possession by a precarious title, if he leased it for one sesterce there is no doubt that he holds it at will, as a lease for only that sum is void. If, however, he leases it for a fair rent, it must then be ascertained what was done first.
11. Paulus, On the Edict, Book LXV.
He possesses justly who does so by the authority of the Praetor.
12. Ulpianus, On the Edict, Book LXX.
He who has the usufruct of property is held to possess it naturally.
(1) Ownership has nothing in common with possession, and therefore an interdict Uti possidetis is not refused to one who has begun proceedings to recover the property, for he who does so is not held to have relinquished possession.
13. The Same, On the Edict, Book LXXII.
Pomponius relates that stones were sunk in the Tiber by a shipwreck and were afterwards recovered; and he asks whether the ownership remained unchanged during the time that they were in the river. I think that the ownership, but not the possession, was retained. This instance is not similar to that of a fugitive slave, for the slave is considered to be possessed by us, in order to prevent him from depriving us of possession; but the case of the stones is different.
(1) Where anyone makes use of the agency of another, he should do so with the liabilities and defects attaching to it. Hence, with reference to the time during which the vendor has had possession of the property, we also take into consideration the questions of violence, secrecy, and precarious title.
(2) Moreover, where anyone returns a slave to the vendor, the question arises whether the latter can profit by the time that the slave was in possession of the purchaser. Some authorities think that he cannot, for the reason that the return of the slave annuls the sale; others hold that the purchaser can profit by the time of possession by the vendor, and the vendor by that of the purchaser. This opinion, I think, should be adopted.
(3) If a freeman, or a slave belonging to another who is serving in good faith, purchases property, and a third party acquires possession of the same, neither the alleged slave, when he becomes free, nor the real owner can profit by the time that the property has been in the hands of a bona fide possessor.
(4) Where an heir did not possess in the first place, the question arose whether he cah profit by the possession of the testator. And, indeed, possession is interrupted between the parties to the sale, but many authorities do not hold the same opinion with reference to heirs, as the right of succession is much more extensive than that of purchase. It is, however, more in accordance with a liberal interpretation of law that the same rule should be adopted concerning heirs which applies to purchasers.
(5) Not only does the possession of the testator, which he had at the time of his death, benefit the heir, but also that which he had at any time whatsoever has this effect.
(6) With reference to dowry also, if property has been either given or received as such, the time of possession will profit either the husband or the wife, as the case may be.
(7) Where anyone has transferred property by a precarious title, the question arises whether he can profit by the time during which it was in possession of the person to whom it was transferred. I think that he who transfers it by a precarious title cannot profit by the time of possession, as long as the title continues to be precarious; but if he again acquires possession, and the precarious title is extinguished, he can profit by the possession during the time when the property was held by a precarious title.
(8) In a certain case, it was asked if a manumitted slave has possession of property forming part of his peculium (his peculium not having been given to him) and his master desires to profit by the time it was held by the freedman, possession of the property having been surrendered, whether he can do so. It was decided that he should not be granted the benefit of the time of possession, because his conduct was clandestine and dishonest.
(9) Where property has been restored to me by order of court, it has been decided that I am entitled to the benefit of the time during which it was held by my opponent.
(10) It must, however, be remembered that a legatee is entitled to the benefit of the time when the property was in the hands of the testator. But let us see whether he will be benefited by the time that the property was in the possession of the heir. I think that, whether the legacy was bequeathed absolutely or conditionally, it should be held that the legatee can profit by the time that it was in the possession of the heir, before the condition was fulfilled, or the property delivered. The time that it was in the possession of the testator will always profit the legatee, if the legacy or the trust is genuine.
(11) Moreover, he to whom property is donated has a right to profit by the time it was possessed by the person who made the donation.
(12) Times of possession are applicable to those who themselves have possession of what is their own; but no one will be entitled to this privilege unless he himself has been in possession.
(13) Again, time of occupancy will be of no advantage where the possession is defective; possession, however, which is not defective, causes no injury.
14. Paulus, On the Edict, Book LXVIII.
If my slave, or my son who is under my control, should make a sale, the benefit of the time that he was in my power will be granted; that is, provided he acted with my consent, or had the free administration of his peculium.
(1) Where anything is sold by a guardian or a curator, the purchaser will be entitled to the benefit of the time during which the ward or the insane person possessed the property.
15. Gaius, On the Provincial Edict, Book XXVI.
We are understood to cease to possess property which has been stolen from us, just as if we had been deprived of it by force. But if someone who is under our control should steal anything from us, we will not lose possession of it, as long as it remains in his hands; for the reason that possession is acquired for us by means of persons of this kind. This is why we are considered to possess a fugitive slave; for, as we cannot be deprived of the possession of other things which he has, so, in like manner, we cannot be deprived of him.
16. Ulpianus, On the Edict, Book XXXVII.
Anything which a wife gives to her husband, or a husband to his wife, is held by him or her as its possessor.
17. The Same, On the Edict, Book LXXVI.
If anyone is forcibly dispossessed he should be considered to have remained in possession, as he has the power to recover it by means of an interdict on the ground of violence.
(1) The difference between ownership and possession is that ownership continues to exist, even against the wishes of the owner; but possession is lost as soon as anyone decides that he is unwilling to keep it. Therefore, if a man delivers possession with the intention that the property shall afterwards be returned to him, he ceases to possess it.
18. Celsus, Digest, Book XXIII.
What I possess in my own name I can possess in that of another. For I do not change the title to my possession when I hold it through another, but I cease to possess the property, and I render him possessor by my own act. It is not the same thing to possess personally and to possess in the name of another; for he possesses in whose name possession is held. A representative lends his agency to the possession of another.
(1) If you deliver property to an insane person whom you think is in the enjoyment of his faculties, for the reason that, while in your presence he appeared to be quiet, and have his mind unclouded, although he will not obtain possession, you will "lose it. For it is sufficient to have relinquished possession, even if you did not legally transfer it, as it would be absurd to say that anyone did not intend to relinquish it unless he legally transferred it; and, indeed, it is because he thinks he transferred it that he manifests his intention to give possession.
(2) If I order the vendor, of whom I have made a purchase, to deliver the article at my house, it is certain that I possess the property, even if no one has yet touched it. Or, if the vendor should show me from my tower a neighboring tract of land of which he says that he delivers me the possession, I begin to possess the said land, and just as if I had placed my foot within the boundaries of the same.
(3) If, when I am on one side of my land, some other person enters upon the opposite side, with the intention of clandestinely obtaining possession, I am not considered to have immediately lost possession, as I can easily eject him from the premises, as soon as I am informed of his act.
(4) Again, if an army enters upon land with great violence, it will only gain possession of that portion which it occupied.
19. Marcellus, Digest, Book XVII.
A man who purchased a tract of land from another in good faith afterwards leased the same land from the owner. I ask whether he ceased to possess it or not. I answered that he immediately ceased to do so.
(1) When it is stated by the ancients that no one could himself change the title of his possession, it is probable that they had in mind one who, being in possession of property bodily, as well as by intention, determined to possess it under some other title; and not one who, having relinquished possession under his first title, desired to obtain possession a second time, under another.
20. The Same, Digest, Book XIX.
Where anyone who has lent an article to be used, sells it, and directs it to be delivered to the purchaser, and the borrower does not deliver it; in some instances the owner will be held to have lost possession, and in others he will not. For the owner will only lose possession when the article which has been lent is not returned when he demands it. But what if there was a just and reasonable cause for returning it, and not merely that the borrower desired to retain possession of the property?
21. Javolenus, On Cassius, Book VII.
We can sometimes deliver to another the possession of property which we ourselves do not hold; as, for instance, when he who possesses an article as heir, and, before becoming the owner of the same, claims it under a precarious title from the real heir.
(1) Property which has been thrown overboard in a shipwreck cannot be acquired by usucaption, since it has not been abandoned, but merely lost.
(2) I think that the same rule of law applies to property which has been thrown into the sea to lighten the ship, as that cannot be considered as abandoned which has been temporarily relinquished on account of safety.
(3) When anyone claims the property of another by a precarious title, and leases it from him, possession of the same will revert to the owner.
22. The Same, On Cassius, Book XIII.
He who obtains possession in such a way that he cannot retain it is not considered to have acquired it at all.
23. The Same, Epistles, Book I.
When we are appointed heirs, and the estate has been accepted, all rights to it pass to us; but possession does not belong to us until it is taken naturally.
(1) So far as those who fall into the hands of the enemy are concerned, the law relating to their retention of the rights of property is a peculiar one, for they lose corporeal possession of the same, nor can they be held to possess anything when they themselves are possessed by others; therefore it follows that, when they return, a new acquisition of possession is required, even if no one had possession of their property in the meantime.
(2) I also ask, if I chain a freeman in order to possess him, whether I possess through him everything which he possesses. The answer is that if you claim a freeman, I do not think that you possess him; and, as this is the case, there is much less reason that his property should be possessed by you; nor does the nature of things admit that we can possess anything by the agency of one whom I do not legally have in my power.
24. The Same, Epistles, Book XIV.
Anything that your slave obtains possession of by violence, without your knowledge, you do not possess, because he who is under your control cannot acquire corporeal possession if you are not aware of it; but he can acquire legal possession, as, for instance, he possesses what comes into his hands as part of his peculium. For when a master is said to possess by his slave, there is an excellent reason for this, because what is held by the slave actually, and for a good reason belongs to his peculium, and the peculium which a slave cannot possess as a citizen, but holds naturally, his master is considered to possess. Anything, however, which the slave acquires by illegal acts, is not possessed by the master, because it is not included in the peculium of the slave.
25. Pomponius, On Quintus Mucius, Book XXV.
We cease to possess anything which has been in our possession, and which has been so completely lost that we do not know where it is.
(1) We possess through the medium of our farmers, our tenants, and our slaves. If they die, become insane, or are hired by others, we are understood to still retain possession of them. There is no difference whatever, in this respect, between our tenant and our slave by whose agency we retain possession of property.
(2) When we only possess property by intention, the question arises whether we continue to do so until another actually enters upon it, so that his actual possession becomes preferable; or, indeed (and this is the better opinion) whether we possess the same until, upon our return, someone prevents us from entering; or whether we cease to possess by intention, because we suspect that we will be driven away by the person who has taken possession. This seems to be the more reasonable opinion.
26. The Same, On Quintus Mucius, Book XXVI.
A definite portion of a tract of land can be possessed and acquired by long possession, and also a certain portion which is. undivided and which is obtained by purchase, by donation, or by any other title whatsoever, can also be acquired in this manner. A portion, however, which is not specifically designated can neither be delivered nor received; as, for instance, if I transfer to you "all of such-and-such a tract of land that I am entitled to;" for anyone who is ignorant of the facts can neither transfer nor receive something which is uncertain.
27. Paulus, Epistles, Book V.
If a person who has become insane retains possession of a forest, he does not lose possession of it as long as he remains in that condition, because a lunatic cannot lose the intention of possessing.
