USUCAPIO
USUCAPIO
Usucapio est adjectio dominii per continuationem possessionis
temporis lege definiti (
Dig. 41,
3,
3: cf. Ulpian,
Reg. 19.8; Isidor.
Orig. 5.25): it is the
acquisition of full Quiritarian ownership by possession continued for a
prescribed period of time. It is not every system of law that recognises
this title to property, and there has been no little speculation as to the
reasons of its existence at Rome. The rationale suggested by Gaius (2.44),
“ne rerum dominia diutius in incerto essent,” and by other
authorities (
Dig. 41,
3,
1;
Cic. pro
Caec. 26;
Dig. 41,
10,
5, pr.), is regarded by
many writers as not satisfying, and the mode in which the subject is
introduced by Gaius himself has led to the theory that usucapio originated
in the distinction between the so-called Quiritarian and Bonitarian
ownerships, a distinction which itself arose from the abandonment in many
cases
[p. 2.983]by the Romans of the old established methods
of conveyance. It would seem that as in primitive times property belonged,
not to the individual, but to the family group, it was according to archaic
law practically inalienable. The head of the family administered it on
behalf of the group, but he could not by conveyance prejudice the rights of
its other members: at Rome alienation first took the guise of a fictitious
action at law, just as in England property which was strictly inalienable
was enabled to be conveyed by the transparent device of a fine or recovery:
the party to whom it was wished to convey the property instituted an action
for the purpose of establishing his pretended title to it against the
would-be conveyor, who made no defence, and so in effect admitted the
plaintiff's right, whereupon the property which was the subject of the
action was adjudged to the latter by the praetor. This process was called
in jure cessio. Owing to its great
inconvenience, a less troublesome method of conveyance (
mancipatio) was subsequently introduced for certain favoured
objects of property, probably those in which dealings were most common
between man and man, and which were called
res
mancipi: but later still it became established that though the
forms of mancipatio or in jure cessio must be strictly observed in order to
transfer ownership in res mancipi, that in res nec mancipi might be conveyed
by traditio or mere delivery--a conveyance of the jus gentium or natural
law. The tables thus were turned, and things which but a little while before
were the easiest were now the most difficult to alienate. But the
cumbrousness and inconvenience of the old forms in contrast with the
simplicity of traditio were now so galling that it became common, when it
was wished to convey a res mancipi, to deliver it merely, though the effect
of this, as the law prescribed mancipatio or in jure cessio, was that
nothing strictly passed except possession; the alienor retained the legal
title or jus Quiritium over the property, and the alienee was said to have
the thing
in bonis by a title which we should
describe as equitable; the phrase “bonitarian ownership”
commonly used to describe his interest is as old as Theophilus. Thus Gaius
says (2.40): “There was originally in Rome only one kind of ownership:
a person was either owner of a thing ex jure Quiritium, or he was not
owner at all. But afterwards ownership was divided, so that one man
might be owner ex jure Quiritium, and another might have the same thing
in bonis.” It is supposed that usucapio was introduced simply for
the purpose of converting this equitable interest into dominium ex jure
Quiritium; for, as Gaius says (2.41), “Semel impleta usucapione
proinde pleno jure incipit, id est, et in bonis et ex jure Quiritium tua
res esse, ac si ea mancipata vel in jura cessa esset.” If this
hypothesis is correct, we must hold that the changes which have been
described as taking place in the law of alienation had occurred, and that
the practice of merely delivering res mancipi had become common, before the
enactment of the Twelve Tables, which regulated if they did not introduce
the law of usucapion (Gaius, 2.42, 54): but, after all, it does not seem
unreasonable to accept the general account of the matter given by the
authorities referred to above, and to find the origin of the rules on this
subject in the failure of other conditions prescribed for the acquisition of
property (such as the requirement of ownership, Gaius, 2.43, or of capacity
of legal action in the alienor), and in the difficulty of proving, after a
considerable interval of time, the validity of a conveyance which as a
matter of fact was perfectly unimpeachable in respect both of form and of
title.
As to the acquisition of property by lapse of time in general, we find two
distinct sets of rules in the Roman law: those of Usucapio, which are part
of the jus civile, and those of Longi temporis possessio or praescriptio
[
PRAESCRIPTIO], which
were introduced by the praetor through the Edict.
Usucapio appears to have been called in the Twelve Tables
usus simply: the addition
auctoritas sometimes found with it (
Cic.
