§ III. On the acquisition of dominion

The fact by which dominion is justly acquired is called a mode of acquiring, and indeed original if the thing which is acquired by that fact was no one's at the time of acquisition; but derivative if at that time it was in the dominion of another. - Five modes of acquiring dominion can be enumerated: occupation; prescription; accession; contract; succession, whether legal or testamentary. Concerning the two latter we shall treat in the Treatise on Contracts.

638. • Occupation is a voluntary and external fact by which someone apprehends, or reduces into his power, a thing belonging to no one, with the intention of having it as his own. - Hence four things are required for it: two on the part of the object, namely that the thing be: a) capable of dominion (n. 592); b) belonging to no one; two on the part of the subject, namely a) a voluntary and external fact by which the thing is apprehended; b) the intention of having the thing as his own or as the thing of him in whose name it is occupied (Mar. n. 219. 3°). A thing belongs to no one when either up to now it has been in no one's dominion, or has ceased to be in someone's dominion. Its effect is possession and dominion of the thing occupied. Hence the axiom: a thing belonging to no one becomes that of the first occupant; understand: unless, either for one forum or for each forum, there stands in the way a just law (n. 642 sq.) by which the thing is applied to another.

Occupation is either of settlements, or of animals, or of things found.

639. • "Since the whole orb of lands has been divinely given to the human race for habitation, it is licit for a more numerous people to acquire new regions in which it may pass its life. Indeed there is no one who denies that lands empty of inhabitants yield in this way to the first occupant. But also vast regions, which men few in number, and wild or barbarous, inhabit, can" by others "be occupied for their own utility and for the honor of the human race, so that men living almost after the manner of beasts may be brought over to human customs, to say nothing of the knowledge of the Gospel to be communicated, which is to be esteemed especially by worshippers of Christ."¹

640. • This occupation of settlements, by the law of nations then in force, was for Europeans the title of dominion in the territories of our Indians; but the Federated States, by the right either of war or of compacts, succeeded into that title of the Europeans, and by force of it vindicate for themselves direct dominion in those territories, with only the right of use left to the Indians, and this by that law, that the Indians can sell it to no one except the Supreme Government, which reserved to itself the right of pre-emption of it.²

But if the Supreme Government, by an unjust war, or by unjustly compelling the Indians to sale, or by iniquitous violation of compacts entered with them, were to injure their right, there would sin, as is clear of itself: 1) the Supreme Magistrate by his action; 2) deputies to Congress by their vote; 3) officials of the Government by their cooperation; 4) private persons buying from the Government or accepting lands of whose use the Indians had been unjustly deprived. - Moreover officials of the Government and private persons will be able to be excused from sin more easily, since they are not bound to inquire concerning the justice of the action of the Supreme Government.

641. • Animals of four kinds are distinguished.

1° Wild or fierce animals, which by their nature abhor human society and enjoy natural liberty, such as hares moving in fields, fish in the sea, birds in the air.

2° Tame or domestic animals, which by their nature enjoy human society, but do not enjoy natural liberty, such as sheep, horses, etc.

3° Tamed animals, which by their nature indeed are wild, but by the industry of man have been so domesticated that they now have a custom of going away and returning home, such as doves, bees, etc.

4° Animals become wild again, which have resumed their former wild disposition after having been tamed, such as doves leaving the dovecote and living in the fields.

642. Principles of natural and of our law. - I. Wild or fierce animals, and also animals become wild again, become the property of the first occupant. - For things which belong to no one are licitly occupied by natural right, and therefore become the property of the first occupant, at least unless some positive law applies their dominion to someone else (see n. 638). But once reduced into the dominion of someone, they remain under his dominion as long as they are retained in custody and have not recovered or resumed natural liberty. But they are judged to have recovered liberty when they have so escaped custody that pursuit of them has become difficult; and then they so cease to be under dominion that they can become the property of another occupant, just as if they had never had an owner.

