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USURPATIO

USURPATIO and the verb from which it is formed have a variety of meanings in the Roman legal writings. The verb denotes: (1) Simply “to make use of:” e. g. “si judicium defuncti non usurpabitur, sed ad irritum vocatum est, petitio relictorum nullo jure procedit” (Cod. 6, 39, 2). (2) “To wrongfully exercise an alleged but non-existent right” ( “per vim atque usurpationem vindicare,” Cod. 1, 4, 6; cf. Cod. 1, 6, 1: “usurpare illicitum Collegium,” Dig. 47, 22, 2: “curam,” Cod. 1, 30, 3: “honorem,” Dig. 50, 4, 7, 1: “nomen tutoris,” Cod. 5, 6, 8). (3) “To appropriate to oneself,” as in the common English sense of the word (Dig. 4, 6, 40, 1; 10, 1, 8, pr.; 50, 8, 2, 1). (4) “To preserve a right of servitude by its exercise,” as opposed to “non utendo deperdere” (Dig. 8, 6, 6, 1). (5) The interruption of usucapio (Dig. 41, 3, 2; 41, 6, 5). Appius Claudius Caecus, who constructed the Via Appia and brought the Aqua Claudia to Rome, wrote a book De Usurpationibus, which Was not extant in the time of Pomponius (Dig. 1, 2, 36).

Usurpatio in this last sense most commonly occurred from loss of possession, and even if it were subsequently regained the whole period of usucapio had to commence de novo and run again. Before Justinian litis contestatio (to the article on which reference may be made) in an action brought by the owner against the possessor for the recovery of the property interrupted longi temporis praescriptio (Cod. 3, 19, 2; 3, 32, 26), but not usucapio (Dig. 6, 1, 18, 20, 21; 41, 4, 21, 1), and this distinction was retained, apparently by an oversight, in his compilations, though it was not of much importance because, if the defendant lost the action, he still had to give up the property to the plaintiff, notwithstanding [p. 2.988]the completion of usucapio during its pendency ( “usucapio frustra complebitur anticipata lite,” fragm. Vat. 12: cf. Dig. 41, 4, 2, 21; 6, 1, 18). Interruption also ensued from a judicial protest addressed by the owner to the possessor, if the latter was a person whom for some reason or other he was disabled from suing (Cod. 7, 40, 2), and possible also from the owner's being taken captive in war (Dig. 41, 3, 15, pr.; ib. 44, 7; 49, 15, 12, 2; ib. 22, 3; ib. 29). As to the passage in Gellius (3.2) and Macrob. Saturn. (1.3) relating to the non-establishment of manus per usum by absence of the wife per trinoctium, see Savigny, System, &c., 4.365; Puchta, Institutionen, § 199, note y.

A suspension of usucapio, as distinct from its interruption, enabled the possessor to reckon the period of his possession before it took place: this occurred when the property over which the right was being prescriptively established became vested in an owner privileged in respect of usucapio (e. g. the Fiscus, emperor, charitable foundations, &c.), and when the owner was prevented by grounds of law from bringing his real action for its recovery (e. g. in the interval allowed to the heir under Justinian's legislation for preparing an inventory of the deceased's property, Cod. 6, 30, 22, 11).

[J.B.M]

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