Top. 4;
pro Caec. 19) denotes
the warranty of title incumbent on a vendor by mancipation, or (as some say)
the addition of the jural to the actual element (
usus), with which may be compared the
adjectio
domini in the definition cited above from
Dig. 41,
3,
3,
though there the proper reading may be
adeptio,
which occurs in the definitions of Ulpian (
Reg. 19.8) and
Isidorus (
Orig. 5.25). The time during which the thing must
be possessed, that the possession may be converted into ownership, was by
the Twelve Tables a year for res mobiles, two years for
“fundus” or land (Gaius, 2.42, 44, 54, 204; Cic.
Top.; Isidor.
Orig. loc. cit.): and during
this period the possession must be continuous and unbroken (
Dig. 41,
3,
16: ib. 31, 1; 41, 2, 1, 15; ib. 36); the effect of interruption
[
USURPATIO] was that the
previous possession counted for nothing, the time having to commence afresh
and run again in full. Nor could the possession of one person be added to
that of another; so that if A, having possessed a res mobilis for eleven
months, transferred his possession to B, the latter would still require a
continuous possession of his own for another year before he acquired the
dominium. The only apparent exception to this rule for centuries was that
the heir succeeded to and could reckon as his own the possession of the
person from whom he inherited (
Dig. 4,
6,
30, pr.; 41, 3, 20, 40,
&c.), provided no third person had taken possession of the object in
the interval between the decease and his own acceptance of the inheritance
(
Dig. 41,
3,
20;
41,
4,
6,
2): but this
is accounted for by the “unity of person” which in the Roman
view existed between a deceased man and his heir, and which (as will be
seen) they realised most completely in respect of usucapio: and it was not
till the time of Antoninus and Severus that the doctrine of accessio
temporis or possessionis was admitted upon any transfer of possession
inter vivos, when by an enactment of those
emperors a purchaser was allowed to add to his own possession that of his
vendor (Inst. 2.6, 13). It would seem that subsequently the same thing was
done under other circumstances, as the general word
auctores occurs in
Dig. 44,
3,
5, pr.; and there is
mention of accessio temporis upon transfer of possession by way of legacy,
gift, dowry, pledge, &c. (e. g.
Dig. 44,
3,
5, pr.; ib. 14, 3-5;
41, 2, 13, 6
sq.), though we may perhaps infer from
Dig. 44,
3,
14, pr. ( “de accessionibus possessionum nihil
in perpetuum neque generaliter
[p. 2.984]definire
possumus, consistunt enim in sola aequitate” ) that there was no
established rule of law in the matter, the praetor judging of the
circumstances of each case on the occurrence of litigation, and allowing or
disallowing the claim to accessio as he thought right by means of his power
to grant actions and exceptiones.
The possession must be civil or juristic possession--that is, to the actual
detention there must be superadded the intention to deal with the property
as one's own (
Dig. 41,
3,
25; ib. 13, pr.: see
POSSESSIO); and where it is derivative or
representative (as in the cases of the sequester, pledgee, and precario
rogans), it cannot ripen into dominium, though the possession of the
sequester prevents the acquisition of the property per usucapionem by any of
the sequestrating parties (
Dig. 41,
2,
39). Moreover, the
possession must have been acquired by a
justa
causa or
jutstus titulus (Inst. 2.6, pr.;
Cod. 7, 29, 4); that is to say, the possessor must have obtained it in some
way which would have made him owner, only that in the particular case, owing
to some external defect (e. g. weakness in the transferor's title, or his
incapacity of legal action), acquisition of possession is not equivalent to
acquisition of ownership. The
causa in which
the possession originates is in the authorities expressed by the preposition
pro ( “possidet pro empto, pro
derelicto, pro donato, pro soluto, pro herede, pro legato, pro
dote,” &c.). A
titulus putativus
(as where the possessor erroneously supposes there was an intention to vest
the property in him, “veluti si quis, cum non emerit, emisse re
existimans, possideat: vel cum ei donatum non fuerit, quasi ex donatione
possideat,” Inst. 2.6, 11) would not support usucapio (Inst.
loc. cit.), though it was not hindered if there was
a causa of which the possessor was ignorant (
Dig.
41,
10,
22), or as
to the precise nature of which he was mistaken (
Dig.
