Chapter V — On the dominion of things found, and of those things which accrue by force of alluvion or in another manner; and on prescription

I. Three kinds of goods are to be distinguished. Some are those which no one has ever possessed, such as gems and pearls. Others are treasures, which by the law of nature belong to the finder. Of the third kind are lost goods, which have a lord near at hand; and the finder who retains them commits theft, if he have knowledge of the lord, or could have it. If nevertheless they have long lacked a lord, they are held as derelict, and belong to the first finder.

II. The goods of the shipwrecked are held by no one as derelict; those who usurp them when found sin, and are bound to restitution, and very often incur the excommunication of the Bull In Coena Domini. Vacant goods are those which a man dying without a testament leaves, and who has no necessary heirs. These are wont to be applied to the treasury. The goods of pilgrims dying without a testament the bishop ought to lay out on pious works.

III. Those who find lost goods are bound to restore them to the lord. If they be ignorant of the lord, they are bound to use diligence to discover him. The thing found is to be announced from the public pulpits, and notices are to be posted in public places, in which, with due caution, it may be made known. The finder can by right demand nothing for the finding. If the lord offer a gift, he may accept it. If after diligence used the lord be not found, many teach that the finder can retain those goods for himself; but to me it is more probable that they are to be distributed to the poor, or applied to pious works. They are nevertheless to be kept so long as there is hope of the lord being found. If the thing does not suffer long keeping, it is to be sold, and the price kept for a fitting time for the finding of the lord. If the finders be poor, let them consult prudent men whether they may retain part, or the whole, of the goods found.

IV. A treasure is properly called an ancient deposit of money, of which no memory survives. This treasure belongs to the finder by the law of nature and by the common civil law. For the rest, many peculiar positive laws have decreed to whom treasures found are to be applied. Money, or other precious things, hidden for fear's sake — say of war, plague, or marauders — do not come under the name of treasure. He who finds them and does not restore them is guilty of theft. If by chance a true treasure be found in another's house or land, half the part belongs to the finder, and half to the lord. If it has been sought by industry on another's land, the whole is owed to the lord, as all commonly teach; who nevertheless add that the finder of a treasure is not bound to restitution before the judge's sentence, because the law forbidding to dig on another's land is penal. That laws of this kind oblige in conscience is to me the more probable, and consequently that the finder is bound in conscience to restitution. The lord of the ownership only is likewise lord of the land in which the treasure is found. Wherefore if a treasure be found in a road, in a square, or in any other public place whatsoever … … whether by chance or by industry, the whole belongs to the finder, unless some peculiar law stand in the way. A treasure found in a field bought belongs to the finder.

V. QUESTION I. What is to be said of dominion by force of alluvion, and the like? ANSWER. Rivers induce alluvion when they pluck away a part from one estate and join it to another; which can happen little by little imperceptibly, or in an instantaneous and manifest manner. The lord of an imperceptible alluvion is he whose estate is increased; but on the contrary the lord of a perceptible and manifest one is the possessor of the estate from which the earth was taken, unless he hold the earth torn away as derelict. But concerning this alluvion the laws are to be consulted.

VI. Accession is that which adds something to your thing. It is twofold. The one is natural, such as are the offspring of a handmaid, of flocks, of plants which are born on one's own land. The other is artificial, or industrial, such as is that which is made by painting, by building, by writing, by weaving in, by grafting, and the like. The lord of the handmaid, of the land, and so forth, is the lord of the fruits.

VII. Another mode of acquiring dominion is specification, which occurs when out of the material of another lord a new species of thing coalesces: as wine out of grapes, oil out of olives, a vessel out of silver. Concerning these there is fuller discourse in Book 2, On Justice, title 1, § 25. When out of two a third one thing is made, it is called confusion, and the dominion becomes common; but it is commixture when things are so mingled that, the same parts remaining, they constitute one third thing, as when moneys, grains, and the like are mingled. When mixed bodies can be discerned and separated, then they pertain to their respective lords. When on the contrary the aforesaid bodies are so mingled that they can neither be discerned nor separated, you become their lord; you are nevertheless bound to pay the price of the other's thing mingled with your own.

VIII. QUESTION II. How is dominion acquired by force of prescription, or usucapion? ANSWER. Prescription is twofold. One draws its origin from the natural law itself; the other has been introduced by positive law. Of the first now, of the other afterwards. From the same fount whence the dominions of things flowed forth, thence usucapion, or prescription, also proceeds. By natural and permissive law all things were common, and nature itself inclines to this community, if it be considered apart from its innate appetitions. For the rest, nature being considered as it now is, division was necessary. Prescription therefore takes its origin from the law of nature itself, and its execution was committed to the law of nations. For this prescription is the basis and safeguard of peace and of mutual tranquillity among men. For the division of goods could not serve reciprocal concord, unless long-lasting possession rendered possessors secure and safe. For this security acquired by usucapion being taken away, dominions would always remain uncertain and in suspense.

