Corporate rights by prescription.

burghs of regality and barony. Even where no charter or seal of cause can be produced, the prescriptive possession and exercise of corporate rights has been sustained as sufficient. But where no charter exists, or where it contains no specific directions, the managers or office-bearers should obtain the sanction of a general meeting of the members before granting any deeds of importance, taking care to enter the resolution in the minutes of the corporation.1

1 Ersk. 1. 7. 64. Glasgow Surgeons-House of Lords, 7th August 1840, 1 Rob. Ap. 307.

PART II.

OF THE LAW RELATING TO REAL RIGHTS.

CHAPTER I.

OF THE DIVISION OF THINGS.

NATURAL philosophy considers things according to their Notion of things. physical properties; law regards them as the objects of rights. In legal phraseology the word res or thing comprehends not only material objects, but also the actions of man; and, in general, everything that can be the object of a right.1

and in

All things, whether susceptible of property by man or not, Corporeal are distinguished into corporeal and incorporeal.2 Corporeal corporeal. things are those material objects which may be seen and felt -as a house, a field, a horse, or the like. Incorporeal things are those which cannot be handled or perceived by the senses, but are created by law; they are more properly rights enjoyed in respect to things than things themselves, such as rights of inheritance, servitudes, obligations.

in comFor merce.

There are certain objects over which we can exercise no Things not exclusive right; these are called res extra commercium. some things are naturally common to all mankind, some are public, some belong to a particular city or corporation, and some are the property of none; but most things are the private property of individuals, by whom they are acquired in various ways.3

1 Maynz, § 112.

2 I. 2. 2.

3 I. 2. 1. pr.

L

Things

common

to all.

Things public.

Those things which are by nature incapable of appropriation are called common-such as the air, the light, the ocean; none of which can become the property of any one, though their use be common to all. So no nation has an exclusive right to the open sea so as to debar others from using it for navigation and fishing. But the parts of the sea near the coast being, in some degree, susceptible of property, and of great importance to the safety of the country, are held by the modern law of nations to be comprehended within the territory of the state to which the coast belongs. To what distance a nation may extend its rights over the sea by which it is surrounded is a problem which has been a fruitful source of controversy, and is not easily determined. By most publicists the whole space of sea within cannon-shot of the coast is considered a part of the territory of the state; and for that reason a vessel captured within range of the cannon of a neutral fortress is not a lawful prize. During the war between Spain and Holland, James I. caused a line to be drawn as a maritime boundary at a certain distance from the British coast, and declared that he would not suffer the armed vessels of either of the belligerent powers to approach within these limits either in pursuit of an enemy or for observing the ships that might enter or sail out of British ports.1

Things public are those which belong to the sovereign power of the state, but the use of which is common to all its subjects as well as to strangers to whom the privilege may be communicated, such as navigable rivers, highways, harbours, and the like. In countries where the feudal law prevails, those things which the Romans accounted public are held to be vested in the crown in trust for the people. The shore of the sea is the tract of land covered by the greatest winter flood, quatenus hibernus fluctus maximus excurrit.2 Though the sea-shore is classed among things common by Justinian, it belongs more properly to the state which possesses the coast, and this was the opinion of Celsus. one was allowed to make any erections on the sea-shore

No

without the authority of the prætor, and this was refused when the privilege claimed interfered with the navigation, public use, or private utility. The public had a right to use the banks of navigable rivers, so that a qualified ownership in the soil of such banks was all that could be acquired by private persons.

When property belonged to a particular city or corporation, Corporation it was distinguished as res universitatis. Of this description property. were theatres, stadia, and forums.

sacred or

Things sacred, religious, and holy, were exempted from Things commerce, and held to be the property of no one. Temples, religious. churches, altar-pieces, communion-cups, and whatever was consecrated according to the forms prescribed by law, were held sacred, and could not be applied to profane uses. According to Papinian, even the ground on which a temple had stood continued sacred after the edifice had been destroyed.2 Among the epistles of Pliny the younger, we find one addressed to the Emperor Trajan, inquiring whether an ancient temple in Nicomedia, dedicated to the mother of the gods, but not formally consecrated, could be removed consistently with the ceremonies of religion to make way for a new forum. To this Trajan replied, that the temple might be removed without scruple, notwithstanding the dedication, because it had not been legally consecrated, " for the ground of a foreign city is not capable of receiving that kind of consecration which is observed by our laws." 3

Every place where a dead body was buried became religious and exempted from commerce; but this exemption ceased if the body was disinterred and removed to another spot. By the Twelve Tables no burial was permitted within the precincts of Rome, and Hadrian extended this prohibition to all the cities of the empire.

The walls and gates of a city were accounted holy because any one who violated them was punished with death.*

Though not made the basis of any precise classification in Things the Roman law, corporeal things in most modern systems are and im

1 D. 41. 1. 50. D. 43. 8. 3 and 4. 2 I. 2. 1. 8.

3 Pliny, x. Ep. 58, 59.

4 I. 1. 1. 10.

movable

movable.

Description of real

rights.

divided into movables and immovables. Movables consist of money, goods, and every kind of property except land and things attached to land, which are called immovables. As movables, from their nature, may be transported from one place to another, they are held to follow the person of the owner, and to be governed by the law of his domicile. On the other hand, immovable subjects, such as land and houses, being inseparably connected with a particular territory from which they cannot be removed, are governed by the law of the place where they happen to be situated.

The most absolute power which the law gives us over a thing is called the right of property-dominium. This is a real right in a thing which is our own-jus in re propria. There are other real rights in things belonging to another, which are called jura in re aliena. Of these the Roman law, in its last stage of development, admitted four kinds: servitudes, emphyteusis, superficies, and pledge. Among these rights, emphyteusis and superficies, the nature of which will be afterwards explained, bear the closest resemblance to property.1

1 Maynz, § 162.