41,
3,
31,
6), and even in the absence of titulus altogether it
could proceed if the possessor believed one to exist through an excusable
error of fact (
Dig. 41,
10,
5,
1;
22,
6,
4), as where A commissions B to buy a thing for him which B brings
him with the fraudulent assurance that he has done so (
Dig. 41,
4,
11).
But a person whose possession, notwithstanding the existence of a justus
titulus, did not originate in bona fides could not acquire by usucapio
(Inst. 2.6, pr.; Gaius, 2.43). By bona fides in this connexion seems to be
meant a negative rather than a positive mental state--in other words,
excusable ignorance of fact with regard to the circumstances which in the
particular case prevent acquisition of ownership ( “qui
ignorabat . . . alienum . . . bonae fidei
possessor,”
Dig. 48,
15,
3, pr.: “bonae fides emptor esse videtur, qui
ignoravit eam rem alienam esse, ant
putavit eum qui vendidit jus vendendi habere: puta procuratorem aut
tutorem esse,”
Dig. 50,
16,
109): and the only cases in which its presence can
be really a question are cases of materially defective acquisition, as e. g.
where a non-owner sells and delivers property: here the purchaser, besides
this causa (
pro empto), must not know that it
belongs to some one other than the vendor, or that the vendor has no
authority to sell (
Dig. 50,
16,
109, cited
supr.). Bona fides was required by Roman law only at the inception of
possession (
Dig. 41,
1,
48,
1), and in sales
also at the time of the contract (
Dig. 41,
4,
2, pr., and 13); so that if
the possessor discovered his error a moment after the possession became
vested in him, usucapio was not hindered. This is expressed in the maxim
(which, however, is not classical), “mala fides superveniens non
nocet:” but under the canon and modern civil laws the rule is
different, the presence of bona fides being required throughout the whole
period of possession. If a man's possession commenced in good faith, the
fact of his heir's knowledge that the property was not his own was
immaterial, there being in contemplation of law no break in the continuity
of the possession: and conversely if the ancestor's possession was mala fide
in its inception, ignorance on the heir's part of the flaw in his title did
not avail to enable him to acquire by usucapio.
There were certain anomalous cases in which some of the rules hitherto stated
were varied, or had no application. Thus, if the state sold land which it
held in pledge, and the purchaser (
praediator）
allowed the former proprietor to remain two years in possession without
making entry and ejecting him, the latter recovered his ownership by what
was called
usureceptio ex praediatura (Gaius,
2.61). A second species of usureceptio was where a man conveyed property
fiduciae causa [
PIGNUS], with an
agreement for future reconveyance, to a friend for custody, or by way of
mortgage: here, if he obtained possession, he could regain the ownership in
one year (even though the property was immobilis), unless the original
conveyance had been made as security for a debt which remained undischarged,
in which case he could thus recover only if he had got possession neither by
hire nor by precarium ( “usu receptio lucrativa,” Gaius, 2.59,
60). Again, res mancipi of a woman in the guardianship of her nearest agnate
had been excepted by the Twelve Tables from the operation of usucapio,
unless delivery of them were made by the woman herself with the guardian's
auctoritas (Gaius, 2.47); so that if a man knowingly bought such property
from the woman without the tutor's sanction, the requirement of bona fides
was unsatisfied: but it was provided by a “constitutio
Rutiliana,” of which nothing further is known, that he could acquire
a full title by usucapio unless before its completion the woman offered to
return him the purchase-money (
fragm. Vat. 1). None of these
cases survived to the time of Justinian. Gaius also tells us (2.52) that, if
a man took possession of a res hereditaria, a piece of property belonging to
an inheritance, before the heir, he could acquire it by usucapio in a year
(Gaius, 2.54;
Cic. Att. 1.5), even though a
res immobilis, notwithstanding his knowledge that he had no title to it
whatever (cf.
Plin. Ep. 5,
1): this was called possessio or usucapio pro
herede (Gaius, 2.52), and was also
lucrativa
(ib. 56), “nam sciens quisque rem alienam lucrifacit.” The
reason, he says, why even land could in this case be acquired in a year was
that an hereditas was a res incorporalis, and therefore fell under the
ceterae res which the Twelve Tables had
enacted should be acquirable in the shorter period: and he accounts for this
curious form of usucapio by the desire to induce heirs to make a prompt
aditio of inheritances to
[p. 2.985]which they were
entitled, in order that there might be some one to perform the family sacra,
and to discharge the deceased's liabilities (2.55): considerations which
also probably will account for the doctrine that there could be no theft of
res hereditariae until the heir had taken possession of them (Gaius, 3.201;
Paul.
