Division 3: Private Law -- Five ways to acquire property
Chapter 1: First way of acquiring Property: Occupation
We formerly explained the nature of rights, and divided them into natural and acquired.
- The former need no explanation; the latter are divided into real and personal.
- Real rights are property, servitude, pledge, and exclusive privilege.
- We are first to treat of property.
Property is acquired five ways.
- First, by occupation, or the taking possession of what formerly belonged to nobody.
- Second, by accession, when a man has a right to one thing in consequence of another, as of a horse’s shoes along with the horse.
- Third, by prescription, which is a right to a thing belonging to another arising from long and uninterrupted possession.
- Fourth, by succession to our ancestors or any other person, whether by a will or without one.
- Fifth, by voluntary transference, when one man delivers over his right to another.
We shall first treat of occupation, the laws of which vary according to the periods of human society. The four stages of society are hunting, pasturage, farming, and commerce.
- If a number of persons were shipwrecked on a desert island their first sustenance would be from the fruits which the soil naturally produced, and the wild beasts which they could kill.
- As these could not at all times be sufficient, they came at last to tame some of the wild beasts that they might always have them at hand.
- In process of time even these would not be sufficient; and as they saw the earth naturally produce considerable quantities of vegetables of its own accord, they would think of cultivating it so that it might produce more of them.
- Hence agriculture, which requires a good deal of refinement before it could become the prevailing employment of a country.
- There is only one exception to this order, to wit, some North American nations cultivate a little piece of ground, though they have no notion of keeping flocks.
- The age of commerce naturally succeeds that of agriculture.
- As men could now confine themselves to one species of labour, they would naturally exchange the surplus of their own commodity for that of another of which they stood in need.
- According to these stages occupation must vary.
- Occupation seems to be well founded when the spectator can go along with my possession of the object, and approve me when I defend my possession by force.
- If I have gathered some wild fruit, it will appear reasonable to the spectator that I should dispose of it as I please.
The first thing that requires notice in occupation among hunters is what constitutes it, and when it begins, whether it be on the discovery of the wild beast or after it is actually in possession.
- Lawyers have varied on this head, some give a part to the person who has formerly wounded a wild beast, though [he] have given up the chase, and others do not.
- All agree that it is a breach of property to break in on the chase of a wild beast which another has started, though some are of opinion that if another should wound the beast in its flight he is entitled to a share, as he rendered the taking of it more easy upon the whole.
- Among savages property begins and ends with possession, and they seem scarce to have any idea of anything as their own which is not about their own bodies.
Among shepherds the idea of property is further extended.
- Not only what they carry about with them, but also what they have deposited in their hovels, is their own.
- They consider their cattle as their own while they have a habit of returning to them.
- When the generality of beasts are occupied, they consider them as their own even after they have lost the habit of returning home, and they may be claimed for a certain time after they have strayed.
- But property receives its greatest extension from agriculture.
- When it first became necessary to cultivate the earth, no person had any property in it, and the little plot which was dressed near their hovels would be common to the whole village, and the fruits would be equally divided among the individuals.
- There are the remains of a common land property in our own country at this day.
- In many places there is a piece of ground belonging equally to several persons, and after harvest, cattle are, in many places, allowed to feed where they please.
- Private property in land never begins till a division be made from common agreement, which is generally when cities begin to be built, as every one would choose that his house, which is a permanent object, should be entirely his own.
- Moveable property may be occupied in the very first beginnings of society, but lands cannot be occupied without an actual division.
- An Arab or a Tartar will drive his flocks over an immense country without supposing a single grain of sand in it his own.
- By the laws of many countries there are some things, however, that cannot be occupied by any private person.
- Treasure and derelict goods, by the laws of Britain, belong to the king.
- This arises from that natural influence of superiors which draws everything to itself that it can without a violation of the most manifest rules of justice.
- In like manner seas and rivers cannot be occupied by any private person: unless [it is] particularly specified in your charter, you cannot take large fishes in a river running through your own estate.
- A sea surrounded by several nations cannot be occupied by any one, but all must have a part of the jurisdiction, but any nation may hinder another from fishing in its bays, or approaching its coasts with vessels of war.
Chapter 2: Second way of acquiring Property: Accession
The right of accession is not so much founded in its utility as in the impropriety of not joining it to that object on which it has a dependence.
- The milk of a cow I have purchased may not be of great value, but it is very improper that another person should have a right to bring up his calf upon it.
- The most important accessions are in land property.
- Land property is founded on division or an assignation by the society to a particular person of a right to sow and plant a certain piece of ground.
- In consequence of this right he must also have a right to whatever it produces, trees, fruit, minerals, &c.
- Alluvions made by any river naturally belong to the proprietor of the adjacent territory; but when the additions are very large, as is often the case in low countries, the government claims them, and the proprietor of the adjacent estate must purchase it before he possess it.
The principal dispute concerning accession is, when does the principal belong to me, and the accession to another, or, if they be mixed, to whom does the whole belong?
- It is a maxim in law that no person be a gainer by another’s loss.
- If a man build a house by mistake upon my ground, though the materials be his, it is but reasonable that I should have the house, or be indemnified for my loss.
- In general the accession follows the principal, though in some cases, as where the workmanship is of more value than the materials, substantia cedet formae.
- The lawyers were, however, unwilling directly to contradict their general and established maxim, and therefore evaded it by giving the principal to the proprietor of the accession when it became a new species, that is, when it received a new form and a new name.
- This, however, was liable to exceptions.
- A picture and the board on which it was painted were in Latin of the same species; each was a tabula, and therefore the picture by this amendment still belonged to the proprietor of an insignificant board.
- The most general rule with regard to accessions is: when the thing can be reduced to its primitive form without lessening its value or without any great loss to the proprietor of the accession, the proprietor of the principal may justly claim it, but when this cannot be done, the law justly favours the proprietor of the accession, and obliges him only to content the original proprietor for his property.
Chapter 3: Third way of acquiring Property: Prescription
Prescription is founded on the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession.
- There are four things requisite to form a right by prescription.
- First, bona fides,for if a person be sensible that his right to a thing is bad, it is no injury to deprive him of it, and the indifferent spectator can easily go along with the depriving him of the possession.
- Second, iustus titulus, by which is not meant a title just in all respects, for this is of itself sufficient without anything else, but a iustus titulussignifies some reasonable foundation that the person has to think a thing his own, such as [a] charter of some kind.
- If he claims a right without any such title, no impartial spectator can enter into his sentiments.
- Third, uninterrupted possession is also necessary to prescription, for if the property have often been claimed of him, the former possessor has not derelinquished his right.
- Fourth, the time is only to be reckoned when there was a person to claim the property;
- and therefore the longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.
A iustus titulusis a proof of bona fides,and bona fides is requisite to a iustus titulus.
Kings seldom ever allow their claims to prescribe, at least they account no length of uninterrupted possession sufficient to do it.However, immemorial possession will ever carry this along with it.
- By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place.
- Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country.
- At Rome, [im]moveables once prescribed in two years, but afterwards more was required.
- In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature.
- He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, forty years.
- Among the Romans, it is to [be] observed, that if anyone’s possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again.
- By the English law nothing can interrupt prescription but a claim of the old possessor.
Next: Chapter 4