643. You will resolve. - A wild animal wounded or caught by a snare:

a) On another's land so enclosed that on the one hand wild animals cannot go out from it, and on the other individual animals can easily be taken, is not the property of the one wounding or snaring; because in this case the wild animals are judged to have lost their liberty and to pertain to the owner of the land,¹ and this by the same right by which wild animals enclosed in a zoological garden pertain to the owner of the garden.

b) On another's land, even enclosed, but so open that wild animals can go out from it, it is the property of the one wounding or snaring, if it has been so injured that the one injuring is morally certain that he will easily apprehend it, or so taken in a snare "that the animal cannot escape" (Kent).¹ The reason is that wild animals in this case belong to no one, since they can go out from the land, and are by no means to be held as fruits of the land; therefore they become the property of the first occupant. But in reality he must be said to have occupied them who has either so injured them that he is morally certain that he will easily apprehend them, for thus he has already morally apprehended them, or has so snared them that they are not going to escape. Therefore the owner of land of this kind cannot take prey killed or snared by another, except in compensation of damage which has been inflicted either on him through this injury of the right of hunting which perhaps he enjoys, or on the land. The rest have no right in the prey; yet often in good faith they think it licit to occupy wild animals which they find entangled, but not yet taken away by the owner. In practice, attention must be paid to this good faith of agents. Mar. p. 119. n. 229. - In doubt whether a wild animal wounded by one and apprehended by another could have escaped the one wounding it, the animal itself or its price is to be divided.

What we have resolved here concerning hunting, resolve the same, with due proportion observed, concerning fishing; for here also there is question of wild things which, unless they are so deprived of natural liberty that none can escape from the fish-pond or pool in which someone has shut them up and all can easily be caught, are things belonging to no one and therefore are the property of the first occupant or taker.

Note. - Oysters which someone has in that part of the water over which he has dominion cannot be taken by others without injustice; for they are held in a bed, from which they cannot go out and from which all are easily taken.

644. • Obligations arising from civil laws pertaining to hunting and fishing are of different kinds. Some only regulate the use of hunting and fishing, and regard, for example, the time at which hunting or fishing is permitted, and these, from the sentence of St. Alphonsus,³ are merely penal. Others urge from natural right with respect to the proprietor of the land; and these obligate from commutative justice if the land or bed is so enclosed that wild animals or fish cannot escape and all can easily be taken by the owner of the land. Others regard obligations which arise from the right of hunting or fishing exclusively conceded to someone; and these bind from commutative justice only insofar as it is not licit for you to bring grave damage upon him who possesses that right, as if from your fishing the hope of catching a greater number of fish, which otherwise he both wished and could have caught, were diminished for him. - You are also bound concerning other damages inflicted, for example to crops.

645. Principle II. - Animals wild by their nature, but tamed, remain the property of the prior owner as long as they have not escaped his custody or lost the custom of returning; for animals of this kind pertain to the possessor both by reason of occupation and also by reason of education and detention. - But if they have escaped the custody of the owner or lost the custom of returning, they become the property of another first occupant, because they have recovered their nature and have become wild again (see n. 642).

646. You will resolve. - 1° "If a swarm of bees had flown from the hive of A, they were" (at common law) "reputed his so long as the swarm remained in sight, and might easily be pursued; otherwise they became the property of the first occupant. Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder. Bees which swarm upon a tree do not become private property until actually hived."¹

2° Doves fleeing by their own motion, without having been attracted by fraud, become the property of him into whose dovecote they come. Otherwise, if they are enticed by fraud, for example by food altogether extraordinary or very choice, unless nevertheless custom permits this.²

But it will be licit, unless you can easily drive them away, to kill doves belonging to another that are gravely harming or about to harm your field, and to take them for the damage after the damage has been inflicted. For it is licit for each one to preserve his own thing, even if from this there follows indirectly to another a damage equal to the damage which the one about to be harmed wishes directly to avert from himself. But doves are not presumed to harm gravely except at the time of harvest or sowing.¹

For Louisiana as to bees and doves, see Civ. Code of Louis.²

647. Principle III. - Tame or domestic animals remain those of the prior owner, however much they wander away; hence they cannot be occupied by another, and natural fruits perhaps perceived from occupied animals, for example eggs, etc., are to be restored. The reason is that domestic animals can never be said to have recovered their liberty, since by their own nature they have no liberty. Therefore as to them there can never be place for occupation, except by finding.