Sent. rec. 2.31, 11;
Dig. 47,
2,
68-
70;
47,
4,
1,
15). The law on this
subject, however, was altered by a senatusconsultum Juventianum passed at
the instance of the Emperor Hadrian (Gaius, 2.57), by which it was enacted
that, even though the possessor had retained the property for the necessary
year, the usucapio might be avoided by the heir's proving his original title
against him by hereditatis petitio, though, should he not do so, the right
acquired by usucapio would avail against all other persons. Subsequently the
wrongful appropriation of res hereditariae of which the heir had not yet
possessed himself rendered the delinquent liable to a criminal prosecution
under the name of
crimen expilatae hereditatis:
“Si quis alienam hereditatem expilaverit, extra ordinem solet coerceri
per accusationem expilatae hereditatis, sicut et oratione divi Marci
cavetur” (
Dig. 47,
19,
1; cf. ib. 3). After this change
possessio pro herede usually denotes the interest of a person who had
obtained from the praetor a grant of the bonorum possessio or praetorian
inheritance, which usucapio would convert into ownership; but this case was
obsolete in the law of Justinian's time, in which usucapio pro herede
signifies usucapion of a res hereditaria by a person who through an
excusable error believes himself heir (
Dig. 41,
3,
33,
1), or of res non hereditariae by the heir who supposes them to
belong to the inheritance (
Dig. 41,
5,
3).
Usucapio being a “civil” mode of acquisition, by which the
possessor became dominus ex jure Quiritium, it followed that no person could
avail himself of it who had not the
commercium:
this in particular excluded peregrini, as was signified by the phrase of the
Twelve Tables “adversus hostem aeterna auctoritas” (
Cic. de Off. 1.1. 2, 37): so,
too, Gaius says (2.65), “usucapionis jus proprium est civium
Romanorum.” Similarly things which were not
in
commercio, incapable of being owned by private individuals,
were excluded from its operation: among these were
res
divini juris, such as temples and lands dedicated to the gods,
sepulchres and their approaches:
res communes
and
res publicae, especially provincial soil
(Gaius, 2.46) and free men (Gaius, ib. 48). There were also a number of
other things which could not be acquired by usucapion, some on account of
their actual nature, some by reason of positive enactment.
As the foundation of the right is possession, and. nothing can be possessed
but what is corporeal and tangible ( “possideri autem possunt, quae
sunt. corporalia . . . nec possideri intelligitur jus incorporale,”
Dig. 41,
2,
3, pr.; 41, 3, 4, 27), a title to mere incorporeal
rights, such as servitudes and other jura in re aliena, could not be
established in this manner. It would seem that in respect of urban
servitudes this doctrine had been reversed--perhaps because in them there
was a greater semblance of physical possession--and that the acquisition of
them by usucapio had to be declared void by statute (the Lex Scribonia: see
SERVITUTES): though
those writers who suppose that usucapio was introduced solely to perfect the
traditio of res mancipi contend that rustic servitudes, or at least some of
them, could originate in this manner (Engelbach,
Ueber die Usucapion
zur Zeit der Zwölf Tafeln, Marburg, 1828). But the
determination of servitudes by non-user, as to which there was never any
doubt (Paul.
Sent. rec. 1.17; ib. 3.6, 30), was in effect a
usucapio of libertas--a phrase actually used, in speaking of the extinction
of urban servitudes, in
Dig. 8,
2,
6; and it would seem that eventually a
title to rights of this class could be established by longi temporis
possessio or praescriptio [
SERVITUTES].
The withdrawal of certain corporeal things subject to private dominium from
the operation of usucapio was due either (1) to the wish to confer a
privilege on the owner, or (2) to the character of the property itself. To
the former class belong (
a) res mancipi of
women in agnatic guardianship, of which enough has been already said above.
(
b) Property of towns ( “usucapionem
recipiunt maximè res corporales, exceptis rebus. . .
civitatum,”
Dig. 41,
3,
9: cf.
Dig. 6,
2,
12,
2), though their land could be acquired by a praescriptio of twenty
years (Paul.
