CHAPTER II. OF PROPERTY IN GENERAL. property. PROPERTY is a right to the absolute use, enjoyment, and dis- Nature of posal of a thing, without any restraint, except what is imposed on the owner by law or paction.1 Thus the unlimited proprietor of a house may use it as a place of residence, or let it to another and draw the rents, or dispose of it by sale, or gift, or even destroy it, if he choose to do so. Not only lands and movable goods, such as horses, plate, money, and the like, but also incorporeal things, are considered in law as objects of property. The word bona was used by the Romans to express all kinds of property, and, generally, all that a man was in any way entitled to. While the essence of property consists in dealing with a thing as one's own, the powers of the proprietor may be absolute and unlimited, or may be subject to limitations arising either from the terms of his own title or from rights created in favour of other persons, by mortgages, servitudes, and otherwise. As a general rule, the property of the soil carries along with it the property of everything above and below it; cujus est solum, ejus est a cœlo usque ad centrum. Sometimes, however, the soil belongs to one person and the mineral estate to another. rem. The real right which belongs to a proprietor, or to the Jus in re and jus ad holder of a mortgage or pledge, is called a jus in re. When there is only a personal right to a thing to be enforced by an action, the legal ownership belonging to another, this personal claim is called a jus ad rem. A jus in re implies a 1 Code Civil, art. 544. 2 D. 50. 16. 49. Res mancipi et nec man cipi. complete acquisition—a jus ad rem is a mere right to acquire a thing. The difference is nearly the same as that between property and obligation. These terms are not Roman, having been borrowed from the Canonists.1 To the uninitiated this distinction may appear trivial; but it enters deeply into legal discussions, and sometimes helps the solution of difficult problems. Originally the Romans recognised only one kind of property, which was called dominium ex jure Quiritium. This property could only be acquired by certain forms called acquisitiones civiles. As to the acquisition of particular things, the general rule is thus stated by Ulpian,-"Singularum rerum dominium nobis adquiritur mancipatione, traditione, usucapione, in jure cessione, adjudicatione, lege."2 But the distinction between the civiles et naturales acquisitiones, so important before Justinian, lost all practical interest under the new Roman law.3 By the ancient civil law things were divided into res mancipi and res nec mancipi, and traces of this distinction continued to a late period in the empire. According to Ulpian, res mancipi comprehended lands or houses in Italy, predial servitudes thereto attached, slaves, and ordinary beasts of burden, such as horses, mules, asses, oxen, but not elephants or camels; while all other things, taken separately and not as a universitas, were res nec mancipi. The property of the first class of things could only be acquired by certain solemn forms, either by mancipatio,5 which was a sort of imaginary sale per æs et libram, in presence of five witnesses and a balance-holder, or by a formal ceremony before the magistrate, called in jure cessio. If these forms were not observed, the property of res mancipi was not transferred; they were only held to be in bonis of the acquirer, till his possession had been continued long enough to fortify his right by prescription. All other things called nec mancipi admitted of being transferred by simple tradition. 3 Marezoll, § 89-92. 4 Ulp. 9. 1. Ortolan, Insti- 1 Dr Taylor's Elements of the 5 Gai. 1. 119. This trait of Roman manners is brought out in some scenes of the comedies of Plautus. A good-natured fellow buys slaves without observing the forms of mancipatio, and thinks he has made a capital bargain, when an accomplice of the seller appears and claims the slaves as his own, so that the buyer is cheated out of the price. To check these frauds, the prætor allowed the buyer to plead the exceptio rei vendita et traditæ, not only against the seller, but all other persons who derived right from him. These distinctions between res mancipi and nec mancipi, which had fallen into disuse before Justinian's time, were formally suppressed by him.1 The territory of Italy enjoyed the privilege of Roman pro- Jus Italiperty, and was free from the land-tax. This was called the cum. jus Italicum. In the conquered provinces the land was possessed by the inhabitants, subject to payment of the land-tax, from which Italy remained exempt till the third century of the Christian era. Under the emperors the jus Italicum was given to some colonial settlements out of Italy.2 Acquisition by occu pancy. Wild animals. CHAPTER III. OF THE DIFFERENT MODES OF ACQUIRING PROPERTY. THE acquisition of property is either original or derivative. An original acquisition applies to things which have never previously been the property of any one, or which, at least, were not so immediately before the acquisition. A derivative acquisition arises when a person enters into the right of property which had pre-existed in another, and derives the thing from him. In this class of cases there is always a loss of property by the former owner, who makes it over to the new proprietor. Among the original modes of acquiring property, occupancy is the most natural. It consists of taking possession of things which have no owner, with a view to their appropriation. The Romans applied the rule res nullius cedit occupanti, not only to things which had never before been appropriated, but also to those which, though previously acquired, had ceased to belong to any one. There are differ ent kinds of occupancy, according to the different classes of things without an owner. All wild animals, whether beasts, birds, or fish, fall under this rule, so that even when they are caught by a trespasser on another man's land they belong to the taker, unless they are expressly declared to be forfeited by some penal law.1 Deer in a forest, rabbits in a warren, fish in a pond, or other wild animals in the keeping or possession of the first holder, cannot be appropriated by another, unless they regain their liberty, in which case they are free to be again acquired by 1 I. 2. 1. 12. occupancy. Tame or domesticated creatures, such as horses, sheep, poultry, and the like, remain the property of their owners, though strayed or not confined. The same rule prevails in regard to such wild animals already appropriated as are in the habit of returning to their owners, such as pigeons, hawks in pursuit of game, or bees swarming while pursued by their owners.1 Justinian was of opinion that a wild beast does not belong to the person who wounds it, and that the property cannot otherwise be obtained than by actually taking it; "because many accidents frequently happen which prevent the capture."2 In whale-fishing particular rules are established in this country. Where a fish is harpooned with the line attached, or so entangled in the line as to continue in the power or management of the striker, it is a fast fish, and belongs to the striker. But where, without any interference by another, the line breaks, or is not in management, the fish is considered loose, and liable to be captured by any one.3 By the law of nature the chase is free to all men; but the civil law of most nations has imposed restrictions, more or less severe, on this natural liberty. Game-laws are said to be as old as the days of Solon. Among the Romans any one could kill game on his own land or that of another; but every proprietor had the right to prevent strangers from entering upon his ground for the purposes of sport. In 1789 the ancient game-laws of France, which were very oppressive, were repealed; and under the present system every man who possesses landed property may sport on it at stated times, after obtaining a licence or permis de chasse; but no one can sport on another's land without his permission, and if he does so he is liable to an action for damages and to pay fines, both to the proprietor and the commune. A law on the police of the chase was passed on 3d May 1844, and an ordinance of 5th May 1845 regulates the details. In this country the 1 I. 2. 1. 14 and 15. 2 I. 2. 1. 13. Vinnius Com. h. t. 3 Bell's Pr. 5th ed. § 1289. The King's Advocate v. Rankine, 1677, Mor. Dict. p. 11,930. 42 Black. Com. p. 414, note by Coleridge. Bouillet, Dict. Universel des Sciences, des Lettres, et des Arts, voce Chasse. |