648. • Things which are found are of different kinds: some neither have an owner nor have ever had one, for example little stones and gems which are sometimes found on the shore of the sea; others indeed already have had an owner, but now have ceased to have one, as are treasure, vacant goods, and abandoned goods; others have an owner, but it is not known who he is, as are things recently lost.

649. Principles. - I. Things found which neither have an owner nor have had one pertain to the finder himself. Hence little stones, gems, amber, pearls, corals, etc., which are found on the shore of the sea or in the bed of rivers or adhere to rocks, are the finder's.

But those things are generally judged, according to our laws and customs, neither to have an owner nor to have had one, which are not held as parts of some land. Hence metallic veins, quarries, coal-mines, chalk-pits, sand-pits, and those in which petroleum is contained, belong not to the finder, but to the owner of the land.

650. • II. Goods which indeed have had an owner, but now have ceased to have one, are either treasure, abandoned goods, or vacant goods.

Treasure (treasure-trove) is a movable thing buried or hidden, of whose owner memory does not exist, so that no one can demonstrate (n. 651) that it is his. It is said: 1) Movable thing, understand: one which can be valued by price; therefore money, a coin, a little vessel, a little bell, can be matter of treasure. - It is said: 2) Buried, for example in a field, or hidden, for example in an old chest. If it were not buried or hidden, the thing would not be held as true treasure, but as lost.

Treasure by natural right belongs to the finder, because it is held as a thing belonging to no one, but not as a part of the place; hence it ought to belong to the first occupant. And since our laws decide nothing concerning it, we are governed only by this natural right. Except States where treasure found on the finder's own land, or found fortuitously on land pertaining to no one, becomes wholly the finder's; but treasure likewise fortuitously found on another's land is to be equally divided between the proprietor of the land and the finder,¹ even in conscience. L. IV. 602.

651. • Quaer. Can a workman, laboring in some house, if he finds in some corner of the wall or in an old chest a sum of money, retain it, or, as above, the half part of it?

Resp. Distinguish. In the negative, if signs are present from which it is judged with moral certainty that this money belongs to such a person or family; because then that money is to be reputed as recently lost. Otherwise, in the affirmative.

652. • Abandoned goods are goods which the owner himself rejects with the intention of abdicating from himself dominion over them. Hence they become the property of the first occupant. Of this kind are acorns, nuts, chestnuts, which remain after gathering; ears of grain, which remain after harvest; grapes, which remain after vintage has been made. For the most part also dry and dead wood lying on the ground, but not those things which are like fences, or otherwise destined to some use.

But those who cut wood in another's forests are bound concerning damage, which nevertheless here in places not yet cultivated is usually none; for it is of interest to the owners that trees be taken away for preparing the soil for wheat. But in cultivated places it is greater or less according to the circumstances. Near cities and towns wood is worth very much, as in all places in which trees are rare, for example in the immense prairies of certain western States, especially of Illinois.²

653. • Quaer. What is to be said of goods which are called derelict at sea and wrecks?

Resp. 1° "The right of acquisition, by finding, ... does not extend to goods found derelict at sea, though abandoned without hope of recovery."¹

Resp. 2° "A wreck is understood to be goods cast or left upon land by the sea,"² and these are not to be judged among abandoned things.