Sent. rec. 5.2, 4). (
c）
Res immobiles of churches and religious and charitable foundations
(
Nov. 3.1, 131, 6). (
d) Property
of the fiscus, though
bona vacantia were not
excepted from usucapio until they had been
nuntiata (Inst. 2.6, 9;
Dig. 41,
3,
18,
24): the same privilege was extended to the private property of the
emperor (Cod. 7, 30, 2; 7, 38, 2, 3; 11, 61, 64). (
e) Things belonging to pupilli or to minors under cura, the
alienation of which was prohibited by law (
Dig. 27,
9; Cod. 5, 71-74;
Dig.
8,
6,
10, pr.; 41,
1, 48, pr.).
To the second class belong the following:--(
a）
Res furtivae, stolen property, which was excepted from usucapio by the
Twelve Tables (Gaius, 2.45; Inst. 2.6, 2), whose enactment was repeated by a
lex Atinia (Inst.
loc. cit.;
Gel. 17.7;
Cic. in
Verr. 2.1, 42;
Dig. 41,
3,
4,
6; ib. 33, pr.; 50, 16, 215) of unknown date, which added that the
vitium furti should be purged as soon as the owner (or his agent to his
knowledge) regained possession of the stolen property, or was able to bring
a vindicatio for its recovery (Inst. 2.6, 8). So too if a nonowner pledged a
res aliena or gave it to another in usufruct, and subsequently stole it from
the pledgee or usufructuary, recovery of possession by the latter made the
thing again acquirable by usucapio (
Dig. 41,
3,
49). The result was that
not even a possessor in good faith of property which had been stolen at any
distance of time could acquire a title to it in this manner, and Gaius
(2.50) observes that it was consequently extremely difficult for a mere
bonâ.-fide possessor (who was not also Bonitarian owner) to become
owner ex jure Quiritium by usucapio of movable property, because any
unauthorized dealing with a res which to one's knowledge was aliena (i. e.
not one's own) was theft in contemplation of law, though he mentions some
cases by way of illustration in which it was possible: as where an heir
sells property which had been deposited with, or let or lent to, the
deceased, but which he believed to belong to the inheritance; or where the
[p. 2.986]usufructuary of a female slave sells or gives
away her offspring in the belief that he was entitled to do so: in both of
which instances the bona fides of the alienor excludes the presumption of
furtum. Fugitive slaves could not be acquired by usucapio on the same
principle (Inst. 2.6, 1), their running away being regarded as a theft of
themselves (Cod. 6, 1, 1). Land could not be stolen (Inst. 2.6, 7). and
therefore did not come within the provisions of the Twelve Tables or the Lex
Atinia: but it was enacted by leges Julia and Plautia (Gaius, 2.45,
51;--
Dig. 41,
3,
4,
22,
23; ib. 48, pr.) that
res vi possessae
(and thus land from which the tenant had been forcibly ousted) should be
equally excluded from the operation of usucapio, until the tenant recovered
possession or was in a position to bring a vindicatio (Inst. 2.6, 8).
Justinian points out in the Institutes that a title to land in general could
be more easily thus acquired than to movable property, because there would
be no
vis in a man's entering on a
locus vacans; and though he could not become its
owner himself, because his possession was mala fide, yet a bong-fide
possessor to whom the land was conveyed by him without knowledge of the
defect in his title could do so (Inst. 2.6, 7). (
b) Fundus dotalis, land comprised in a dos, was forbidden to be
alienated by the Lex Julia de fundo dotali (Gaius, 2.63; Inst. 2.8, pr.), a
prohibition which also excepted it from acquisition by usucapio if it came
into the possession of a third person after the dos was created (
Dig. 23,
5,
16), it being a general rule that wherever alienation of
property was forbidden by statute, its usucapion was forbidden also (
“alienationis verbum etiam usucapionem continet, vix est enim, ut
non videatur alienare, qui patitur usucapi,”
Dig. 50,
16,
28, pr.). Justinian further enacted (Cod. 5, 12, 30)
that to an action brought by the wife against a third person for the
recovery of any dotal property, movable or non-movable, no exceptio of
usucapio or praescriptio should be pleadable. (
c) By
the Lex Julia repetundarum it was provided that no one should be able to set
up a title by usucapio to any property of which a provincial governor had
become possessed against the laws relating to extortion (
Dig. 48,
11,
8,
pr.; 41, 1, 48, pr.): but (as in cases of theft) the
vitium was removed by the revesting of possession in the
owner (
Dig. 48,
11,
8,
1). (
d) It was declared by the Lex Mamilia that the space of five feet
which the law required to be left clear between landed estates should not be
acquirable by usucapio ( “quoniam usucapionem intra quinque pedes esse
noluerunt,”
Cic. de Legg. 1.2. 1, 55),
though under the law of Justinian it was liable to a thirty years'
prescription (Cod. 3, 39, 6). (
e) Building
materials of one man used by another without the former's knowledge were not
subject to usucapio so long as they remained part of the structure (
Dig. 41,
1,
7,
11;
6,
1,
23,
7). (
f) Other
res of less importance excepted from usucapion are those
belonging to the so-called peculium adventitium regulare of filiifamilias
(Cod. 6, 60, 1; 6, 61, 4), and property which devolves on children of a
first marriage owing to the parents' marrying again (
Nov. 22,
24).
