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1220

USUCAPIO.

declared that the ownership of res soli could be | acquired by usucapio in two years, and all other things in one year: now as the hereditas was not a res soli it must be included in the " other things," and it was further determined that the several things which made up the hereditas must follow the rule as to the hereditas ; and though the rule as to the hereditas was changed, it continued as to all the things comprised in it. (Seneca, De Benef. vi. 5.) The reason of this " improba possessio et usu­capio," says Gaius, was that the heres might be in­duced the sooner to take possession of the hereditas, and that there might ;be somebody to discharge the sacra, which in ancient times (illis temporibus) were very strictly observed ; and also that there might be somebody against whom the creditors might make their demands. This kind of Possessio and Usucapio was called Lucrativa. In the time of Gaius it had ceased to exist, for a Senatusconsultum of Hadrian's time enabled the heres to recover that which had been acquired by'Usucapio, just as if there had been no Usucapio ; but in the case of a heres necessarius, the old rule still remained. (Gaius, ii. 52—58 ; Cic. Top. 6 ; Plin. 'Ep.v. 1.)

Gaius mentions'a mode of acquisition under the name of Usureceptio. If a man mancipated a thing to a friend or transferred it by the In Jure Cessio, simply in order that the thing might be in his friend's safe keeping (fiduciae causa; quad tutius nostrae res apud eum esseiitt\ he had always a capacity for recovering it. In order to recover immediately the Quiritarian ownership of the thing, Remancipatio was necessary ; but if the thing was transferred to him by traditio, the Remancipatio was completed by Usucapio, or as it is here called by Usureceptio : for Usureceptio differs in no re­spect from Usucapio, except that the person who acquires the Quiritarian ownership by Usus, in the one case acquires (capit), in the other re-acquires (recipif) the thing. In the Case of a pignorated thing, the debtor's capacity to recover by Usure­ceptio was the same as in the case of Fiducia as soon as he had paid his debt to the creditor : and even if he had not paid the money and had ob­tained possession of the thing neither by hiring it from the creditor, nor precario, he had a lucrativa usucapio, which was a"usureceptio and was pro­bably formed from analogy to the lucrativa usu­capio pro herede.

Servitutes praediorum rusticorum were estab­lished, at least according to the old law, by Man-cipatio : the right to the Servitutes could only be properly extinguished by a' Remancipatio. If the Servitus was extinguished by mere agreement, there must be a Usureceptio on the part of the owner, of the servient tenement in order to com­plete its; legal release from the Servitus. In order that the possession of the libertas of the servient land might ,be enjoyed uninterruptedly for two years, there must be for the same time a total ab­stinence from all exercise of the right on the part of him who had the servitus. Subsequently, it was considered sufficient if the person entitled to the Servitus did not .exercise ihis right for two years.

When usucapio was established as a means of giving the Quiritarian ownership to him who had acquired a thing In bonis, the form of mancipatio must have gradually lost its importance, and Usu­capio came to be viewed as a mode of acquisition. Accordingly, it has been already observed, it be-

USUCAPIO.

came applicable to all cases of bona fide possession, whether the thing was a Res Mancipi or not. Formerly if a will had been made in due form ex­cept as to Mancipation and Nuncupation, the heres acquired the hereditas by Usucapio ; but with the introduction of the Praetorian Testament [testa-mentum] and the Bonorum Possessio, the Bonorum Possessor obtained the right to actiones fictitiae or utiles in all cases where the deceased had a right of action, and he acquired by Usucapio the Quiri­tarian ownership o'f the several things which were included in the hereditas. In course of time it came to be considered by the jurists as a rule of law that there could be no Usucapio of an hereditas. (Gams, ii. 54.) In like manner in the case of Servitutes established by contract, the introduction of the Actio Publiciana rendered the doctrine of Usucapio unnecessary, and a Scribonia Lex is mentioned which repealed all Usucapio of Servitutes. (Dig-41 . tit. 3. s. 4. § 29.) But this Lex only applied to the establishment of Servitutes ; it did not affec that Usucapio by which the freedom of a servient piece of land was effected. It became a maxim o? law : servitutes praediorum rusticorum non utendo amittuntur, which, viewed with respect to the ser­vient land, was a Usureceptio. In this sense " usurpata recipitur " seems to be used in a passage of Paulus (S. R. i. tit. 17. s. 2). " Usurpari " is commonly used in the sense of "uti," and in this passage of Paulus " usurpata recipitur" seems equivalent to " usu recipitur ; " though this is not the meaning that has usually been given to this passage.

In the case of marriage also Usucapio fell into disuse (Gaius, i. 111).

But in other respects usucapio subsisted. He who had acquired a'Res Mancipi by tradition, had now a Praetorian ownership, and he had a right of action in respect of this ownership, which was analogous to the Rei Vindicatio. But Usucapio was still necessary to give him Quiritarian owner­ship and its consequent advantages. The distinc­tion between Res Mancipi and Nee Mancipi ex­isted, and as a consequence the Testamentum per aes et libram subsisted at the same time with the Praetorian Testament.

When finally all distinction was abolished be­tween Res Mancipi and Nee Mancipi, and the ownership of all things could be acquired by Tra­ditio arid Occupatio, thattind of Usucapio ceased by which a thing In bonis 'became a man's Ex Jure Quiritium. All Usucapio was now the same, and its general definition became "adjectio do-minii per continuationem possessions temporis lege definiti." (Dig. 41. tit. 3. s. 2, De Usurpationibus et Usucapionibus.} 'By a constitution of Justinian (Inst. 2. tit. 6, De Usucapionibus et longi temporis possessionibus) it was enacted that there might be usucapion of Res Mobiles in three years, and of Res Immo'biles "per longi temporis possessionem," which is explained to be ten years u inter prae-sentes," and twenty years " inter absentes ;" and this ^applied to the whole Roman Empire, so that ownership of all things could be acquired on these terms within the whole Roman empire ; but the -conditions of " Justus titulus,"" " bona fides," and the capability of the thing to be an object of usu­capion were still required. The absence of a Justus titulus or the fact of the thing being not capable of usucapion, did not deprive the possessor )f the title by usucapion, but a pnpgession of thii3y, or

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