The reason of each response is that the owner is judged to have cast away the hope indeed, but not the intention of recovering them, except in the case where expenses for recovering them would at least equal their value. Therefore for the internal forum, and outside the case where expenses for recovering them would at least equal their value, the same is to be held of them as of things recently lost; but in the external forum those who appropriate these things to themselves are sometimes punished with very great penalties.³

654. • Vacant goods are called those which someone who died intestate left, to whom no heir succeeds according to law or ab intestato. These also, by natural right, belong to the first occupant, since they no longer have any owner. But by our law two kinds of vacant goods must be distinguished. For the disposition of our laws is this: "Whenever the owner dies intestate, without leaving any inheritable blood, or if the relations, whom he leaves, are aliens, there is a failure of competent heirs."⁴ In the former case, namely "whenever the owner dies intestate, without leaving any inheritable blood," our laws, at least as to movables, do not seem to obligate in the internal forum before the sentence of a judge, and we think that conscience is governed only by natural right, by which they become the property of the first occupant. In the latter case, namely "if the relations, whom he leaves, are aliens," it must be noted:

1. Goods, even immovables, in certain States, and movables in all, are distributed to heirs.

2. Where this liberality of laws does not flourish, a) a son does not violate justice by usurping the goods of his father for himself, since the right of nature favors him, or at least the custom of all nations very consonant with nature, from which a special law can scarcely derogate except in the external forum. b) Relatives usurping the goods of the deceased, if children are lacking, do not seem guilty of injustice if they distribute them among themselves in that way in which it would be done from the sanction of the law if he had been a citizen; for that the law denies that right to an alien and vindicates the goods for the State is to be referred to external governance rather than to the definition of property, and therefore it does not bind conscience, although c) if it is demanded for execution, it is necessary not to resist. d) Others who have no right, if they do not hand over the goods of a deceased man who has no surviving children to the State, but spend them for pious uses, "are not to be blamed, since they violate no one's" strict "right"; nevertheless they can in no way usurp these things for themselves, "unless it is certain to them concerning the will of the deceased to donate these things to them. e) If children survive, the goods must altogether be handed over to them, unless they are given to the treasury, or unless they are plainly unworthy and prodigal. f) If relatives are pressed by want, they are to be aided before others. g) But we would not dare to condemn him who, with relatives not in need neglected, would give the goods of the deceased to the poor," or would apply them to other pious causes: "for relatives do not have a strict right." So Kenrick.¹

655. III. - Things recently lost must be restored to the owner if he is found, because the fact of losing is not a title for despoiling an owner of his thing; therefore, since things recently lost still have an owner, they must be restored to him if he is discovered.

656. • You will resolve. 1° Therefore concerning a thing lost by someone, whether known or unknown, which perhaps you find, a multiple obligation can be present. For:

a) Charity can obligate you to undertake care of the thing if you foresee that otherwise the thing will in some way perish for the owner.

b) Likewise charity will require that if at some time it is certain to you concerning a thing lost or found by another, you reveal this to others when you prudently judge that this will be profitable so that the thing may return into the hands of the owner.

c) If you yourself take a thing perhaps found, by force of the contract which is called management of affairs (n. 927), or at least from charity, you are especially bound to conduct diligent care of the thing and guard it, unless by doing this you are going to suffer damage; in which case you will be able to put it back in the place where you found it.²

d) Likewise, if the owner of the thing is unknown to you, you are bound from justice not to hide the thing. You will violate this obligation not only if you carefully hide the thing in such a way that the owner cannot find out that the thing lies with you, but also if you do not use means suitable and proportionate to the value of the thing, so that knowledge of the thing existing with you may come to the owner.