Two peculiar subjects to which usucapio applied under the older law deserve a
brief notice. One of the modes in which a husband could obtain manus over
his wife was
usus, residence under his roof
continuously for a year, though she could save her independence by staying
away three successive nights (Gaius, 1.110; Gell.
Noct. Aft.
iii.; Macrob.
Saturn. 1.3): Cicero mentions
this as a way in which manus could originate even in his time (
pro Flacco, 34), but at the time at which Gaius
wrote it was obsolete (1.111). Originally, too, hereditates were regarded as
acquirable by usucapio (Gaius, 2.54), so that even the sacra passed to the
person who became entitled to them in this manner (
Cic. de Legg. 2.1. 9
sq.; pro Flacco, 34;
ad Att. 1.5), but in the
early days of the Empire this doctrine began to be questioned, and by the
time of Gaius (
loc. cit.) it was settled that though
res hereditariae could still be thus acquired, the
“universitas” could not.
The rules as to acquisition by lapse of time which were established through
the Edict originated partly perhaps in the incapacity of peregrini to gain a
title to property by the civil law usucapio (though this is more a matter of
inference than of positive knowledge: see Puchta,
Institutionen, § 240, note
b), and partly also in the exemption of provincial soil from its
operation. A person who had acquired a bonâ--fide possession of
land by a justus titulus, and retained it continuously for ten years (or
twenty if the alleged owner resided in a different province), was enabled by
the edict of the governor to plead in defence to an action brought against
him by such owner for its recovery the length of his possession
(praescriptio or exceptio longi temporis: see
PRAESCRIPTIO), and on proof of his plea the
plaintiff would have judgment given against him (Paul.
Sent.
rec. 5.2, 3, 4; 5.5a, 8). The positive enactments excluding certain
things from this mode of acquisition on account of a vitium (e. g., res
furtivae and in possessae) were as a rule applied here as well as in
usucapio: but accessio temporis was generally allowed where the possession
had been derived from another person by a genuine succession of title (e. g.
between donor and donee, testator and legatee, &c.), which in
usucapio we have seen was not the case. At first Praescriptio longi temporis
operated only as a rule of Limitation, not making the possessor owner, but
merely enabling him to repel the action of an owner who had been for a
certain period out of possession; but it would seem that in course of time
it acquired the operation of usucapio, a man who had possessed provincial
land for the time required by the edict being able to bring a real edict for
its recovery if he lost possession: “Si quis emptionis vel donationis
vel alterius cujuscunque contractus titulo rem aliquam bona fide per
decem vel viginti annos possederit . . . posteaque fortuito casa
possessionem qui rei perdiderit, posse eum etiam actionem ad vindicandam
rem eandem habere saucimus,
hoc enim et veteres
leges, si quis eas recte inspexerit, sanciebant” (Cod.
7, 39, 8, pr.: cf.
Dig. 12,
2,
13,
1).
Praescriptio also became a title to servitudes on Italian no less than
provincial soil (
Dig. 8,
5,
10, pr.), and probably also (for peregrini) to
res mobiles all over the Empire ( “rescriptis quibusdam Divi Magni
Antonini cavetur, ut in rebus mobilibus locus sit praescriptioni
diutinae
[p. 2.987]possessionis,”
Dig. 44,
3,
9): indeed, considering its advantages over usucapio
in respect of accessio temporis and in some other points (
Dig. 41,
3,
44,
5;
20,
1,
1,
2;
44,
3,
5,
1; ib. 12;--Cod. 4, 10, 14; 7, 36), it
was perhaps sometimes relied upon as a title to soil in Italy. Indeed, the
new rules seem to have entirely superseded those of usucapio in the Empire
of the Visigoths, whose Lex Romana contains, in the Sentences of Paulus, a
title “de Usucapione” (5.2), the contents of which however
relate entirely to longi temporis praescriptio or possessio. In the Eastern
empire the two bodies of law subsisted side by side up to the time of
Justinian; the acquisition of land being for the most part governed by rules
of Praescriptio (for, with the exception of the few towns which had as a
favour received a grant of jus Italicum, the whole of its soil was
provinciale), and that of res mobiles by those of
the old usucapio.