28. Tertullianus, Questions, Book I.
If I possess property, and afterwards lease it, do I lose possession? It makes a great deal of difference as to what the intention of the testator was in this case. First, it is important to ascertain whether I know that I am in possession, or am ignorant of the fact; and whether I lease the property as my own, or as belonging to someone else, and, knowing it to be mine, whether I lease it with reference to the ownership, or merely to obtain possession. For if you are in possession of my property, and I purchase the possession of the same from you, or enter into a stipulation with reference thereto, both the purchase • and the stipulation will be valid; and the result is that there will be both a precarious title and a lease, if there was an express intention of only leasing possession, or an intention of claiming it by a precarious title.
29. Ulpianus, On Sabinus, Book XXX.
It has been decided that a ward can lose possession without the authority of his guardian, but he does not cease to possess the property by intention, as he does by the performance of a corporeal act, for he can lose what depends upon an act. The case is different where he desires to lose possession by intention, for he cannot do so.
30. Paulus, On Sabinus, Book XV.
When anyone possesses an entire house, he is not considered to possess the different articles which are contained in the building.
(1) We lose possession in several ways; as, for instance, if we bury a dead body in a place which we possess, for we cannot possess a place which is religious or sacred, even if we despise religion, and continue to hold it as private property. The same rule applies to a freeman who is held as a slave.
(2) Labeo says that the owner of a building loses possession against his will when the Praetor orders possession of it to be taken, where security against threatened injury is not furnished.
(3) Likewise, we do not cease to possess land which is occupied by the sea, or by a river, or if anyone who has possession of property comes under the control of another.
(4) Again, we cease to possess property which is movable, in several ways, as where we are unwilling to possess it, or where for example, we manumit a slave. Moreover, if I possess something and its form is changed, as, for instance, a garment is made out of wool, the same rule will apply.
(5) Anything that I possess by a tenant, my heir cannot possess, unless he actually obtains possession of it, for we can retain, but we cannot acquire possession by intention alone. What I possess as a purchaser, however, my heir can obtain by usucaption through the agency of a tenant.
(6) If I lend you anything, and you lend it to Titius, and he thinks that it is yours, I will still continue to possess it. The same rule will apply if my tenant sublets my land, or he with whom I have deposited property should again deposit with another; and the same rule must be observed, even if this is done by several persons.
31. Pomponius, On Sabinus, Book XXXII.
If a tenant leaves the land without the intention of relinquishing possession, and returns, it is held that the same lessor holds possession.
32. Paulus, On Sabinus, Book XV.
Although a ward is not bound without the authority of his guardian, we can still retain possession by him.
(1) If a lessee sells the property, leases it from the purchaser, and pays rent to both lessors, the first one who rented it legally retains possession through the lessee.
(2) An infant can lawfully possess anything if he obtains it with the consent of his guardian, for the want of judgment of the infant is supplied by the authority of the guardian. This opinion has been adopted on account of its convenience, for otherwise, an infant who receives possession of property would not know what he was doing. A ward can, nevertheless, obtain possession without the authority of his guardian, and an infant can possess peculium through the medium of a slave.
33. Pomponius, On Sabinus, Book XXXII.
Even if the vendor of a tract of land should direct someone to place a purchaser in full possession of the same, the purchaser himself cannot legally acquire possession before this is done. Likewise, if a friend of the vendor, not being aware that the latter is dead, should place the purchaser in possession without being prevented from doing so by the heirs, possession will legally be delivered. But if he did this, knowing that the owner was dead, or if he was aware that the heirs were unwilling that it should be done, the contrary rule will apply.
34. Ulpianus, Disputations, Book VII.
If you place me in full possession of the Cornelian Estate, and I think that I am placed in possession of the Sempronian estate, but enter upon the Cornelian estate, I do not acquire possession unless we are only mistaken in the name, and agree with reference to the property. Since, however, we agree with reference to the property, a doubt may arise whether you do not lose possession; because Celsus and Marcellus say that we can lose and change possession merely by intention. And if possession can be acquired by intention, can it also be acquired in this instance? I do not think that a person who is mistaken can acquire it. Therefore, he who only relinquishes possession, as it were conditionally, does not lose it.
(1) If, however, you deliver possession, not to me but to my agent, it should be considered whether possession will be acquired by me if I make a mistake, but my agent does not. As it is held that it can be acquired by a person who is ignorant of the facts, it can also be acquired by one who is mistaken. But if my agent is mistaken, and I am not, the better opinion is that I will acquire possession.
(2) My slave also acquires possession for me without my knowledge. For even a slave belonging to another, as Vitellius says, can acquire possession for me, if he takes the property in my name, whether he is possessed by me or by no one at all. This also should be admitted.
35. The Same, On All Tribunals, Book V.
A controversy for possession is terminated as soon as the judge decides which party is in possession. This is done in such a way that he who loses possession can take the position of plaintiff, and then bring an action against the owner.
36. Julianus, Digest, Book XIII.
He who transfers a tract of land to a creditor, by way of pledge, is understood to retain possession of the same. But even if he should claim it by a precarious title, he can also acquire a good one by lapse of time; for, as possession by the creditor does not interfere with prescription, there is less reason that the claim of the debtor under a precarious title should present no obstacle, since he has much better right who claims property by a precarious title and is in possession, than he who has no possession at all.
37. Marcianus, On the Hypothecary Formula.
When land is given in pledge, and possession is delivered, and the property has then been leased by the creditor, and it is agreed that he who encumbered it shall be considered as a tenant in the country, and as a lessee in the city, the creditor is considered to possess the property through the debtor who has leased it.
38. Julianus, Digest, Book XLIV.
A master who writes to his absent slave to remain at liberty has not the intention of immediately relinquishing possession of the slave; but his intention is rather deferred until the time when the slave will be informed of the fact.
(1) When anyone delivers possession of land in such a way that he does not intend it to be given us, unless the land belongs to him, he is not considered to have delivered possession if the land is the property of another. It should, moreover, be understood that possession can be delivered conditionally, just as property is transferred under a condition and does not pass to the person who receives it unless the condition is complied with.
(2) Where a man who sold a slave to Titius delivers him to his heir, the latter can obtain possession of the estate by means of the slave; not for the reason that the slave came into his hands from the estate, but because he is entitled to an action on purchase. For if a slave is due to a testator in accordance with the terms of a stipulation, or of a will, and the heir receives him, he will not be forbidden to obtain possession of the property of the estate by means of the slave.
39. The Same, On Minicius, Book II.
I think that it makes a difference with what intention property is deposited in the hands of an arbiter; for if this is done for the purpose of relinquishing possession, and is clearly proved, the possession of the arbiter will be of no benefit to the parties for the purpose of usucaption. If, however, the property was deposited for safe-keeping, it is settled that he who gains the case can profit by the possession, in order to acquire the property by prescription.
40. Africanus, Questions, Book VII.
If your slave ejects you from land, which I gave you in pledge while it was in my possession, it is held that you continue to be in possession of the same, as you still retain possession by this same slave.
(1) If the tenant by whom the owner holds possession should die, it has been decided for the sake of public convenience that possession is retained and continued through the agency of the tenant. It should not be held that possession is immediately interrupted by the death of the latter, for this is not the case unless the owner neglects to take possession. A different opinion must be held, if the tenant voluntarily relinquishes possession. This, however, is only true where a stranger has not, in the meantime, been in possession, but it always remains as part of the estate of the tenant.
(2) I purchased your slave from Titius in good faith, and possessed him after he had been delivered, and then when I ascertained that he was yours, I concealed him, to prevent you from claiming him. It is held that, on his account, I should not be considered to have possessed him clandestinely during this time. For, on the other hand, if I should knowingly purchase your slave from someone who is not his owner, and should then retain clandestine possession of him, even after I notified you, I would not, for that reason, cease to have clandestine possession of the slave.
(3) If I clandestinely remove my own slave from a bona fide purchaser, it has been decided that I ought not to be considered to have clandestine possession of him, because the owner does not hold him under a precarious title, nor under a lease of his own property; and there are no other methods of acquiring clandestine possession.
41. Paulus, Institutes, Book I.
Anyone who enters upon a tract of land as a friend, by the right of familiarity, is not considered to possess it, because he did not enter upon it with the intention of doing so, although he may have actual possession of the land.
42. Ulpianus, Rules, Book IV.
Where a slave owned in common is possessed by one of the joint-owners in the name of all, he is understood to be possessed by all.
(1) Where an agent purchases property by the direction of his principal, he immediately acquires possession of it for him. This is not true if he purchases it on his own responsibility, unless his principal ratifies the sale.
43. Marcianus, Rules, Book III.
Julianus says that if anyone buys a tract of land, a small part of which he knows to belong to another, and he was aware that the said small part has been divided; he can acquire the remainder of the land by prescription. If, however, the said part was undivided, he can also acquire the land by prescription, although he may not know where the part in question was situated; because what he thought belonged to the vendor passes by prescription to the purchaser, without any damage resulting.
(1) Pomponius, also, in the Fifth Book of Various Passages, says that if the purchaser knows, or thinks that the usufruct of the property belongs to another, he can still obtain the latter by long-continued possession.
(2) The same rule applies, as he says, if I purchase property which I know has been pledged.
44. Papinianus, Questions, Book XXIII.
Where a man, about to start upon a long journey, buried his money in the ground for safe-keeping, and, having returned, could not remember the place where the treasure was concealed, the question arose whether he had ceased to possess it, or if, afterwards, he should find the place, whether he would immediately begin to acquire possession. I gave it as my opinion that, as the money was not said to have been hidden for any other purpose than safe-keeping, he who concealed it should not be considered to have been deprived of the right of possession; nor did the failure of his memory prejudice that right, as no one else had appropriated the money. On the other hand, it might be held that we lose possession of our slaves during the time when we no longer see them. Nor does it make any difference whether I hide the money on my own premises, or on those of another; for if anyone should hide his property on my premises, I would not obtain possession of it unless I did so where it was above ground. Hence, the fact that the land belongs to another does not deprive me of my own possession, as there is no difference whether I have possession above, or under ground.
(1) The question arises why the possession of property belonging to his peculium is acquired by a slave for his master, without the knowledge of the latter. I said that this rule had been adopted on the ground of public convenience, to prevent masters from inquiring constantly about property belonging to the peculium of their slaves, and the reason why it was found there; so that, in this instance, it could not be held that possession was acquired by intention alone. For if any property is obtained which does not form part of the peculium, the knowledge of the master is necessary, but possession is acquired by the mere act of the slave.
(2) These matters having been explained, the question of losing possession comes up for discussion; and I hold that it makes a great deal of difference whether we hold possession by ourselves or through the agency of others. For, so far as the possession which we hold by our own act is concerned, it can be lost either by intention, or by our act, provided we relinquish it with the expectation of no longer holding it; but possession to property which is acquired by the act of a slave or a tenant is not lost, unless another has appropriated the property; and this can also occur even without our knowledge. There is still another distinction applicable to loss of possession, for the possession of winter and summer resorts is retained by mere intention,
45. The Same, Definitions, Book II.
Although we do not leave a slave or a tenant there when we depart.
