Roman Law

(c) Usucapio.—According to the XII. Tables, two years' con tinuous possession gave title in the case of land, one year in the case of movables. In the developed law, possession must have begun in good faith, the thing must not be one which has been stolen (even though the possessor himself is quite innocent of the theft) or occupied by violence (this applies especially to land, which could not be stolen) and the possession must have had a justifiable beginning (iustus titulus). Usucapio, being an institu tion of the ius civile was possible only to citizens, but Justinian fused it with a similar institution (praescriptio longi temporis) which had grown up in the provinces. Under his system, three years were required for movables, r o or 20 for land.

II. Methods of the Ius Gentium

(a) Occupatio.—Owner less things, provided they are capable of private ownership (not, e.g., res sacrae, such as temples) became the property of the first person to take possession of them. This applies e.g., to game, and to articles which have been abandoned or left unattended by their owners.

(b) Accessio.—If an accessory thing belonging to A was joined to a principal one beionging to B, the ownership in the whole went to B, e.g., if A's purple be used to dye B's cloth, the dyed cloth belongs wholly to B. By far the most important application of this rule is expressed by the maxim superficies solo cedit, i.e., whatever is built on land becomes part of the land and cannot be separately owned.

(c) Specificatio.—If A made a thing out of material belong ing to B the Proculians held that ownership went to A, the Sa binians, that it remained in B. Justinian adopted a famous "mid dle opinion," according to which B retained ownership if recon version to the original condition was possible (a bronze vase can be melted down), A obtained ownership if it was not (wine can not be reconverted into grapes).

(d) Thesauri Inventio.—The final rule as regards treasure trove was that if it were found by a man on his own land, it went to him; if on that of another, half went to the finder, half to the landowner.

(e) Traditio, i.e., simple delivery of possession with the inten tion of passing ownership. This was the method of conveyance of the ius gentium. It sufficed to pass full Quiritarian ownership of res nec mancipi, but not of res mancipi (land in Italy, slaves, beasts of draft and burden, and certain rustic servitudes) for which either mancipatio or in iure cessio was necessary. If there

fore A sold and merely delivered a slave to B, A remained at civil law owner of the slave until usucapion had taken place. The praetor however devised methods of protecting B's possession in such a way that A's title became valueless, and B was said to have the thing in bonis. From this phrase later writers coined the expression "bonitarian" ownership. Already before Justinian's day mancipatio and in iure cessio had become obsolete and Justinian took the final step of abolishing the theoretical distinction between Quiritarian and "bonitarian" ownership.

Forms of Property in Land Other Than Ownership.— The ordinary leaseholder according to Roman law had no pro tection beyond a contractual right against his landlord, and he could not assign his tenancy, but there were two kinds of tenure which, under the praetorian system, obtained protection against third parties as well, and became assignable. These were super ficies and emphyteusis; the former resulting from building leases granted for a long term or in perpetuity, the latter from similar agricultural leases. Both appear to have first originated in grants by the State, or municipalities. Under emphyteusis the grantee did not become owner, though he enjoyed a jus in re alien hardly distinguishable from ownership.

Servitudes.

(a) Praedial servitudes (i.e., easements or profits a prendre) were divided into two categories, rustic and urban, according as they served the need of agricultural land or of buildings. Thus rights of way and of water are usually classed as rustic, while rights to light, to view or to support were urban.

Praedial servitudes could only be appurtenant, i.e., they could not exist except as additional advantages attached to the ownership of a piece of land (the "dominant tenement").

(b) Personal Servitudes.—The law of Justinian's day brought under the heading of servitudes also the rights of usufructus and usus. Usufruct was the right to use and take the fruits (e.g., crops) of a thing and corresponded to our life-interest. Usus was a more restricted right, also not extending beyond the life of the holder, merely to the use of a thing; thus the usuary of a house could live in it himself but could not let it, as that would be equivalent to taking the fruits.