2° Once diligence has been used which corresponds to the value of the thing found, either some hope of finding the owner appears, or not. If the former, the thing is to be preserved, or, if it cannot be preserved, its price; but if neither can be preserved, it must be spent on pious causes. For, while such hope lasts, the owner has dominion of the thing; therefore it is to be spent according to his presumed will. But if the owner appears after it has been handed over to pious causes, it is to be restored by the poor person or the one having it, if it exists in an equivalent and has not prescribed; for such a handing over seems to include this condition: unless the owner becomes known. - If the latter, which is to be judged from circumstances of time, distance, place, or impossibility of recognizing the thing, as happens in ordinary coins, the finder can now retain it for himself, since it belongs to no one. But if by chance the owner afterwards appears, nothing is owed to him, since he has lost every right. So St. Alphonsus,¹ others thinking otherwise. Hence a maidservant of an inn, who in sweeping the tavern finds some coins, while there is no hope, namely on account of the great crowd, that the owner will be found, can retain them for herself. Hence also he who retains animals which have wandered away from their owners, with diligence for finding the owners omitted, is guilty of injustice; and afterwards, if the owner cannot be found, or he himself cannot disclose the thing because of omitted diligence, he must spend the price on pious causes.²

3° An owner appearing is bound to reimburse to the finder or holder of the thing the expenses made so that the thing be preserved, or its owner be found.

657. Definition. - Prescription is defined: a means instituted for acquiring some right, or for freeing oneself from some obligation through the lapse of a certain time, with the conditions established by law observed.

Prescription differs from custom; for prescription is something of fact, of itself neither constituting nor changing legal right, but directly changing dominions of things or equivalent rights. But custom is something of right, because, as Suarez¹ notes, it has primarily and of itself the force of law.

658. Prescription is a legitimate mode of acquiring. - For it is not only approved by positive right, both civil and canonical,² and therefore has force in each forum, external and internal; but it is also very conformable to natural right and has foundation in it, since it rests wholly upon the common good, insofar as it was of the greatest interest of the common good: 1) lest dominions of certain things be long, and almost always, uncertain; 2) that there be some end of lawsuits; 3) that possessors be preserved in their possession with tranquil mind, and not themselves be held in nearly immortal fear; 4) for avoiding the sloth of owners, and the error and confusion of a long time.³ Wherefore the Angelic says: "If someone prescribes by possessing in good faith, he is not bound to restitution, even if he knows after prescription that the thing was another's."⁴

659. • It is divided into acquisitive, which is also called usucapion, and by which some right is acquired; and liberative, which is simply called prescription, and by which someone is freed from some obligation. Acquisitive prescription among us is properly called "limitation," and is referred to corporeal goods; but liberative is called "prescription," and pertains only to incorporeal things, such as servitudes. Today, however, those words are used promiscuously; more commonly, nevertheless, "limitation," and indeed for signifying each prescription.⁵

660. • All who are capable of acquiring dominion can prescribe, and the same are subject to prescription, yet as to prescriptible things; therefore not only physical persons, but also moral persons, such as the Church, a community, public institutes. Yet moral persons cannot oppose prescription to others in our civil forums, except insofar as they are civilly capable of dominion.

But no one can prescribe against himself, since justice is toward another; and so, if one beneficed has already for a long time celebrated four Masses from error, although nevertheless by the tenor of the foundation he is not bound except to two, he will not for that reason in the future be bound to four. - The conditions for prescribing legitimately are: a prescriptible thing, possession, title, the required time, good faith.

661. • The following cannot be prescribed:

a) Things which have been placed outside commerce, because they cannot even be possessed by private persons. Of this kind generally are judged those things which serve only public utility, for example streets; sacred things and sacred places, while they are sacred.

b) Things which law, whether ecclesiastical or civil, has declared imprescriptible. Thus from the disposition of ecclesiastical law the limits¹ of Parishes, just as also of dioceses,² and the burdens and conditions of pious foundations, cannot be prescribed.³

c) Things found or stolen, which are never prescribed by at least the finder, or thief, or possessor in bad faith.

d) Certain servitudes (n. 683. 2) and 684. 5°).

662. • Possession is detention of a thing or enjoyment of a right, in one's own name, by oneself, or through another who detains that thing or exercises that right in our name. Enjoyment of right is customarily called improper possession, or quasi-possession; for properly possession is accustomed to be said only of corporeal things, not of incorporeal things, of which kind is, for example, the right of electing. Possession here defined is called civil, and is distinguished from bare detention of a thing or enjoyment, which is done in another's name, as possession of a field through a tenant, and is called natural.