46. The Same, Questions, Book XXIII.
Even if another may have been entered upon property with the intention of taking possession of the same, the former possessor is held to retain possession, as long as he is ignorant that it has been taken by another. For, as the bond of an obligation is released in the same way that it has been made, so, where possession is held by intention alone, it should not be taken away without anyone's knowledge.
47. The Same, Questions, Book XXVI.
If you decide not to return movable property which has been deposited with you, or of which you have been given possession as a loan, it has been held that the other party will lose possession immediately, even if he is not aware of your intention. The reason for this is, that where the care of movable property is neglected, or abandoned, even though no one else appropriates it, the former possession is usually prejudiced. This was stated by Nerva, the son, in his Books on Usucaption. He also says that the case is different, if proper care was not used, where a slave had been lent; for possession of him only will continue as long as no one else seizes him, that is to say, because a slave can retain possession for his master if he has the intention of returning to him; and we can likewise obtain possession of other property by his agency. Therefore, possession of such objects as are destitute of reason, or life, is immediately lost, but that of slaves is retained, if they have the intention of returning.
48. The Same, Opinions, Book X.
A certain man donated a tract of land together with slaves attached to the same, and stated in a letter that he delivered possession of the property. If one of the slaves, who was donated, should come into the hands of him who received the house, and be afterwards sent back to the land, it has been decided that possession of the land and of the other slaves has been acquired by means of those above mentioned.
49. The Same, Definitions, Book II.
Possession can be acquired by me through a slave in whom I have the usufruct if this is done by means of my property, or the services of the slave; because the latter is naturally held by the usufructuary, and possession borrows many things from the law.
(1) Those who are under the control of others can hold property belonging to their peculium, but they cannot possess it; for the reason that possession is not only a matter of fact, but is also one of law.
(2) Although possession through an agent can be acquired by a principal without his knowledge, usucaption can only benefit one who knows that possession has been taken; still, an action for eviction is not granted to the principal against the vendor without the consent of the agent, but he can be compelled to grant it by an action on mandate.
50. Hermogenianus, Epitomes of Law, Book V.
Neither possession nor ownership, nor anything else whatsoever, can be acquired through the use of my property by one whom I have been induced to erroneously consider my son under my control.
(1) Possession can be acquired for us by a runaway slave, if he has not been taken possession of by another, and does not think that he is free.
51. Javolenus, On the Last Works of Labeo, Book V.
Labeo says that we can acquire possession of certain things by intention; as, for instance, if I purchase a pile of wood, and the vendor directs me to remove it, it will be considered to have been transferred to me, as soon as I place a guard over it. The same rule applies to a sale of wine where all the jars are together. But, he says, let us see whether this is an actual delivery, because it makes no difference whether I order the custody of the property to be delivered to me, or to someone else. I think that the question in this case is, that even if the pile of wood or the jars have not been actually handled, they should, nevertheless, be considered to have been delivered. I do not see that it makes any difference whether I, myself, take charge of the pile of wood, or someone else does so by my direction. In both instances, whether or not possession was obtained must be determined by the character of the intention.
52. Venuleius, Interdicts, Book I.
The titles to the possession and usufruct of property must not be confused, just as possession and ownership should not be intermingled. For possession is prevented if another has the use and enjoyment, nor can the usufruct of one person be computed if another is in possession of the property.
(1) It is clear that when anyone is forbidden to build, he is also forbidden to retain possession.
(2) One method of placing a person in possession of property is to prohibit any violence being manifested toward him when he enters upon it. For the judge orders the adverse party immediately to surrender and relinquish possession, which is much more decisive than to order him merely to restore it.
53. The Same, Interdicts, Book V.
Possession which is defective is usually only advantageous as against strangers.
Tit. 3. Concerning the interruption of prescription, and usucaption.
1. Gaius, On the Provincial Edict, Book XXI.
Usucaption was introduced for the public welfare, and especially in order that the ownership of certain property might not remain for a long time, and almost forever, undetermined; as a sufficient time is granted to owners to make inquiry after their property.
2. Paulus, On the Edict, Book LIV.
Usurpation is the interruption of usucaption. Orators call usucaption frequent use.
3. Modestinus, Pandects, Book V.
Usucaption is the addition of ownership by means of continuous possession for a time prescribed by law.
4. Paulus, On the Edict, Book LIV.
In the next place, we must speak of usucaption; and, in doing so, we must proceed in regular order, and examine who can acquire property by usucaption, what property can be acquired in this manner, and what time is necessary.
(1) The head of a household can acquire by usucaption; a son under paternal control can also do so; and this is especially the case where, as a soldier, he obtains by usucaption property acquired during military service.
(2) A ward can acquire property by usucaption if he takes possession of it with the consent of his guardian. If he takes possession without the consent of his guardian, but still has the intention of doing so, we say that he can acquire the property by usucaption.
(3) An insane person, who takes possession before his insanity appears, acquires the property by usucaption; but such a person can only acquire it in this manner if he has possession by a title through which usucaption may result.
(4) A slave cannot hold possession as an heir.
(5) If the crops, the children of slaves, and the increase of flocks did not belong to the deceased, they can be acquired by usucaption.
(6) The Atinian Law provides that stolen property cannot be acquired by usucaption, unless it is restored to the control of the person from whom it was stolen; and this must be understood to mean that it must be restored to the owner, and not to him from whom it was secretly taken. Therefore, if property is stolen from a creditor to whom it was lent or pledged, it should be returned to the owner.
(7) Labeo also says that, if the peculium of my slave is stolen without my knowledge, and he afterwards recovers it, it will be held to have been restored to my control. It is more accurate to say, provided I was aware that the property had been returned to me. For it is not sufficient for the slave merely to recover the property which he had lost without my knowledge, but I must also have intended it to form part of his peculium, for if I did not wish this to be done, it will then be necessary for me to obtain actual control of it.
(8) Hence, if my slave steals anything from me, and afterwards returns the article to its place, it can be acquired by usucaption as having been restored to my control, just as if I did not know that it had been stolen; for if I did know it, we require that I should be aware that it had been returned to me.
(9) Moreover, if the slave should retain as part of his peculium the same property which he stole, it will not be considered to have been returned to me (as is stated by Pomponius), unless I have possession of it in the same way that I did before it was stolen; or if, when I learned that it had been taken, I consented that the slave should include it in his peculium,.
(10) Labeo says that if I deposit any property with you, and you sell it for the sake of gain, and then, having repented, you repurchase it, and retain it in the same condition in which it formerly was, whether I am ignorant or aware of the transaction, it will be considered to have been restored to my control, according to the opinion of Proculus, which is correct.
(11) Where the property of a ward is stolen, it must be held to be sufficient if his guardian was aware that it had been returned to the house of the ward. In the case of an insane person, it will be sufficient if his curators know that the property has been returned.
(12) Property must be considered to have been restored to the control of the owner when he recovers possession of it in such a way that he cannot be deprived of it. This must be done just as if the property was his; for if I purchase an article, not knowing that it has been stolen from me, it will not be held to have been restored to my control.
(13) Even if I should bring suit to recover property which has been stolen from me, and I accept payment of the amount at which it was appraised in court, it can be acquired by usucaption, even though I did not obtain actual possession of it.
(14) The same rule must be said to apply even if the stolen property has been delivered to another with my consent.
(15) An heir who succeeds to the rights of the deceased cannot acquire by usucaption a female slave whose mother had been stolen, and was found among the property of the deceased, provided the latter was not aware of the fact, if she conceived and brought forth the child while in his possession.
(16) If my slave steals a female slave and gives her to me in return for his freedom, the question arises whether I can acquire by usucaption the child of said female slave who conceived while in my possession. Sabinus and Cassius do not think that I can, because the illegal possession which is obtained by the slave would prejudice his master; and this is correct.
(17) If, however, anyone gives me a female slave who has been stolen, in order to induce me to manumit my slave, and the female slave conceives and has a child while in my possession, I cannot acquire that child by usucaption. The same rule will also apply if anyone gives me the said female slave in exchange, or by way of payment, or as a present.
(18) If the purchaser ascertains before she has the child that the female slave belongs to another, we say that he cannot acquire the child by usucaption, but he can do so if he was not aware of this. If, however, he should learn that she belongs to someone else, when he had already begun to acquire the child by usucaption; we must take into consideration the beginning of the usucaption, as has been decided in the case of property that has been purchased.
(19) If stolen sheep have been sheared while in possession of the thief, the wool cannot be acquired by usucaption. The rule is otherwise, however, in the case of a bona fide purchaser, as there is no need of usucaption, since the wool is a profit, the right to which immediately vests in the purchaser. The same rule can be said to apply to lambs, if they have been disposed of. This is true.
(20) If you make a garment of stolen wool, the better opinion is that we should consider the original material, and therefore the garment is stolen property.
(21) If a debtor steals anything given by him in pledge, and sells it, Cassius says that it can be acquired by usucaption, because it is considered to have come under the control of the owner who pledged it, although an action for theft can be brought against him. I think that this opinion is perfectly correct.
(22) If you forcibly deprive me of the possession of land, and you yourself do not take possession, but Titius, finding it unoccupied, does, he can acquire it by usucaption through lapse of time, for although it is true that an interdict on the ground of violence will lie, because I have been forcibly ejected; still, it is not true that Titius obtained possession by violence.
(23) But if you should eject me from land which I possess in bad faith, and sell it, it cannot be acquired by usucaption, for while it is true that possession has been obtained by force, this has not been done by the owner.
(24) The same rule must be said to apply to the case of one who ejected a person having possession as the heir, although he knew that the land formed part of an estate.
(25) If one man should knowingly eject another who is in bona fide possession of land belonging to someone else, he cannot obtain it by usucaption, because he forcibly obtained possession.
(26) Cassius says that if the owner of land forcibly ejects the party in possession, the land will not be considered to have again been brought under his control, as he who was ejected can recover possession of it by means of an interdict based on violence.
(27) If I have a right of way through your land, and you forcibly prevent me from using it, I will lose the right of way by not making use of it for a long time, because an incorporeal right is not considered susceptible of possession; and no one can be said to be deprived of a right of way, that is to say, of a mere servitude, in this manner.
(28) Likewise, if you take possession of land which is vacant, and afterwards prevent the owner from entering upon the same, you will not be considered to have taken forcible possession of the property.
(29) It is true that a release of a servitude can be acquired by usucaption, because the Scribonian Law, which established a servitude, prohibited the usucaption of one; but it does not grant a release if the servitude has already been extinguished. Hence, if I owe you a servitude, for instance, that which prevents me from building my house any higher, and I have kept it built higher for the prescribed time, the servitude will be extinguished.
5. Gaius, On the Provincial Edict, Book XXI.
Possession is naturally interrupted when anyone is forcibly deprived of it, or the property is stolen from him; in which instance possession is interrupted, not only with reference to him who stole the property, but with reference to everyone else. Nor, under these circumstances, does it make any difference whether he who obtained legal possession is the owner of the property or not. Nor is it material whether the person in question possesses the property as the owner, or merely for the purpose of profiting by it.
