PUBLICIANA IN REM ACTIO
PUBLICIANA IN REM ACTIO is the action granted by the Praetor's
Edict to a person who had commenced the usucapion of a thing, and by which
he was enabled to recover possession of it if lost before that usucapion was
completed. Possibly the Publicius by whom it was introduced was the one who
was praetor in Cicero's time (
pro Cluentio, 45,
126). The terms of the Edict are given in
Dig. 6,
2,
1, pr., and the
formula of the action by Gaius (4.36), from whom it appears that the ground
upon which the recovery proceeded was a fiction that the period of time
required for a complete usucapion had run its course: “dicit (actor)
rem se usucepisse, et ita vindicat suam esse” (Inst. 4.6, 4). The
action was open to the bonitarian owner [
DOMINIUM] as well as to the bonâ--fide
possessor, though it is disputed whether this was so under the original
Edict of Publicius, or whether it was not extended to the former, with a
distinct formula, by a later edict; it being in fact a moot point among
civilians whether the true and original principle on which the action rested
was inchoate ownership or bonâ--fide possession: in favour of the
former are Huschke and Schirmer, of the latter Brinz and Bruns. Probably the
first view is correct, with the proviso that a person who had commenced to
acquire by
longi temporis possessio (a merely
praetorian title) was no less able to institute the action than one who had
entered upon the civil law usucapion (
Dig. 6,
2,
11,
1; ib. 12, 2): though the fact that usucapio extraordinaria was
proceeding (e. g. of a res furtiva) was not sufficient basis for it (Dig.
ib. 9, 5). By the classical jurists it was disputed (Dig. ib. 4; ib. 7, 2;
41, 2, 16) whether the action could be founded on a
titulus putativus, i.e. where the possessor was mistaken as
to the ground on which he had acquired possession (e. g. Inst. 2.6, 11),
though in the modern civil law this is generally admitted. But in no case
would it lie against the real owner of the property in question (
Dig. 6,
2,
16,
17), unless the latter, had he
brought a real action against the possessor for its recovery, could have
been himself repelled by a justa exceptio (e. g. doli, rei venditae et
traditae, or rei judicatae); in this case, on the actio Publiciana being met
by the exceptio justi dominii, the plaintiff could retort with replicatio
doli, rei venditae et traditae, &c. Nor could the Publician action
be effectually brought against another bonâ--fide possessor of the
same property, unless the latter derived his possession from the same
“auctor” as the former, but by a later act of traditio
(
Dig. 6,
2,
9,
4).
Even though it be admitted that the sole condition of the action was
usucapion possession (civil or praetorian), it cannot be denied that it
found a very large application in cases of bonitary ownership, especially
where a res mancipi had been merely tradita, so that ownership in it was not
transferred. Upon Justinian's abolition of the distinction between res
mancipi and nec mancipi, it became useless for any other purpose than a case
of bonâ--fide possession, and this seems to explain why the words
“non a domino” appear in the Edict as cited in the Digest,
as it
[p. 2.524]seems clear from
Dig.
6,
2,
7,
11 (cf. Gaius, 4.36) that they did not originally
form part of it.
The action was further extended, from the recovery of a feigned ownership, to
the establishment of servitudes which could not be claimed by a civil law
actio in rem (
Dig. 6,
2,
11,
1), and of other
jura in re aliena: emphyteusis (
Dig. 6,
2,
12,
2), superficies (
Dig. 43,
18,
1,
3,
6) and pignus (
Dig. 20,
1,
18). So, too, the
bonâ--fide possessor and other persons who could bring the actio
Publiciana directly could bring an actio negatoria in Publician form against
persons claiming servitudes over the property in question.
（
Dig. 6,
2; Gaius, 4.36;
Inst. 4.6, 4 and 31; Huschke,
Das Recht der pubicianischen
Klage, Stuttgart, 1874; Schirmer and Schulin,
Krit. V. J.
Schrift. xviii. pp. 347-362, 526-545; Brinz,
Lehrbuch, 1. § § 178, 179; Windscheid,
Lehrbuch, § 199; Vangerow,
Pandekten, § 335.)
[
J.B.M]
