Page:Catholic Encyclopedia, volume 9.djvu/106

 LAW

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LAW

Bocrce were publicly consecrated to the gods; places of burial were ^things rdigiosce; things mncUB were so called because protected by a penal sanction — ^thus the city walls, gates, ditch, etc. were aanctce. None of these could be part of an individual's patrimony, because they were considered as not in commerce.

Things humani juris were the things with which the private law concerned itself. Things are conunon when the ownership is in no one, anof the enjoyment open to all. In an analogous wav, things are public wnen the ownership is in the people, and the use in in- dividu^s. The air, flowing water, the sea, etc. were things common to all, and therefore the property of none. The seashore, rivers, gates, etc., were public. Private things were such as were capable of private ownership and could form part of the patrimony of individuals. Again, thin^ were collective or singular. The once important distinction between res mancipi and nee mancipi was suppressed by Justinian. Res mancipi were those things which the Romans most highlyprized: Italian soil, rural servitudes, slaves, etc. Tnese required formal mancipation.

Things were either corporeal or incorporeal: cor- pora were those quce tangi possunt (which can be touched — tangible). Detention or naked possession of a thing was the mere physical faculty of disposing of it. Possession was the detention of a corporeal thmg coupled with the animus dominiiy or intent of owner- ship. It might be in good faith or in bad: if there was a just title, the possession was just: if not, unjust. A true possession was possible of a corporeal thing oi^y; quasi-possession was the term employed in reference to an incorporeal thing, as .a right. The jus posses- sionis was the entirety of riehts which accrued to the possession as such. The advantages of possession as mdependent of ownership were as follows: the pos- sessor had not the burden of producing and proving title; sometimes he enjoyed the fruits of the thing; he retained the thing until the claimant made proof; he stood in a better position in law than the claimant, and received the decision where the claim was not fully established; the possessor might retain the thing by virtue of the jus reteniionist until reimbursed for chaises and outlays; the possessor in eood faith was not liable for culpa (fault). One might not recover possession by violence or self-help.

A right in re was a real right, valid against all the world; a right ad rem was an obligation or personal right against a particular person or persons. Rights in re were ownership, inheritance, servitudes, pledge, etc. Ownership was quiritarian or bonitarian: qmri- tarian, when acquired by the jus civile only available to Roman citizens; bonitarian, when acquired by any natural, as distinguished from civil, means. This dis- tinction was removed by Justinian. There could be co-ownership or sole ownership.

The modes of acquiring ownership were of two genera, arising from natuml law and from civil law. One acquired, by natural law, in occupation, acces- sion, perception of fruits, and by tradition (delivery). Occupation occurreii in acquisition by hunting, fishing, capture in war, etc. The right of post-liminium was the recovery of rights lost through capture in war, and in proper cases applied to immoveables, moveables, ana to the status of persons. Finding was also a means of occupation, since a thing completely lost or abandoned was res nuUius, and therefore belonged to the first taker.

Accession was natural, industrial, or mixed. The birth of a child to a slave woman was an instance of natural accesdon; so also, was the formation of an island in a stream. This accrued to the riparian owners proportionately to their frontage along the side of the river towards which the island was formed. Alluvion was the slow increment added to one's ripar- ian property by the current. Industrial accession re- quired human intervention and occurred by adjunctio, IX.— 6

spedficatio, or commixtio^ or by a species of the latter, confusio. Mixed accession took place by reason of the maxim: Whatever is planted on the soil, or connected with it, belongs to the soil.

In perception of fruits the severance or taking of revenue might be by the owner or by another, as by the usufructuary, the lessee (in locatio-conductio), by the creditor (in antichresis), and by the possessor in good faith.

Tradition was the transfer of possession and was a corporeal act, where the nature of the object per- mitted. CJorporeal things were moveables or immove- ables. In modern civil law, incorporeal things are moveables or immoveables, depending upon the na- ture of the property to which the rights or obligations attach. In Roman law obligations, rights, and ao- tions were not embraced in the terms moveables and immoveables.

The vindicatory action (rei vindiccUio) went to the direct question of ownership, and ownership was re- quired to be conclusively proved. Complete proof of ownership was often extremely difficult, or impossible, and the Frsetor Publicius devised the actio pMiciana available to an acquirer by just title and in good faith, but who could not establish the ownership of his author. It was available to such an acquirer against a claimant who possessed infirmiure jure.

Ownership {dominium) is an absolute right in re, A servitude (sometimes called a dismemberment of ownership) was a constituted right in the property of another, whereby the owner was bound to suffer something, or abstain from doing something, with re- spect to his property, for the utility of some other per- son or thing. A servitude was not a service of a per- son, but of a thing, and to adjoining land or to a person. Servitudes due to land were real (predial), while servitudes due to a person as such were personal. There were servitudes which might be considered as either real or personal, and others, again, which could only be personal, such as usufruct, use, habitation, ana the labour of slaves. A real servitude existed when land was servient to land. Such a servitude was either urban or rural, depending not so much on whether the servitude was exercised in the city or country as upon its relation to buildings. Servitudes consisted in something essentially passive, in patiendo vd in non faciendo; never in jaciendo. Servitudes which consisted in patiendo were affirmative and those in rum faciendo were negative. Servitudes could arise by agreement, last will, or prescription.

There were numerous urban predial servitudes: as onus ferendi, by which one's construction was bound to sustain the columns of another or the weight of his wall; tigni immittendi, the right to seat one's timbers in his neighbour's wall; projiciendi, the right to over- hang one's timbers over the land of another, although in no way resting on the other's soil; protegendi, a similar right of projecting one's roof over another's soil. The servitudes stiUicidii and fluminis recipiendi were similar: stiUicidium was the right to drip; and fluminis recipiendi, the right to discharge rainwater collected in canals or gutters. The servitude ottiiw non toUendi was a restriction on the height of a neigh- bour's construction while altius toUendi was an affirma- tive right to carry one's construction higher than otherwise permitted. Servitudes of light and. pros- pect were of similar nature.

Rural predial servitudes were iter, actus, via, aqtuB- ductus, and the like. The servitude of iter (way) was an eight-foot roadway in the stretehes, with accom- modation at the turns. It included the right of driving vehicles and cattle, and the lesser right of foot- passage. Actus was a right of trail of four feet in which cattle or suitable narrow vehicles might be driven. Iter was a mere right of path. In these servitudes the lesser was included in the greater. The nature of the right of aquaductus is obvious, as well