6. Ulpianus, On the Edict, Book XI.
In the case of usucaption, the time is not reckoned from moment to moment, but we compute the entire last day of the prescription.
7. The Same, On Sabinus, Book XXVII.
Therefore, anyone who begins to have possession at the sixth hour of the day of the Kalends of January will complete the usucaption on the sixth hour of the night preceding the Kalends of January.
8. Paulus, On the Edict, Book XII.
Labeo and Neratius held that all the property which slaves have acquired as their peculium can be obtained by usucaption, because it is obtained in this way by their owners, even without the knowledge of the latter. Julianus says the same thing.
(1) Pedius says that a person who cannot acquire anything by usucaption in his own name cannot acquire it by his slave.
9. Gaius, On the Provincial Edict, Book IV.
Corporeal property is especially subject to usucaption, with the exception of sacred and holy things, and such as are the public property of the Roman people, and of cities, as well as persons who are free.
10. Ulpianus, On the Edict, Book XVI.
Where property belonging to another has been purchased in good faith, the question arises in order that the usucaption may run, whether, for the preservation dt good faith, it should date from the beginning of the purchase, or from the time of delivery. The opinion of Sabinus and Cassius, which is that it dates from the time of delivery, has been adopted.
(1) It is our practice that servitudes can never, of themselves, be acquired by usucaption, but that this can be done along with the buildings upon which they are imposed.
(2) Scaevola, in the Eleventh Book of Questions, says that Marcellus thought that if a cow should conceive while in the possession of a thief, or of his heir, and bring forth while in the possession of his heir, the calf, separated from its mother, cannot be acquired by usucaption by the heir; just as he says this cannot be done with the child of a female slave. Scaevola, however, states that, in his opinion, the child can be acquired by usucaption, because it does not form part of the stolen property. If, however, it should be a part of it, it can be acquired by usucaption, if it was born while in possession of a bona fide purchaser.
11. Paulus, On the Edict, Book XIX.
Neither a slave, nor a master who is in the power of the enemy, can acquire possession through the medium of his slave.
12. The Same, On the Edict, Book XXI.
If you purchase property from one whom the Praetor has forbidden to alienate it, and you are aware of the fact, you cannot acquire it by usucaption.
13. The Same, On Plautius, Book V.
We cannot acquire by usucaption property which has been taken in pledge, because we possess it in behalf of another.
(1) It has been decided that anyone who has purchased property in good faith from an insane person can acquire it by usucaption.
(2) If I direct you to buy a tract of land, you can obtain it by usucaption, after it has been delivered to you for this reason, although you cannot be considered to possess it as yours, as the fact that you are liable to an action on mandate makes no difference.
14. The Same, On Plautius, Book XIII.
The time during which the vendor held property before selling it is an advantage to the purchaser, for if the vendor obtained possession afterwards, this will be of no benefit to the purchaser.
(1) With reference to property which is bequeathed, the legatee is considered to occupy the same position as the heir, so far as the benefit of the time during which the testator possessed the property is concerned.
15. The Same, On Plautius, Book XV.
If a person who possessed the property as a purchaser is taken prisoner by the enemy before usucaption has taken place, let us see whether his heir will obtain any benefit from the usucaption, for it is interrupted; and if it is of no advantage to him on his return, how can it profit his heir ? It is, however, true that he has ceased to possess the property, and therefore the right of postliminium will not benefit him to the extent that he may be considered to have acquired it by usucaption. If the slave of a person who was in the power of the enemy should purchase property, Julianus says that the usucaption of the same will remain in abeyance; for if the owner returns, the usucaption is understood to have taken place. If, however, the owner should die while in the hands of the enemy, it may be doubted whether the property will belong to his successors under the Cornelian Law. Marcellus thinks that the legal fiction is capable of a broader application, for one who has returned under the law of postliminium, has a better right to things which have been acquired by his slaves than to those which he himself acquired, or which he possessed by means of his slaves before he was captured by the enemy; as it has been decided, in some instances, that the estate takes the place of the person, and therefore that the right of usucaption is transmitted to the heirs of prisoners of war.
(1) If a slave of whom I am in possession should take to flight, and represent himself to be free, he will be considered as still in the possession of his master. This, however, must be understood to apply where, if he is caught, he is not prepared to maintain in court that he is free; for, if he is ready to do so, he will not be considered to be possessed by his master, against whom he is about to appear as an adversary.
(2) If a possessor of property in good faith should ascertain that it belongs to another, after having lost possession of it before the time necessary for usucaption has elapsed, and he should obtain possession of it a second time, he cannot acquire it by usucaption, because the beginning of the second possession is defective.
(3) If property to which we are entitled is delivered to us in accordance with the terms of a will, or under a stipulation, we must take into account the time when it was delivered, because property can be made the subject of a stipulation, even if it does not belong to the promisor.
16. Javolenus, On Plautius, Book IV.
When suit is brought for the production of a slave who has been given in pledge, proceedings must be instituted against the creditor, and not against the debtor; for the reason that he who gave the slave in pledge only possesses him by the right of usucaption. In all other respects, however, he who receives property possesses it, and this is true to such an extent that the possession of him who gives property in pledge can also be included.
17. Marcellus, Digest, Book XVII.
If, in a case in partition, I begin to hold possession under a judgment rendered by mistake, which has reference to the land of others supposed to be owned in common, I can acquire the said land by holding it for a long time.
18. Modestinus, Rules, Book V.
Although usucaption is of no advantage as against the Treasury, it has been decided that where property without an owner has not yet been reported to the Treasury, and a purchaser appears who has bought land forming part of said property, he can legally acquire it by long-continued possession.
19. Javolenus, Epistles, Book I.
If you purchase a slave with the understanding that, if some condition should be complied with, the sale will be void, and the slave is delivered to you, and fulfillment of the condition afterwards annuls the transaction, I think that the time during which the slave was in possession of the purchaser should benefit the vendor, because a sale of this kind is similar to the redhibitory clause for the return of property, which is introduced into contracts for sales; and, in a case of this kind, I have no doubt that the time that the purchaser held the property will benefit the vendor, as properly speaking, no sale took place.
20. The Same, Epistles, Book IV.
The possession of a testator will profit the heir if, in the meantime, no one else had possession.
21. The Same, Epistles, Book VI.
I rented land to a man against whom I was about to assert my claim, founded on prescription, as an heir. I ask whether you think that this lease has any force or effect. If you think that it has no effect, do you believe that the right of usucaption of said land will, nevertheless, continue to exist? I also ask, if I should sell the land, what is your opinion of the points which I have just raised? The answer was that if he who is in possession of the land, as heir, leased it to the owner of the same, the lease is void, because the owner rented his own land. Hence it follows that the lessor does not retain possession, and prescription based upon long occupancy will not continue to exist. The same rule of law applies to a sale, because, as in the case of a lease, the purchase of one's own property is void.
22. The Same, Epistles, Book VII.
An heir and an estate, although they have two different names, are still regarded as one person.
23. The Same, Epistles, Book IX.
I do not think that he who has purchased a house possesses anything but the house itself. For if he is considered to possess the different things of which the house is built, he does not possess the house itself; as, after the materials of which it is composed are separated, they cannot be understood to represent the entire house. Add to this, if anyone should say that the separate materials of which the house was composed are possessed, it will be necessary to hold that there will be ground for the prescription of the movable property composing the house, during the time fixed for that purpose, and that a longer time will be necessary to acquire by usucaption the soil on which it stands. This is absurd, and it is by no means in conformity to the Civil Law that the same thing should be obtained by usucaption at different times; as, for example, since a house is composed of two different things, the soil, and what is erected upon it, that they united should change the time established for the usucaption of all immovable property by long-continued possession.
(1) If you should be judicially deprived of a column forming part of your house, I think that you will be entitled to an action on purchase against the vendor, and, in that way, can hold the entire property.
(2) If, however, the house has been demolished, in order that the movable property may be entirely acquired by usucaption, where it has been in possession for the term prescribed for that purpose, the time during which it composed the building cannot be legally reckoned; for, as you were not in possession of the materials alone and apart from the building, so, the house having been demolished, you cannot separately and distinctly possess the materials of which it was constructed; nor can it be held that the same property was possessed at the same time as both real estate and personalty.
24. Pomponius, On Quintus Mucius, Book XXIV.
When the law forbids usucaption, the good faith of the possessor is of no advantage to him.
(1) Sometimes usucaption is an advantage to the heir, even though it was not begun to be acquired by the deceased: as, for instance, where the defect, which does not arise from the person but from the property itself, has been remedied. It arises from the property, for example, where it has ceased to belong to the Treasury, or possession of it has been obtained through theft or violence.
25. Licinius Rufinus, Rules, Book I.
Usucaption cannot take place without possession.
26. Ulpianus, On Sabinus, Book XXIX.
A building can never be acquired by lapse of time separate from the ground on which it stands.
27. The Same, On Sabinus, Book XXXI.
Celsus, in the Thirty-fourth Book, says that they are mistaken who believe that anyone who has obtained possession of property in good faith can acquire it, by usucaption, as his own; and that it makes no difference whether or not he purchased it, or it was given to him, provided he thinks it was purchased by, or given to him; for the reason that usucaption does not apply to a legacy, a gift, or a dowry, if no donation, dowry, or legacy exists. The same rule is held to be applicable to the case of an appraisement made in court, for if the party did not agree to the appraisement, he cannot acquire the property by usucaption.
28. Pomponius, On Sabinus, Book XVII.
It is established that where property is delivered to the slave of an insane person, or an infant, the latter can obtain it by usucaption through the slave.
29. The Same, On Sabinus, Book XXII.
If I am the sole heir to an estate, but believe that you are an heir to half of the same, and I deliver half of the estate to you, it is very probable that you cannot acquire the property by usucaption, because what is in possession of an heir cannot be obtained in this way by another, as the heir; and you have no other ground for possession. This is only true when done under the terms of a settlement. We hold that the same rule applies if you think that you are the heir; for, in this instance, the possession of the true heir will prevent you from obtaining the property by usucaption.
30. The Same, On Sabinus, Book XXX.
It is asked whether a mixture of different things interrupts the usucaption which has begun to run with reference to each of them. There are three kinds of things which can be divided; first, those which are included in a substance of the same nature, styled by the Greeks hynwmenon, that is to say united, as a slave, a piece of timber, a stone, and other property of this kind. Second, things which are joined by contact, that is to say, which have coherence, and are connected, as a house, a ship, a cupboard. Third, such as are formed of distinct objects, as different bodies which are not united but are included under a single appellation, for instance, a people, a legion, a flock. No question can arise with reference to the usucaption of the first of these, but there is doubt as far as the second and third are concerned.
(1) Labeo, in the Book of Epistles, says that where anyone who has only ten days left, in which to acquire the usucaption of tiles or columns, uses them in building a house, he will still be entitled to them by usucaption if he has possession of the house. What course must be pursued in case that articles are not joined to the soil, but remain movable property, as a precious stone set in a ring? In this instance, it is true that both the gold and the precious stone are in possession, and can be acquired by usucaption, if possession of both continues to exist.
