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- The Institutes of Justinian - 10/41 -

owner, he at once becomes its owner himself: and a thing is said to be abandoned which its owner throws away with the deliberate intention that it shall no longer be part of his property, and of which, consequently, he immediately ceases to be the owner. 48 It is otherwise with things which are thrown over- board during a storm, in order to lighten the ship; in the ownership of these things there is no change, because the reason for which they are thrown overboard is obviously not that the owner does not care to own them any longer, but that he and the ship besides may be more likely to escape the perils of the sea. Consequently any one who carries them off after they are washed on shore, or who picks them up at sea and keeps them, intending to make a profit thereby, commits a theft; for such things seem to be in much the same position as those which fall out of a carriage in motion unknown to their owners.


Some things again are corporeal, and others incorporeal. 1 Those are corporeal which in their own nature are tangible, such as land, slaves, clothing, gold, silver, and others innum- erable. 2 Things incorporeal are such as are intangible: rights, for instance, such as inheritance, usufruct, and obligations, however acquired. And it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something cor- poreal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal. 3 So too the rights appurtenant to land, whether in town or country, which are usually called servitudes, are incorporeal things.


The following are rights appurtenant to country estates: ‘iter,’ the right of passage at will for a man only, not of driving beast or vehicles; ‘actus,’ the right of driving beasts or vehicles (of which two the latter contains the former, though the former does not contain the latter, so that a man who has iter has not necessarily actus, while if he has actus he has also iter, and consequently can pass himself even though unaccompanied by cattle); ‘via,’ which is the right of going, of driving any thing whatsoever, and of walking, and which thus contains both iter and actus; and fourthly, ‘aquaeductus,’ the right of conducting water over another man's land. 1 Servitudes appurtenant to town estates are rights which are attached to buildings; and they are said to appertain to town estates because all buildings are called `town estates,' even though they are actually in the country. The following are servitudes of this kind -- the obligation of a man to support the weight of his neighbour's house, to allow a beam to be let into his wall, or to receive the rain from his neighbour's roof on to his own either in drops or from a shoot, or from a gutter into his yard; the converse right of exemption from any of these obligations; and the right of preventing a neighbour from raising his buildings, lest thereby one's ancient lights be obstructed. 2 Some think that among servitudes appurtenant to country estates ought properly to be reckoned the rights of drawing water, of watering cattle, of pasture, of burning lime, and of digging sand.

3 These servitudes are called rights attached to estates, because without estates they cannot come into existence; for no one can acquire or own a servitude attached to a town or country estate unless he has an estate for it to be attached to. 4 When a landowner wishes to create any of these rights in favour of his neighbour, the proper mode of creation is agreement followed by stipulation. By testament too one can impose on one's heir an obligation not to raise the height of his house so as to ob- struct his neighbour's ancient lights, or bind him to allow a neighbour to let a beam into his wall, to receive the rain water from a neighbour’s pipe, or allow a neighbour a right of way, of driving cattle or vehicles over his land, or conducting water over it.


