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in some cases, forty years was required. From this time the terms Usucapio and Longi temporis praescriptio, were used indifferently, as some writers suppose, though on this point there is not uniformity of opinion.
(Engelbach, Ueber die Uszscapion zur zeit der Zwolf Tafeln, Marburg 1828 ; Muhlenbrueh, Doctrin. Pandect. § 261, &c. ; Ueber die Usticapio, pro Jierede von Arndts, Rkein. Mus. fur Jurispru-denz, vol. ii. p. 125 ; Puchta, Inst. ii. § 239.) [G. L.]
USURAE, [fenus, p. 526, b.]
USURPATIO. One sense of this word is " Usucapionis intemiptio," (Dig. 41. tit. 3. s. 2.) Appius Claudius, not the Decemvir, but he who made the Appia Via and brought the Aqua Claudia to Rome, wrote a book De Usurpationibus, which was not extant in the time of Pomponius. (Dig. 1. tit. 2. s. 36.) In some cases " usurpatio " means the preservation of a right by the exercise of it, as " jus usurpatum,'' in the case of a Servitus aquae ducendae ; and this nearly agrees with that sense of Usurpare which is equivalent to Uti. [Usu- capio.] As to the passage in Gellius, iii. 2, see Savigny, System, &e. iv. 365. [G. L.]
USUS. [matrimonium, p. 741.]
USUSFRUCTUS and USUS were Personal Servitutes. [servittjtes.] (Dig. 8. tit. 1. s. 1.) Ususfructus is denned to be "jus alienis rebus utendi fruendi salva rerum substantial' (Dig. 7. tit. 1. s. 1.) Accordingly Ususfructus comprehended the "jus utendi" and the "jus fruendi." Usus comprehended only the "jus utendi." The complete distinction between Ususfructus and Usus will only appear from a statement of what each is.
A Ususfructus was the right to the enjoyment of the fruits of a thing by one person, while the o wnership (proprietas) belonged to another. It could be established by Testament, which was the common case, as when the Heres was required to gi vq to another the ususfractus of a thing ; and it could also be established by contract between the owner of a thing and him who contracted for the Ususfructus. He who had the Ususfructus was Ususfructuarius or Fructuarius, and the object of the Ususfructus was Res Fructuaria. The utmost limit of Ususfructus and Usus was the life of the person who had the right. Thus the Ususfructus and Usus were generally life estates ; but not more. (Dig. 45. tit. 1. s. 38. § 12.)
There might be Ususfructus both in Praedia Rustica and Urbana, in slaves, beasts of burden and other things ; and a Ususfructus of a whole property (omnium bonorum) might be given ; or of some aliquot part. (Dig. 32. tit. 2. s. 37, 43.)
If the Ususfructus of a thing was bequeathed to a person, all the " fructus " of the thing belonged to the Fructuarius during the time of his enjoyment. Consequently if the Ususfructus of a piece of land was given to him, he was intitled to collect and have for his own all the fructus that were already on the land, and all that were produced on it during the time of his enjoyment. But as he only acquired the ownership of the fructus by collecting them (perceptio), he was not intitled to fructus, which existed on the land at the time \vhen his right ended, and which he had not collected: quidquid in fimdo nascitur, vel quidquid inde percipitur, ad fructuarium pertinet. (Dig. 7-tit. 1. s. 59. § 3 ; tit. 4. s. 13.)
He was bound not to injure the land, and he
was bound to cultivate it properly. As to quarries and mines, he could work them for his benefit, if he worked them properly (quasi bonus paterfamilias). If after the bequest of the Ususfructus, minerals were found on the land, he could work them. He could be compelled to plant new trees in the place of those which died, and generally to keep the land in good condition. If the Ususfructus was of aedes, the fructuarius was intitled to all the rents and profits which he received during the time of his enjoyment. He could be compelled to keep a house in repair, but it seems to be doubtful how far he was bound to rebuild the house if it fell down from decay: at any rate he was liable for all moderate and reasonable expenses which were necessary for the maintenance of the property.
The Fructuarius could not alienate the right to the Ususfructus, though he might give to another the usus of his right ; and he might surrender the right to the Ususfructus to the owner of the thing. He could not subject the thing to servitutes ; nor could the owner do this even with the consent of tfye fructuarius. The Fructuarius could make such changes or alterations in the thing as would improve it, but not such as would in any way deteriorate the thing, or even render the maintenance of it a greater burden. Consequently he- had greater power over cultivated land than over houses or pleasure-grounds, for a part of the value of houses or pleasure-grounds and things of the like kind consists in opinion, and must be measured by the rank, wealth, and peculiar disposition of the owner.
The fructuarius could maintain or defend his rights by action and by interdicts. On the completion of the time of the Ususfructus, the thing was to be restored to the owner, who could generally require securities from the fructuarius both for the proper use of the thing and for its restoration in due time. This security was in some cases dispensed with by positive enactments, and in other cases by agreement ; but it could not be dispensed with by testament.
Originally there could be no Ususfructus in things unless they were things corporeal and siich as could be restored entire, when the time of Ususfructus had expired. But by a Senatuscon-sultum of uncertain date, there might be quasi Ususfructus of things which were consumed in the use, and in this case the fructuarius in fact became the owner of the things, but was bound to give security that he would either restore as much in quantity and value as he had received, or the value of the things in money. (Dig. 7. tit. 5. s. 7 ; and compare Randall v. Russell, 3 Mer. 190.) It is generally supposed that this Senatusconsultum was passed in the time of Augustus, and a passage of Cicero (Top. 3) is alleged to show that it did not exist in the time of Cicero : " Non debet ea mulier, eui vir bonorum suorum usumfructum legavit, cellis vinariis et oleariis plenis relictis, putare id ad se pertinere. Usus enim non abusus legatur." The only difficulty is in the words " id ad se pertinere," which are usually translated " these things, (the cellae vinariae, &c.) are not objects of Ususfructus," from which it is inferred that there was at that time no Ususfructus in things which were consumed in the Use. But if this is the sense, the words which follow, *6 for the usus, not the abusus (power to consume) is the object of the legacy," have no clear meaning. These words simply sig-
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