(2) Let us take into consideration the third class of things. An entire flock is not acquired by usucaption in the same way as distinct articles, or as those which are united, are. What, then, must be done? Although the nature of a flock is that it continues to exist by the addition of new animals, usucaption, nevertheless, cannot take place with respect to the flock as a whole, but it follows the same rule as possession, which applies to the separate individuals composing it. For if other animals are purchased and mingled with the flock for the purpose of increasing it, the title to the latter by possession will not be changed; so that if the remainder of the flock belongs to me, the sheep which have been purchased are also mine; but each of the latter will be held by its own title, so that if any of those included in the flock have been stolen, they cannot be acquired by usucaption.
31. Paulus, On Sabinus, Book XXXII.
In cases of usucaption, an error of law never benefits the possessor. Hence Proculus says that, if through mistake, a guardian does not, at the beginning of a sale or for a long time after it has been concluded, grant authority to his ward to make it, there will be no ground for usucaption, because an error of law exists.
(1) In an usucaption of movable property, the time is computed continuously.
(2) A slave, even though he may be at liberty, possesses nothing, and another does not possess anything by him. If, however, he should obtain possession in the name of another, while he is at liberty, he will acquire the property for him in whose name he obtained it.
(3) If my slave, or my son, holds anything in my name, or as part of his peculium, so that I am not aware that I possess it, or even that I am entitled to acquire it by usucaption, and he becomes insane, then it must be understood that the property remains in the same condition, and that I still retain possession of it, and have a right to usucaption, just as these rights continue to exist in our favor, even when the parties are asleep. The same rule must be said to apply to the case of a lessee, or a tenant through whom we acquire possession.
(4) Where anyone has obtained possession either by violence, clandestinely, or under a precarious title, and afterwards becomes insane, the possession and the title remain unchanged with reference to the property which the insane person holds precariously; just as, by means of an interdict, and by an action to obtain possession, we can legally institute proceedings in the name of an insane person, on account of the possession which he himself obtained before his reason became impaired, or acquired by means of another after his insanity had begun.
(5) The time which intervened before the estate was accepted, or after this was done, will benefit the heir in usucaption.
(6) Julianus says that if the deceased had made a purchase, and the heir thinks that he was in possession of the same as a donation, he can acquire the article by usucaption.
32. Pomponius, On Sabinus, Book XXXII.
If a thief should purchase the stolen property from its owner, and hold it as delivered to him, he ceases to possess it as having been stolen, and begins to possess it as his own.
(1) When anyone thinks that he is not legally entitled to acquire by usucaption property which is in his possession, it must be said that even if he is mistaken, he cannot profit by usucaption; either because he is not considered to possess it in good faith, or because usucaption is of no advantage where an error of law exists.
(2) No one can possess a portion of anything, the amount of which is uncertain. Therefore, if several persons own land, and each is ignorant of the amount of his share, Labeo says that, strictly speaking, none of them has possession.
33. Julianus, Digest, Book XLIV.
Not only bona fide purchasers, but also all those who have possession under any title by which usucaption is ordinarily acquired, can obtain as their own the child of a female slave; and I think that this rule has been legally established. For, in every instance, anyone can acquire a female slave by usucaption, unless it is prohibited by the Law of the Twelve Tables, or the Atinian Law. The child of such a slave can be acquired by usucaption, if it was conceived and brought forth at a time when the alleged possessor did not know that its mother had been stolen.
(1) The common opinion that a person himself cannot change the title of his possession is only correct where he knows that he is not a possessor in good faith, and obtains it for the purpose of profit. This can be proved as follows: If anyone purchases a tract of land from another, knowing that it does not belong to the latter, he will hold it as the possessor; but if he purchases the same land from the owner, he will possess it as the purchaser; nor will he himself be considered to have changed the title to his possession. The same rule will apply even if he did not purchase the land from the owner, if he believed it to be his. In like manner, if he was appointed heir by the owner, or obtained praetorian possession of his estate, he will possess the land as the heir. Further, if he had good reason to think that he was the heir, or was entitled to praetorian possession of the estate, he will possess the land as the heir, and will not be held to have himself changed the title to possession. As this rule must be adopted with reference to him who has possession, how much more is it applicable to the case of a tenant, who has no possession either during the lifetime, or after the death of/the owner of the land? And, indeed, if the tenant, at the time of the death of the owner, purchased the land from him whom he believed to be the heir of the former, or the possessor of his estate under the Praetorian Edict, he will begin to hold the property as a purchaser.
(2) If the owner of land thinks that armed men are coming, and, for this reason, takes to flight, he will be considered to have been forcibly dispossessed, even though none of them should enter upon the land. Still, the same land can be acquired by usucaption by a bona fide possessor, even before it again comes under the control of the owner, because the Lex Plautia et Julia forbids property which has been taken possession of by force to be acquired by long possession, but not by those who have been driven from it by violence.
(3) If Titius gives me possession of land which I had the intention of bringing suit to recover from him, I shall have good ground for usucaption. But if he from whom I had the intention of demanding a tract of land on account of a stipulation grants me possession of the same, and does so for the purpose of discharging his indebtedness, he places me in such a position that I can obtain the land by prescription.
(4) Anyone who gives property in pledge can acquire it by usucaption as long as it remains in the hands of his creditor, but if the creditor should transfer his possession to another, the usucaption will be interrupted. And, so far as the usucaption is concerned, the case is similar to that of a person who deposited, or lent an article; for it is clear that he ceases to acquire it by usucaption, if the article which was lent or deposited should be delivered to a third party by him who received it as a loan, or a deposit. It is evident if the creditor hypothecated it by a mere agreement, the debtor will continue to acquire it by usucaption.
(5) If I possess in good faith property which belongs to you, and pledge it to you, you not being aware that it was yours, I cease to acquire it by usucaption, because no one is understood to hold his own property in pledge. If, however, it should be pledged by a mere agreement, I will still continue to acquire it by usucaption, because in this way the property is not considered to have been pledged.
(6) If a slave should steal property which has been pledged to his master, as the creditor still continues to be in possession of it, the usucaption of the debtor will not be interrupted, because a slave does not deprive his master of possession. But if a slave of the debtor should steal the property, although the creditor ceases to have possession of the same, the usucaption of the debtor will remain the same as if the creditor had delivered the property to the debtor. For so far as usucaption is concerned, slaves do not injure the conditions of their owners by the theft of property. The question will be more easily decided if the slave of a debtor, having precarious possession, steals the property; for if it should be hired, the result will be the same as if it had remained in the hands of the creditor, since, in this instance, the creditor has possession of it. If, however, both titles existed, that is to say, one that is precarious, and another based upon the hiring, the creditor is understood to hold possession, for the claim under a precarious title is not, in this instance, introduced to enable the debtor to have possession, but only to permit him to retain the property.
34. Alfenus Verus, Epitomes of the Digest by Paulus, Book I.
If a slave, without the knowledge of his master, sells property belonging to his peculium, the purchaser can acquire it by usucaption.
35. Julianus, On Urseius Ferox, Book III.
If a slave, the usufruct of whom has been bequeathed, and who has never been in possession of the heir, should be stolen, the question arises, can the slave be acquired-by usucaption, because the heir is entitled to an action of theft ? Sabinus says that no usucaption can exist in the case of property on account of which an action for theft will lie, but that he who is entitled to the usufruct can bring this action. This, however, must be understood to apply to a case where the usufructuary can use and enjoy his right; for otherwise, the slave would not be in the condition in which he should be. But if the slave had been stolen from the usufructuary, while in the enjoyment of his right, not only he himself, but also his heir, can bring the action for theft.
36. Gaius, Diurnal or Golden Matters, Book II.
It can happen in several ways, that a person laboring under some mistake may sell or give away property as his own which belongs to another; and, under such circumstances, it can be acquired by usucaption by a bona fide possessor; for instance, if the heir should sell property which was lent to the deceased, or leased by him, or deposited with him, believing that it belonged to the estate.
(1) Likewise, if anyone, misled by some opinion, and thinking that he is entitled to an estate, which is not the case, should alienate property forming part of the same; or where a person to whom the usufruct of a female slave belongs, believing her children to be his, for the reason that the increase of flocks belongs to the usufructuary, should sell the children;
37. The Same, Institutes, Book II.
He does not commit a theft, for a theft cannot be committed without the intention of stealing.
(1) Anyone can also obtain possession of the land of another without violence, where it has become vacant through the neglect of the owner, or where the latter has died without leaving an heir, or has been absent for a long time.
38. The Same, Diurnal or Golden Matters, Book III.
A person cannot, himself acquire the property by usucaption in this case, because he knows that it belongs to another, and therefore he is a possessor in bad faith; but if he transfers it to someone else who receives it in good faith, the latter can acquire it by/usucaption, for the reason that he has gained possession of property which has not been acquired by force, and has not been stolen: as the opinion of certain ancient authorities, who held that a theft of land or a house could be perpetrated has been abandoned.
39. Marcianus, Institutes, Book III.
If the soil cannot be acquired by usucaption, what stands upon it can not be acquired in the same way.
40. Neratius, Rules, Book V.
It has been established that where usucaption has been begun by a deceased person, it can be completed before the estate has been entered upon.
41. The Same, Parchments, Book VII.
If my agent recovers property which has been stolen from me, although, generally speaking, it is now almost conclusively settled that we can obtain possession by means of an agent, the property, nevertheless, will not again come under my control so that it can be acquired by usucaption, because to decide otherwise would be fallacious.
42. Papinianus, Questions, Book III.
If a husband should sell a dotal tract of land to someone who knew, or.was not aware that the property was a part of the dowry, the sale will not be valid. If the woman should afterwards die during the marriage, the transaction must be confirmed, if the entire dowry was given for the benefit of the husband. The same rule applies where he who sold stolen property subsequently becomes the heir of the owner of the same.
43. The Same, Questions, Book XLII.
If the heir of him who purchased property in good faith knows that it belongs to another, he cannot acquire it by usucaption, provided possession of it has been delivered to him personally; but the knowledge of the heir will not prejudice him so far as the continuance of possession is concerned.
(1) It is certain that a father cannot acquire by usucaption anything which his son has purchased, if he or his son knew that it was the property of someone else.
44. The Same, Questions, Book XXIII.
Having been deceived by a plausible error, I believe Titius to be my son, and to be under my control, but the arrogation of him by me was found to be illegal. I do not think that, under the circumstances, he has a right to take charge of my property, for the same rule has not been established in this case as in that of a freeman who serves in good faith as a slave; as it was for the interest of the public to establish this rule, on account of the constant and daily transactions with reference to slaves. For we often purchase freemen, not knowing that they are such, and the adoption and arrogation of children is not as easy, or as frequent.
(1) It is settled that if you sell me property belonging to another, and I know that this is the case, and you deliver it at the same time that the owner ratifies the sale, the time of delivery must be taken into account and the property becomes mine.
