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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.)


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