IX. That this prescription is confirmed by divine law is clearly gathered from divine Scripture itself. For these words are had in Judges, chapter 11: Why in all this time hast thou attempted nothing about this recovery? Jephte therefore alleged against the Ammonites, besides the title of war, a possession of three hundred years; and objected to the Ammonites that in so long an interval they had never attempted anything to recover the land as their own. This prescription introduced by the law of nations has no other conditions save long-lasting possession and good faith.

X. QUESTION III. What is prescription undoubted by the civil law? ANSWER. It is the acquisition of dominion and the extinction of another's right, with the continuation of possession in good faith for the time prescribed by law. This definition all admit. That prescription, or usucapion (for although some say that prescription transfers movable things and usucapion immovable things belonging to another to a second party, yet more commonly this distinction is rejected, and the one is used for the other), may adjudge dominion to you and extinguish another's right, it must bring with it a continued possession begun in good faith, with a title either real or presumed, and for the time predetermined by law.

XI. Hence it is that authors commonly assign four conditions necessary to prescription. First is possession, of which it has been spoken. Second is a title probably presumed. For if a true and certain one be present, there is no need of prescription. A title therefore is necessary, either presumed, which cannot be proved but must be presumed; or coloured, which can be proved. That is called coloured which is reckoned true, although in the thing itself it be false. Within the space of twenty or thirty years a coloured title must be proved, and unless it be proved, prescription is not admitted. After forty, or fifty, or a hundred years a title is not proved, but presumed. Third is the condition of the amount of time, concerning which authors go off into various parts. The more common opinion is this. For the usucapion of movable things three years among those present and four among those absent are required. The Roman Church alone is excepted, against which, whether in movable or in immovable things, no prescription is admitted, except after the very longest time of a hundred years. Against wards, so long as they are wards, no prescription prevails, whether of movable or of immovable things. The time necessary for prescription must be continuous. Here the continuation of time can fail in two ways: first, while it is interrupted by opposed acts; second, while the prescription sleeps. And it is said by the jurisconsults to sleep when on account of impediments it cannot run, as in time of war, of plague, and the like.

XII. The last and chief condition is that which they call good faith, by which a man is persuaded that the thing he possesses belongs to him, or at least is ignorant that the thing is another's. Authors distinguish a twofold ignorance: one of right, the other of fact. If you believed that Sempronius could sell you his own thing, you would labour under an ignorance of right. If you believed the thing to be his, which in truth it is not, there would then be an ignorance of fact. All confess that ignorance of fact does not impede prescription.

XIII. Theologians dispute whether an invincible ignorance of clear right (of vincible ignorance, since it cannot stand with good faith, there is no dispute) is an obstacle to prescription. De Lugo, Castropalao, and others deny it. But the more probable opinion affirms it, and the text proves it which is had in the Digest, title 6, law 4, and is of this kind: ignorance of right is denied to profit in usucapion; but that ignorance of fact profits is established. That law, like also the other which is had in the law Sumatur, Digest, On Usucapions, has place not only in the external forum, but also in the internal. Wherefore altogether vain and inept is the distinction of adversaries, by which they say that the laws cited have place in the external forum but not in the internal. For those laws, which set forth the law of nature and of nations, oblige no less in the one forum than in the other.

XIV. An heir who receives an inheritance from an author of bad faith cannot prescribe, as all teach, because an heir bears the person of the deceased, and constitutes one person with him. But he who in good faith receives a thing from an author of bad faith by another title besides inheritance — say of purchase, of legacy, of donation — is able to prescribe, as the common opinion teaches.

XV. Prescription endowed with all its conditions acquires dominion for the one prescribing, not only in the external forum but also in the internal, as the more common and true opinion teaches: since indeed prescription takes its rise from the law of nature itself, and is confirmed by the law of nations and by divine law, as consonant with the public good, with peace, and with tranquillity. It is coeval with the very division of things, as it were the safeguard and supplement of the same.

XVI. QUESTION IV. What of the dominion of children subject to the paternal power? ANSWER. There are four kinds of goods which can pertain to such sons. Castrensia, quasi-castrensia, adventitia, and profectitia. Castrensian goods take their name from war, or the camp, and are conferred under the title of military service. Quasi-castrensian are those which sons of a family obtain by exercising public offices — say the offices of physician, advocate, procurator. Those which sons of a family obtain by title of inheritance, of a legacy left not out of regard for the father, of trade, or of succession to maternal grandparents, are called adventitious. But those which sons obtain out of regard for their parents are called profectitia.

XVII. Sons constituted under the paternal power possess full dominion, both direct and useful, in goods both castrensian and quasi-castrensian, and are able to alienate, distract, and give them, without consulting their parents, after puberty attained. But before puberty the administration lies with guardians or parents, without whose knowledge they cannot alienate them. In adventitious goods sons of a family possess direct, but not useful, dominion. In profectitia goods parents have dominion both direct and useful. Let it suffice here to have touched briefly upon justice and dominion taken in general.