(2) Although it has been decided that, so far as usucaption is concerned, the beginning of the possession, and not the time when the contract was made, must be considered; still, it sometimes happens that we take into consideration not the beginning of the present possession, but the reason for a former delivery, which was made in good faith; for instance, where the right to the child of a female slave, whose mother was possessed in good faith, is in question, as the child cannot any the less be acquired by usucaption, although the possessor knew that the mother was the property of another before the child was born. The same rule applies to the case of a slave who returns under the law of postliminium.
(3) The time which has elapsed before the acceptance of an estate is granted for the benefit of usucaption, whether a slave belonging to the estate purchased any property, or whether the deceased had begun to acquire by usucaption. This principle is established as a special privilege.
(4) A son under paternal control bought property belonging to another, and then, becoming the head of a household without knowing it, began to possess the property, which had been delivered to him. Why can he not obtain it by usucaption, as he acted in good faith at the time that he obtained possession, although he was mistaken when he thought that he could not obtain property which he acquired as part of his peculium? The same rule must be said to apply if he had good reason to think that the property which was purchased had come into his hands as a part of his father's estate.
(5) Usucaption which takes place in favor of a purchaser or an heir does not prevent the pursuit of a pledge by a creditor; for, as an usufruct cannot be the subject of usucaption, so the right to pursue a pledge, which is in no way connected with ownership but is founded on an agreement alone, is not extinguished by the usucaption of the property.
(6) The opinion that anyone who becomes insane, and who had previously begun to acquire by usucaption, can continue to do so until it is completed under any title whatsoever, is based on considerations of convenience, in order to prevent his mental weakness from injuriously aifecting his property.
(7) If a slave or a son purchases property while the master or the father is in the hands of the enemy, will he begin to hold the same? If he has possession on account of his peculium, usucaption will begin to run, nor will the captivity of his father or master offer any impediment to this, as his knowledge of it would not be necessary if he was at home. If, however, the purchase was made without reference ;to the peculium, the property cannot be acquired by usucaption, nor can it be understood to be obtained by the right of postliminium; for, in order for this to take place, what is said to be obtained by usucaption must already have been possessed. But if the father should die in captivity, for the reason that the time of his death is held to date from the day of his capture, it may be said that the son has had possession for himself, and he can be understood to have acquired the property by usucaption.
45. The Same, Opinions, Book X.
Prescription based upon long possession is not usually granted for the acquisition of places which are public by the Law of Nations. An instance of this is, where anyone abandons a building which he had constructed upon the seashore, or it was demolished, and another person, having built a house in the same place, the former opposes him by an exception based upon previous occupancy; or where anyone, for the reason that he alone has been accustomed to fish for years in a certain part of a river, under the same prescriptive right forbids another to do so.
(1) A slave who belonged to an estate, after the death of his master, obtained possession of property forming part of his peculium. The beginning of usucaption will date from the time when the estate was entered upon, for how can property be acquired in this manner which was not previously in the possession of the deceased?
46. Hermogenianus, Epitomes of Law, Book V.
Property which has been received in payment is subject to usucaption where it has been obtained in the discharge of a debt. Not only what is due, but also whatever is given in discharge of the debt is subject to usucaption.
47. Paulus, On Neratius, Book III.
If my agent, without my knowledge, takes charge of property purchased in my name, although I may have possession of the same, I cannot acquire it by usucaption; because while we can acquire property by usucaption without knowing that we have possession of it, this has been decided to only be true where something forming part of the peculium is concerned.
48. The Same, Manuals, Book II.
If, believing that I am indebted to you, I give you property in payment, usucaption can only take place if you yourself think that it is due. The case is different, if I think that I am bound on account of a sale, and therefore deliver the property to you, for no action will lie against me, and you, as the purchaser, will not be entitled to usucaption. The reason for the difference arises from the fact that, in other instances, the time of payment should be considered. Nor does it matter whether, at the time when I make the stipulation, I am aware that the property belongs to another or not, as it will be sufficient if I think it is mine, when you give it to me in payment for a purchase; however, not only the time when a contract was entered into, but also that of payment is taken into account, for no one can acquire property by usucaption as a purchaser who did not buy it, and he cannot, as in other contracts, say that it has been received in payment.
49. Labeo, Epitomes of Probabilities by Paulus, Book V.
Property which has been stolen cannot be acquired by usucaption before it has again come under the control of the owner. Paulus: Perhaps the contrary opinion is true; for if you should steal property which you have given to me in pledge, it becomes stolen goods, but it can be acquired by usucaption as soon as it again comes under my control.
Tit. 4. Concerning possession acquired by a purchaser.
1. Gaius, On the Provincial Edict, Book VI.
A possessor who tenders the appraised value of the property in court begins to possess it as a purchaser.
2. Paulus, On the Edict, Book LIV.
He has possession as a purchaser who has actually bought the property, and it will not be sufficient for him merely to be of the opinion that he is in possession as purchaser, but the title to the property, as purchased, must actually exist. If, however, I think that I owe you something, and I deliver it to you without your being aware that it belongs to someone else, you can acquire it by usucaption. Why, therefore, can you not acquire it by usucaption if I deliver it to you, thinking that I have sold it to you? This is because the time of the delivery is considered in all other contracts; hence, if I knowingly stipulate for property belonging to a third party, I can acquire it by usucaption if I thought that it belonged to you when it was delivered to me. In the case of a purchaser, however, the time when the contract was entered into is considered, and therefore the purchase must be made in good faith, and also possession must be obtained in this way.
(1) Title to possession and title to usucaption are different, for anyone may truthfully be said to have made a purchase, but to have made it in bad faith; for anyone who knowingly buys property in bad faith has possession of it as the purchaser, although he cannot acquire it by usucaption.
(2) Where a purchase is made under a condition, the purchaser cannot acquire the property by usucaption while the condition is pending. The same rule applies if he thinks that the condition has been fulfilled, and this has not yet taken place, for he resembles a person who thinks that he has made a purchase, when this is not the case. On the other hand, if the condition has been complied with and he is ignorant of the fact, he can be said to acquire it by usucaption, according to Sabinus, who held that this could be done by considering rather the nature of things than mere opinion. Some difference, however, exists between these two instances, because where anyone thinks that property belongs to another, which, in fact, belongs to the vendor, he occupies the position of a purchaser. But when he thinks that the Condition has not yet been complied with, it is just as if he thought that he had not yet made the purchase. This point can be presented more clearly if possession is delivered to the heir, who does not know that the deceased bought the property but thinks it was delivered to him for some other reason; but should it be held that usucaption cannot be acquired under such circumstances ?
(3) Sabinus says that if property has been purchased in such a way that the sale will be void unless payment is made within a certain time, it cannot be acquired by usucaption, unless payment has actually been made. Let us see, however, whether this is a condition or an agreement; for if it is an agreement, the result will more readily be accomplished by payment than by complying with the condition.
(4) If settlement is to be made within a specified time (that is to say, if anyone does not offer to pay a better price within that time), Julianus thinks that the sale is perfected, and that the profits will belong to the purchaser, who will have a right to acquire the property by usucaption; but others have held that the sale was made under a condition. He said that it was not made under a condition, but that it was annulled under a condition, which opinion is correct.
(5) A sale is absolute where it is agreed that it shall be void in case the purchaser should not be content with the property within a certain time.
(6) I purchased Stichus, and Damas was delivered to me instead of him, by mistake. Priscus says that I cannot acquire this slave by usucaption, because what was not bought cannot be acquired in that way by the purchaser. If, however, a tract of land was purchased and a larger amount has been in possession than what was conveyed, it can be acquired by lapse of time, as the entire tract, and not separate portions of the same, is possessed.
(7) You purchase the property of a person with whom slaves have been deposited. Trebatius says that you cannot acquire the said slaves by usucaption, because they were not purchased.
(8) A guardian bought an article at an auction of his ward, which he thought belonged to him. Servius says that he can acquire it by usucaption, and his opinion has been accepted, for the reason that the condition of the ward does not become worse if he has a purchaser in his guardian, who will pay more money for the property. If he should purchase it for less, he will be liable to an action on guardianship, just as if he had transferred it to some other person for less than it was worth. This, it is said, was also decided by the Divine Trajan.
(9) Many authorities hold, if an agent buys property at auction by the direction of his principal, that he can acquire it by usucaption, as a purchaser, on the ground of public convenience. The same rule applies if, while transacting the business of his principal, he makes the purchase without the knowledge of the latter.
(10) If your slave purchases property for his peculium which he knows belongs to another, you cannot acquire it by usucaption, even if you are not aware that it belongs to someone else.
(11) Celsus says that if my slave, without my knowledge, obtains possession of property for his peculium, I can acquire it by usucaption. If he does not obtain it as a part of his peculium, I cannot acquire it, unless I know that he has obtained it; and if he has possession which is defective in law, my possession will also be defective.
(12) Pomponius also says, with reference to property which is possessed in the name of the owner, that the intention of the latter, rather than that of the slave, should be considered. If the slave possesses property as part of his peculium, then his intention must be taken into consideration; and if the slave possesses it in bad faith, and his master obtains it in order to hold it in his own name, for instance, by depriving the slave of his peculium, it must be said that the same reason for possession exists, and therefore, that the master cannot avail himself of usucaption.
(13) If my slave should purchase property for his peculium in good faith, and when I first heard of it I knew the property belonged to another, Cassius says that usucaption can take place, for the beginning of the possession was without any defect. If, however, at the time he purchased the property, even though he did so in good faith, I knew that it belonged to someone else, I cannot acquire it by usucaption.
(14) If my slave should give to me, in consideration of his freedom, certain property which he had purchased in bad faith, I cannot acquire it by usucaption; for Celsus says that the first defective possession still continues to exist.
(15) If I make a purchase from a ward without the authority of his guardian, believing that he has reached the age of puberty, we hold that usucaption can take place, as this rather applies to the property than to the opinion. If, however, you know the vendor to be a ward, and you still believe that wards have the right to transact their own affairs without the authority of their guardians, you will not acquire the property by usucaption, because an error of law is of no advantage to anyone.
(16) If I purchase property from an insane person whom I think to be of sound mind, it has been established that I can acquire it by usucaption on the ground of public convenience, although the purchase was void; and therefore I will neither be entitled to an action founded upon eviction, nor will the Publician Action lie, nor will any benefit result from previous possession.
(17) If you sell me property which you are about to acquire by usucaption as a purchaser, and I know that it belongs to another, I cannot acquire it by usucaption.
(18) Although possession may benefit the immediate heir of the deceased, a more distant heir cannot obtain possession of the property.
(19) If the deceased bought property in good faith, it can be acquired by usucaption, even though the heir knew that it belonged to someone else. This rule should be observed, not only in the case of praetorian possession, but also in that of trusts by virtue of which an estate is transferred under the Trebellian Decree of the Senate, as well as with reference to all other praetorian successors.
(20) The time that the property was possessed by the vendor benefits the purchaser in acquiring usucaption of the same.
(21) If I purchase property belonging to another, and while I am in the course of acquiring it by usucaption, the owner brings an action to recover it from me, my usucaption will not be interrupted by the joinder of issue in the case. If, however, I should prefer to pay the appraised value of the property in court, Julianus says that the title to possession is changed, so far as he who paid the value of the property in court is concerned. The same rule will apply, if the owner donates the property to him who purchased it from one who is not its owner. This opinion is correct.