Usufruct is the right of using and taking the fruits of property not one's own, without impairing the substance of that property; for being a right over a corporeal thing, it is necessarily ex- tinguished itself along with the extinction of the latter. 1 Usu- fruct is thus a right detached from the aggregate of rights involved in ownership, and this separation can be effected in very many ways: for instance, if one man gives another a usufruct by legacy, the legatee has the usufruct, while the heir has merely the bare ownership; and, conversely, if a man gives a legacy of an estate, reserving the usufruct, the usufruct belongs to the heir, while only the bare ownership is vested in the legatee. Similarly, he can give to one man a legacy of the usufruct, to another one of the estate, subject to the other's usufruct. If it is wished to create a usufruct in favour of another person otherwise than by testament, the proper mode is agreement followed by stipulation. However, lest ownership should be entirely valueless through the permanent separation from it of the usufruct, certain modes have been approved in which usufruct may be extinguished, and thereby revert to the owner. 2 A usufruct may be created not only in land or build- ings, but also in slaves, cattle, and other objects generally, except such as are actually consumed by being used, of which a genuine usufruct is impossible by both natural and civil law. Among them are wine, oil, grain, clothing, and perhaps we may also say coined money; for a sum of money is in a sense extinguished by changing hands, as it constantly does in simply being used. For convenience sake, however, the senate en- acted that a usufruct could be created in such things, provided that due security be given to the heir. Thus if a usufruct of money be given by legacy, that money, on being delivered to the legatee, becomes his property, though he has to give security to the heir that he will repay an equivalent sum on his dying or undergoing a loss of status. And all things of this class, when delivered to the legatee, become his property, though they are first appraised, and the legatee then gives security that if he dies or undergoes a loss of status he will ay the value which was put upon them. Thus in point of fact the senate did not introduce a usufruct of such things, for that was beyond its power, but established a right analogous to usufruct by requiring security. 3 Usufruct determines by the death of the usufructuary, by his undergoing either of the greater kinds of loss of status, by its improper exercise, and by its non-exercise during the time fixed by law; all of which points are settled by our consti- tution. It is also extinguished when surrendered to the owner by the usufructuary (though transfer to a third person is in- operative); and again, conversely, by the fructuary becoming owner of the thing, this being called consolidation. Obviously, a usufruct of a house is extinguished by the house being burnt down, or falling through an earthquake or faulty construction; and in such case a usufruct of the site cannot be claimed. 4 When a usufruct determines, it reverts to and is reunited with the ownership; and from that moment he who before was but bare owner of the thing begins to have full power over it.


A bare use, or right of using a thing, is created in the same mode as a usufruct, and the modes in which it may determine are the same as those just described. 1 A use is a less right than a usufruct; for if a man has a bare use of an estate, he is deemed entitled to use the vegetables, fruit, flowers, hay, straw, and wood upon it only so far as his daily needs require: he may remain on the land only so long as he does not incon- venience its owner, or impede those who are engaged in its cultivation; but he cannot let or sell or give away his right to a third person, whereas a usufructuary may. 2 Again, a man who has the use of a house is deemed entitled only to live in it himself; he cannot transfer his right to a third person, and it scarcely seems to be agreed that he may take in a guest; but besides himself he may lodge there his wife, children, and freedmen, and other free persons who form as regular a part of his establishment as his slaves. Similarly, if a woman has the use of a house, her husband may dwell there with her. 3 When a man has the use of a slave, he has only the right of personally using his labour and services; in no way is he allowed to transfer his right to a third person, and the same applies to the use of beasts of burden. 4 If a legacy be given of the use of a herd or of a flock of sheep, the usuary may not use the milk, lambs, or wool, for these are fruits; but of course he may use the animals for the purpose of manuring his land.

5 If a right of habitation be given to a man by legacy or in some other mode, this seems to be neither a use nor a usufruct, but a distinct and as it were independent right; and by a consti- tution which we have published in accordance with the opinion of Marcellus, and in the interests of utility, we have permitted persons possessed of this right not only to live in the building themselves, but also to let it out to others.

6 What we have here said concerning servitudes, and the rights of usufruct, use, and habitation, will be sufficient; of inherit- ance and obligations we will treat in their proper places respect- ively. And having now briefly expounded the modes in which we acquire things by the law of nations, let us turn and see in what modes they are acquired by statute or by civil law.


It was a rule of the civil law that if a man in good faith bought a thing, or received it by way of gift, or on any other lawful ground, from a person who was not its owner, but whom he believed to be such, he should acquire it by usucapion -- if a movable, by one year's possession, and by two years' pos- session if an immovable, though in this case only if it were in Italian soil; -- the reason of the rule being the inexpediency of allowing ownership to be long unascertained. The ancients thus considered that the periods mentioned were sufficient to enable owners to look after their property; but we have arrived at a better opinion, in order to save people from being over- quickly defrauded of their own, and to prevent the benefit of this institution from being confined to only a certain part of the empire. We have consequently published a constitution on the subject, enacting that the period of usucapion for movables shall be three years, and that ownership of immovables shall be acquired by long possession -- possession, that is to say, for ten years, if both parties dwell in the same province, and

The Institutes of Justinian - 10/41

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