Justinian himself completely reformed the law on this subject. In A.D. 528 he
issued a constitution definitely establishing the effect of longi temporis
praescriptio as a mode of acquiring dominium, a point which seems hitherto
not to have been clearly settled (Cod. 7, 39, 8, pr., cited above), and
three years later he abolished the old two years' usucapio for land, and
with it the distinction between solum Italicum and solum provinciale,
enacting that the latter no less than the former should be acquirable in
absolute ownership by a possession of ten years if both the parties were
domiciled in the same, twenty if in different provinces (Cod. 7, 31). He
further substituted for the old usucapio of one year for res mobiles one of
three years, assimilated the rules both as to movables and immovables in
respect of titulus, bona fides, and the kinds of things which could not be
acquired in this manner, and allowed accessio temporis to the fullest extent
in which it had been recognised by the praetorian law. The term
“usucapio” is in his legislation confined to the
acquisition of res mobiles, while that of land is very uniformly described
by the terms “longo tempore capio,”
“longa possessione capio,”
“diutina possessione capio,”
“longi temporis possessio” or “praescriptio,”
though sometimes the two are combined (e. g. Inst. 2.6, pr.:
“immobiles . . . per longi temporis possessionem . . .
usucapiantur” ).
Finally by Cod. 7, 39, 8, pr. and I, Justinian introduced a new species of
Prescription, usually termed “longissimi temporis praescriptio”
or “usucapio extraordinaria,” and based upon Theodosius
II.‘s thirty or forty years' limitation of actions [
PRAESCRIPTIO], according to
which a person who could successfully meet a real action brought against him
by another for the recovery of property, movable or immovable, by the plea
of thirty years' possession, was empowered, if his own possession had
commenced in good faith, to himself bring a vindicatio against third
persons: in other words, he was under such circumstances recognised as
owner. As in the ordinary usucapio or praescriptio, accessio temporis was
allowed to the fullest extent where there had been a succession in title
between two possessors: but here there was no requirement of justus titulus;
and though res extra commercium could not be thus acquired, all other things
excepted from the ordinary usucapion or prescription were subject to
acquisition in this longer period except property of pupilli, res dotales,
and peculium adventitium regulare. The foundation of this new institution on
Theodosius' limitation of actions appears in the rule, that in those cases
where the period of limitation was forty years (i. e. where the property
belonged to the church, a charitable foundation, the Fiscus, emperor or
empress) the prescription must be of the same duration: and that where time
could not be counted for purposes of limitation, it could not be reckoned
for purposes of prescription either: e. g. the period during which the
original owner was impubes could not be considered.
(Gaius, 2.41-61; Ulpian,
Reg. 19.8; Paul.
Sent.
rec. 5.2; Inst. 2.6;--
Dig. 41,
3-
11;
44,
3;--Cod. Theod. 4, 13;--Cod. 7, 26-31;
33-37. For discussions as to the original purpose of usucapio, reference may
be made to Engelbach,
Ueber die Usucapion zur Zeit der Zwölf
Tafeln, Marburg, 1828, and Schirmer,
Grundidee der
Usucapion, 1855. For the subject in general, see Puchta,
Institutionen, § § 239, 240; Baron,
Pandekten, § § 144-147; Vangerow,
Lehrbuch der Pandekten, § § 314-325.;
and in particular Unterholzner,
Verjährsungslehre,
2nd edit., 1858. For titulus, Stintzing,
Das Wesen der bona fides und
titulus in der römischen Usucapionslehre, 1853; Mayer,
Die justa causa bei Tradition und Usucapion, 1871. For
bona fides, Möllentheil,
Ueber die Natur des guten Glaubens
bei der Verjährung, 1820, and Wächter,
Die bona fides insbesondere bei der Ersitzung des
Eigenthums, 1871.)
[
J.B.M]