3. Ulpianus, On the Edict, Book LXXV.
Payment of the appraised value of the property in court resembles a purchase.
4. Javolenus, On Plautius, Book II.
A purchaser knew that a part of the land which he bought belonged to another. The opinion was given that he could not obtain any of the land by virtue of long possession. I think that this is true, if the purchaser was not aware what part of the land belonged to another; for if he knew that it was a certain tract of it, I have no doubt that he could obtain the remainder on the ground of long possession.
(1) The same rule of law applies, if a man who purchased an entire tract of land was aware that an undivided part of it belonged to someone else; for he can not only acquire that part by usucaption, but he will not be prevented from acquiring the remaining parts by long possession.
5. Modestinus, Pandects, Book X.
If I have pledged property with you, and then steal and sell it, a doubt arises as to whether it can be acquired by usucaption. The better opinion is that it can be so acquired.
6. Pomponius, On Sabinus, Book XXXII.
Where anyone who is in a way to acquire by usucaption any property, either as heir or as purchaser, has claimed it by a precarious title, he cannot acquire it by usucaption. For what difference is there between these things, when he claims the property by a precarious title, he ceases in both instances to hold possession under his first title?
(1) If, out of ten slaves whom I have purchased, I think that some belong to other persons, and I know which ones they are, I can acquire the others by usucaption. If, however, I do not know which of them belong to others, I cannot acquire any of them by usucaption.
(2) The time for acquiring by usucaption having expired after the death of a man who purchased a slave, although the heir may not have begun to possess the slave, he will still become his, provided no one else has obtained possession of him in the meantime.
7. Julianus, Digest, Book XLIV.
A certain person who possessed a tract of land, as purchaser, died before the time had elapsed for acquiring the land by usucaption, and the slaves who had been left in possession of the property departed with the intention of abandoning it. The question arose whether the time of long possession would, nevertheless, continue to benefit the heir. The answer was, that even if the slaves did leave, the heir could profit by the time.
(1) If I obtain the Cornelian Estate, as purchaser, by virtue of long-continued possession, and I add to it a part of some adjoining land, can I also obtain this portion as purchaser during the remaining time necessary for prescription; or can I acquire it by usucaption during the time prescribed by law? I gave it as my opinion that the adjacent land, which was added to that already purchased, has its own peculiar and distinct condition, and therefore that possession of both tracts must be separately obtained, and must be acquired by long possession in accordance with the time prescribed by law.
(2) My slave directed Titius to purchase a tract of land for him, and Titius transferred the possession of the same to the slave after his manumission. The question arose whether he could obtain it by long possession. The answer was, that if my slave had directed Titius to purchase the land, and Titius had delivered it to him after his manumission, whether he believed that the slave's peculium had been given to him, or did not know that it had not, the slave could, nevertheless, obtain the land by long-continued possession, because he either knew that his peculium had been given him, or he ought to have known it, and hence he resembles one who pretends to be a creditor. If, however, Titius knew that his peculium had not been given to the slave, he should be understood to have rather bestowed the land as a donation than, to have relinquished it for the discharge of a debt which was not due.
(3) If a guardian should steal the property of his ward and sell it, usucaption will not take place before it has been again placed under the control of the ward; for the guardian is only considered to occupy the place of the owner with reference to the property of his ward when he is administering the affairs of the guardianship, and not when he is despoiling his ward.
(4) Where anyone in good faith purchases land belonging to another and loses possession of the same, and afterwards, when he recovers it, ascertains that it belongs to someone else, he cannot acquire it by lapse of time, for the reason that the beginning of the second possession is defective. Nor does he resemble one who, at the time of the purchase, believed the land to belong to the vendor, but when it was delivered, knew that it belonged to someone else; for, when possession has once been lost, the beginning of the recovered possession must again be taken into consideration. Therefore, if a slave is returned at a time when the purchaser was aware that he belonged to another, usucaption will not take place; even though before he sold him he was in such a position that he could acquire him by usucaption. The same rule applies to one who has been ejected from land, and, knowing that it belonged to another, recovers possession of it by means of an interdict.
(5) Anyone who knowingly purchases from one whom the Praetor has forbidden to dispose of the property of an estate, on account of his being suspected of not being the heir, cannot acquire it by usucaption.
(6) If your agent sells a tract of land for only thirty aurei which he could have sold for a hundred, in order to cause you injury, and the ipurchaser is not aware of the fact, there is no doubt that the latter can acquire the land by long-continued possession; for even where anyone knowingly sells land belonging to another to one who is not aware that this is the case, long-continued possession is not interrupted. If, however, the purchaser should be in collusion with the agent, and, for the sake of a reward, corruptly induces him to sell the property for less than it was worth, the purchaser will not be understood to have acted in good faith, and he cannot acquire the land by prescription. If he avails himself of an exception on the ground that the land was sold with the consent of the owner, and the latter brings an action to recover it, the owner can avail himself of a reply based on fraud.
(7) Stolen property is not understood to be again brought under the control of the owner, even if he regains possession of the same, if he does not know that it has been stolen from him. Therefore, if I should give in pledge a slave who has been stolen from you, and you are not aware that he is yours, and, after payment of the debt, I should sell him to Titius, Titius cannot acquire him by usucaption.
(8) A freeman who is serving us in good faith as a slave, while managing our property, can acquire other property for us in the same way in which we are accustomed to acquire it by means of our own slaves. Hence, as we obtain the ownership of property either by delivery or by usucaption through the intervention of a person who is free, so, if a contract for a sale is entered into by means of the peculium of a slave, to which we are entitled, we can acquire the property by usucaption, even if we are not aware that the purchase has been made.
8. The Same, On Minicius, Book II.
Where anyone buys slaves knowing that the vendor will immediately squander the money paid for them, many authorities have held that he will, nevertheless, be a bona fide purchaser in good faith; and this is true. For, how can he be considered to have acted in bad faith, who bought the slaves from their master, unless he bought them from a man of licentious life, who will immediately give the money to a harlot, for then he cannot acquire the slaves by usucaption?
9. The Same, On Urseius Ferox, Book III.
A man who has received from his own slave a female slave in consideration of the grant of his freedom, can, as a purchaser, acquire by usucaption the child of the said female slave.
10. The Same, On Minicius, Book II.
A slave, in consideration of his freedom, gave to his master a female slave whom he had stolen. She conceived. The question arose whether her master could acquire her child by usucaption. The answer was that the master could, as purchaser, acquire the child by usucaption, for he gave something for the woman, and a kind of sale was made between the slave and his owner.
11. Africanus, Questions, Book VII.
It is usually said that he who thinks that he has bought something and did not do so cannot, as a purchaser, acquire it by usucaption; but this is only true to the extent that the purchaser must have no just cause for entertaining his erroneous opinion. For if a slave or an agent who has been directed to purchase the property should persuade his principal that he has done so, and deliver the property to him, the better opinion is that usucaption will take place.
12. Papinianus, Opinions, Book X.
When a legatee has been placed in possession of property, this can be acquired by usucaption by the heir, as purchaser, the right of praetorian pledge being reserved.
13. Scaevola, Opinions, Book V.
A certain man purchased, in good faith, a tract of land belonging to another, and began to build a house upon it before the time for acquiring possession of it by prescription had elapsed; and the owner of the land, having notified him before the term fixed by law had expired, continued to retain possession. I ask whether the prescription was interrupted, or, having once begun, continued to run. The answer was that, in accordance with the facts stated, it had not been interrupted.
14. The Same, Digest, Book XXV.
The estate of a sister, who died intestate, passed to her two brothers, one of whom was absent and the other present. The one who was present acted for the absent one, and sold to Lucius Titius, a bona fide purchaser, an entire tract of land in his own name and in that of his brother. The question arose whether the purchaser, knowing that half of the land belonged to the absent heir, could acquire the entire tract by prescription. The answer was that he could do so, if he believed that it had been sold by the authority of the brother who was absent.
Tit. 5. Concerning possession as heir or as possessor.
1. Pomponius, On Sabinus, Book XXXII.
Nothing can be acquired by an heir through usucaption out of the property of a person who is living, even though the possessor thought that it belonged to one who is dead.
2. Julianus, Digest, Book XLIV.
When anyone is placed in possession of an estate for the preservation of a legacy, he does not interrupt the possession of him who acquires by usucaption as heir, for he holds the property for safe-keeping. What then results? He will retain the property by the right of pledge, even after the time required for usucaption has elapsed, and he will not relinquish it until his legacy has been paid to him, or his claim to it has been satisfied.
(1) The common opinion that no one can change the title of his own possession must be understood to apply, not only to civil, but also to natural possession. Therefore, it has been held that neither a tenant, nor anyone with whom property has been deposited, or lent, can, as heir, acquire it by usucaption, for the purpose of profiting by it.
(2) Servius denies that a son can, in the capacity of heir, acquire by usucaption property which has been given to him by his father; for he held that natural possession of it was in the hands of the son during the lifetime of his father. The result of this is that, where a son has been appointed heir by his father, he cannot acquire by usucaption any portion of the estate given to him by the former so far as this may affect the shares of his co-heirs.
3. Pomponius, On Quintus Mucius, Book XXIII.
Many authorities hold that if I am the heir, and think that certain property belongs to the estate, but which really forms no part of it, I can acquire it by usucaption.
4. Paulus, On the Lex Julia et Papia, Book V.
It is established that he who has a right to make a will can, in the capacity of heir, acquire property by usucaption.
Tit. 6. Concerning possession on the ground of donation.
1. Paulus, On the Edict, Book LIV.
He to whom property has been delivered as a gift acquires it by usucaption, because of the donation. It is not sufficient to think that this was the case, but it is necessary for the donation actually to be made.
(1) If a father makes a donation to his son whom he has under his control, and then dies, the son cannot acquire the property given by usucaption, for the reason that the donation is void.
(2) Where a donation is made between husband and wife, usucaption does not take place. Moreover, Cassius says that if a husband should give property to his wife, and a divorce should then take place, usucaption cannot be acquired because the wife cannot, herself, change the title to possession. He states that the rule is different, and that she can obtain the property by usucaption after the divorce, if the husband has allowed her to use the property just as if he was understood to have donated it to her. Julianus, however, thinks that a wife is in possession of property donated by her husband.
2. Marcellus, Digest, Book XXII.
Where anyone donates property belonging to another, and determines to revoke the donation, even if he has instituted proceedings to recover it, the usucaption will continue to run.
3. Pomponius, On Quintus Mucius, Book XXIV.
When a husband makes a donation to his wife, or a wife to her husband, and the property donated belongs to another, the opinion of Trebatius is, if the party who made the donation does not become any poorer by doing so, the possessor can acquire the property by usucaption, is correct.
4. The Same, On Sabinus, Book XXXII.
If a father makes a donation to his daughter, who is under his control, and has disinherited her, and the heir ratines the donation, she can begin to acquire it by usucaption from the day when the ratification was made.
5. Scaevola, Opinions, Book V.
Where anyone has begun to acquire a slave by usucaption, as a gift, and manumits him, the act of manumission is void, because he has not yet obtained the ownership of the slave. The question arose whether he had ceased to acquire him by usucaption. The answer was that with reference to the person in question, he seemed to have relinquished possession, and hence usucaption was interrupted.
6. Hermogenianus, Epitomes of Law, Book II.
When sale has been made which is, in fact, a donation, the property delivered is acquired by usucaption, as a purchase, and not as a gift.
Tit. 7. Concerning possession on the ground of abandonment.
1. Ulpianus, On the Edict, Book XII.
Where property is considered to be abandoned, it immediately ceases to be ours, and belongs to the first occupant, because it ceases to belong to us under the same circumstances that it is acquired by others.
2. Paulus, On the Edict, Book LIV.
We can acquire property on the ground of abandonment, if we know that it is considered as relinquished by its owner.
(1) Proculus holds that the property does not cease to belong to the owner, unless possession of it is acquired by someone else. Julianus, however, thinks that it ceases to belong to the owner when he abandons it, but that it does not become the property of another, unless he obtains possession of it. This is correct.
3. Modestinus, Differences, Book VII.
An inquiry is sometimes made whether a portion of anything can be considered to have been abandoned. And, indeed, if a joint-owner gives up his share of the common property, it ceases to belong to him, so that the same rule is applicable to a portion that is to all. The sole owner of property, however, cannot retain a part of the same and abandon the remainder.
4. Paulus, On Sabinus, Book XV.
We can acquire by usucaption property which is considered to be abandoned, when we think that this is the case, even if we do not know by whom it has been abandoned.
5. Pomponius, On Sabinus, Book XXXII.
If you possess any article which is considered to have been abandoned, and I, knowing this to be the case, purchase it from you, it is established that I can acquire it by usucaption, and the objection that it is not included in your property cannot be raised. For if I knowingly purchase property given to you by your wife, for the reason that you have done this, as it were, with the consent and permission of the owner, the same rule will apply.
(1) Whatever anyone considers to have been abandoned by himself immediately becomes mine, if I take it. Hence, if anyone throws away money, or releases birds, although he intends that they shall belong to anyone who may seize them, they, nevertheless, become the property of him whom chance may favor; for where anyone relinquishes the ownership of property, he is understood to have intended it to belong to anyone else whomsoever.
6. Julianus, On Urseius Ferox, Book III.
No one can acquire property by usucaption on the ground of abandonment who erroneously thinks that it has been abandoned.
7. The Same, On Minicius, Book II.
When anyone finds merchandise which has been thrown overboard from a ship, the question arises whether he cannot acquire it by usucaption, for the reason that it should be considered as abandoned. The better opinion is that he cannot acquire it by usucaption on the ground of abandonment.
8. Paulus, Opinions, Book XVIII.
Sempronius attempted to raise a question as to the condition of a certain Thetis, alleging that she was the daughter of one of his female slaves. He, however, having been sued by Procula, the nurse of Thetis, in an action to compel him to reimburse her for Thetis's support, answered that he did not have the means to make payment, but that the nurse should restore the child to her father, Lucius Titius. The nurse then instituted proceedings to prevent any question from being raised afterwards by the said Sempronius. Lucius Titius, after having paid Seia Procula her claim for support, publicly manumitted the child. I ask whether the freedom granted to Thetis can be revoked. Paulus answered that, as the owner of the female slave to whom Thetis was born was considered to have abandoned the latter, she could obtain her freedom at the hands of Lucius Titius.
Tit. 8. Concerning possession on the ground of a legacy.
1. Ulpianus, Disputations, Book VI.
He is considered to be in possession as a legatee to whom the bequest has been left, for possession and usucaption based on the legacy will take place only in favor of the person to whom the property has been bequeathed.
2. Paulus, On the Edict, Book LIV.
If I possess anything which I think was bequeathed to me, and this is not the case, I cannot, in the capacity of legatee, acquire it by usucaption.
3. Papinianus, Questions, Book XXII.
No more than where anyone thinks that he has purchased something which he has not purchased.
4. Paulus, On the Edict, Book LIV.
Property can be acquired by usucaption on the ground of its being a legacy, where something belonging to another has been bequeathed, or where it belonged to the testator, and it is not known that it was taken away by a codicil; for, in instances of this kind, a good reason exists for usucaption to take effect. The same rule can be said to apply where the name of the legatee is in doubt, as, for example, where a bequest is made to Titius, and there are two individuals of that name, so that one of them thinks that he was meant, when this was not the case.
5. Javolenus, On Cassius, Book VII.
Property delivered as a legacy can be acquired by usucaption on this ground, even though the owner of it may be living,
6. Pomponius, On Sabinus, Book XXXII.
If the person to whom the property was delivered thinks that the testator is dead.
7. Javolenus, On Cassius, Book VII.
No one can acquire property by usucaption on account of a legacy, unless he himself had a right to make a will for the benefit of the testator, because possession of this kind depends upon testamentary capacity.
8. Papinianus, Questions, Book XXIII.
If the legatee takes possession of the legacy without any question arising to affect his title, even if the bequest has not been delivered to him, he will be entitled to acquire by usucaption the property bequeathed to him.
9. Hermogenianus, Epitomes of Law, Book V.
A person to whom a legacy has been legally bequeathed acquires property by usucaption, as a legatee. If, however, it has not been left in conformity to law, or the legacy has been taken away, it has been decided, after much controversy, that the property can be acquired by usucaption on account of the legacy.
Tit. 9. Concerning possession on the ground of a dowry.
1. Ulpianus, On Sabinus, Book XXXI.
A right to usucaption, and one which is extremely just, is that which is said to exist on account of a dowry, so that anyone who receives property by way of dowry can acquire it by usucaption, after the expiration of the time usually prescribed by law in the case of those who acquire property in this manner as purchasers.
(1) It makes no difference whether certain specified articles, or the entire amount of the property, is given by way of dowry.
(2) In the first place, let us consider the time when anyone can acquire property by usucaption as dowry; and whether this is to begin after the date of the marriage, or before it. A question commonly discussed is, whether a man who is betrothed (that is to say, one who has not yet been married), can acquire property by usucaption, because of its being a dowry. Julianus says that, if the woman who is betrothed delivers the property to the other party, with the intention that it shall not belong to him until after the marriage has been solemnized, usucaption will not take place. If, however, this was evidently not the intention, it should be held (so Julianus says) that the property immediately becomes his; and if it belongs to someone else, it can be acquired by usucaption. This opinion seems to me to be plausible. But, before the marriage takes place, usucaption becomes operative, not because of the dowry, but on the ground of ownership.
(3) During the existence of the marriage, usucaption takes place between the persons who are married, on account of the- dowry. If, however, the marriage does not exist, Cassius says that usucaption cannot occur as there is no dowry.
(4) He also says that if the husband thinks that he is married, when this is not the case, he cannot acquire the property by usucaption, because there is no dowry. This opinion is reasonable.
2. Paulus, On the Edict, Book LIV.
If property which has been appraised is delivered before the marriage has been solemnized, it cannot be acquired by usucaption, either on the ground of purchase or on that of ownership.
3. Scaevola, Digest, Book XXV.
Two daughters became the heirs of their father who died intestate, and each one of them gave slaves belonging to them in common by way of dowry, and then, some years after the death of their father, they brought suit in partition. As the husbands had for many years held possession of the slaves given by way of dowry as dotal slaves, the question arose whether they could be held to have acquired them by usucaption, if they believed that they belonged to those who had given them as dowry. The answer was that there was nothing in the case stated to prevent them from being acquired by usucaption.
Tit. 10. Concerning possession on the ground of ownership.
1. Ulpianus, On the Edict, Book XV.
Possession on the ground of ownership exists where we think we acquire property for ourselves, and have possession of it under the title by which it was obtained, as well as because of ownership; as, for instance, when, by virtue of a purchase I hold possession both as purchaser and as owner. Moreover, I hold possession both as legatee and donee, and also on the ground of ownership, where property has been donated or bequeathed to me.
(1) Where, however, property has been delivered to me under some good title, for example, by that of purchase, and I acquire it by usucaption, I begin to hold possession of it as mine, even before acquiring it by usucaption. But can any doubt arise as to whether I cease to hold it, as purchaser, after usucaption has taken place? Mauricianus says that he thinks that I do not cease to hold it.
2. Paulus, On the Edict, Book LIV.
There is a kind of possession which is said to be based upon ownership. For in this way we possess everything which we acquire from the sea, the land, or the air, or which becomes ours by the action of the alluvium of streams. We also possess any offspring of property which we hold in the name of others; as, for instance, we hold as our own the child of a female slave belonging to an estate, or who has been purchased; and, in like manner, we possess the profits derived from property which has been bought or donated, or which constitutes part of an estate.
3. Pomponius, On Sabinus, Book XXII.
You delivered to me a slave whom you erroneously thought I was entitled to under the terms of a stipulation. If I knew that you did not owe me anything, I cannot acquire the slave by usucaption; but if I did not know it, the better opinion is that I can acquire him by usucaption, because the delivery, which was made for what I think to be a good consideration, is sufficient to enable me to possess as my own the property which has been delivered to me. Neratius adopted this opinion, and I think it is correct.
4. The Same, On Sabinus, Book XXXII.
If you purchased in good faith a female slave who had been stolen, and you have in your possession the child of said slave, that she conceived while in your hands, and, before the time prescribed for usucaption has elapsed you ascertain that the mother of the said child has been stolen, Trebatius thinks that the child which is possessed in this manner can unquestionably be acquired by prescription. I think that a distinction should be made in this case, for, if within the time prescribed by law for usucaption to take effect you do not ascertain to whom the slave belongs or if you knew this, without being able to notify the owner of the slave, or if you were able to notify him, and did it, you can acquire the slave by usucaption. If, however, you were aware that the slave had been stolen, and you could have notified the owner, but failed to do so, the contrary rule will apply; for you will be considered to have possessed her clandestinely, as the same person cannot possess property as his own and clandestinely at the same time.
(1) When a father divides his property among his children, and, after his death, they retain it, for the reason that it was agreed among them that this division of his estate should be ratified, usucaption on the ground of ownership will benefit so far as any property belonging to others, which may be found among the effects of the father, is concerned.
(2) Where property has not been bequeathed, but has been delivered as such by the heir through mistake, it is established that it can be acquired through usucaption by the legatee, because he possesses it as owner.
5. Neratius, Parchments, Book V.
The usucaption of property which we have obtained for other reasons than because we think that we are entitled to it as our own has been established in order to put an end to litigation.
(1) A person can acquire by usucaption the property of which he has possession, thinking that it belongs to him; even if this opinion is false. This, however, should be understood to mean that a plausible error of the party in possession does not interfere with his right to usucaption; for instance, if I possess some article because I erroneously think that my slave, or the slave of someone whom I have succeeded as heir at law, purchased it, as ignorance of the act of another is an excusable mistake.