663. • Possession, so that it can induce prescription, must be:

1° Dominative, or the thing must be held, or the right exercised, in one's own name, as is said in the definition, or with the mind of an owner. Hence he who detains a thing or exercises a right in the name of another, for example as tenant, depositary, usufructuary, cannot prescribe. This is also valid concerning their successor by universal title, but not concerning a successor by particular title, as for example concerning one who holds a thing by purchase from a depositary. - Hence also acts of simple tolerance cannot be the foundation of prescription; for acts of this kind are done from the tacit or presumed consent of the owner; therefore in the name of another. Thus by title of friendship or neighborhood many things are tolerated or permitted, without some right being acquired from them. - Nor can acts of mere faculty, or of simple non-use, induce prescription. Thus from the fact that for twenty years I have not built on my land, the neighbor cannot impede me from building today. - Therefore that natural possession which was defined at n. 662 cannot induce prescription.

2° Tranquil or peaceful, i.e. not interrupted, namely by that Interruption concerning which below at n. 667 under 2°.

3° Certain, not equivocal or doubtful, so that he who possesses is morally certain that he has a right of detaining the thing or exercising the right in his own name, lest namely the condition of good faith be lacking, which is required for prescription.

4° Continued or not suspended before the required time (n. 667. 3°). - Yet he who succeeds into a thing, whether by universal title, namely from inheritance, or by particular title, for example because he bought the thing, rightly joins the time during which he himself possessed with the time during which his predecessor possessed: understand according to what is to be said at n. 670.

5° Finally, for the external forum, public, so that he against whom prescription runs can know it and reclaim, if he wishes to attend accurately. For if it were not so public, in the external forum bad faith or an intention of hiding would be presumed.

664. • Title here means a cause sufficient from law for transferring dominion, for example purchase, donation, etc. But title is distinguished fivefold: true, or one which labors under no vice; colorable, or apparent, or one which labors under hidden nullity, such as would be present if, for example, I had bought from Titius a thing which I thought belonged to Titius, although nevertheless it belonged to Sempronius; estimated, which is prudently believed to have been present, although in fact it was not present, as if a son possesses from inheritance a thing which is thought to have been bought by the father, although it was not bought; presumed, when a certain title cannot be alleged, but because of length of time is presumed to have been present; vicious, which lacks some condition established by law.

Now for legitimate prescription a true title cannot be required; for then prescription would not be necessary, since no one can prescribe his own thing. - But a vicious title cannot be alleged, because the dispositions of the law with which it is not consonant are never reputed unknown. Hence the axiom: it is better not to have a title than to have a vicious title. - But a colorable or estimated title is required and suffices, since then good faith is sufficiently preserved. Indeed for the prescription of twenty years, which in most of our States must be called prescription "of the longest time," a presumed title suffices, or no title must be shown, since from the fact itself of tranquil possession through such an interval of time it is supposed to be present. A presumed title will also have force in conscience, if good faith has been present.

Therefore if somewhere a law, as to movables, holds possession in place of title, that will have force only for the external forum; but probably for the internal forum also, if with good faith there is also a title, at least an estimated one.

665. Note. - 1° What we are about to say concerning the time required for prescription in individual States cannot be applied for the internal forum to the goods of churches and pious places. - Besides a colorable title,¹ one hundred years are required for prescribing immovables of the Roman Church or of St. John Lateran; but forty if it is a question of other churches or pious places; but with sufficient probability only three if there is discussion of movables, and thirty without title.² But since the faithful in this matter scarcely distinguish between profane and ecclesiastical goods, you will leave them in good faith, if no hope of fruit is expected from admonition. Moreover, in these matters, the seal being saved, let nothing be done without consulting the Bishop, whose it is to bear judgment in sacred causes.²

2° The dispositions of our laws concerning the time required for prescription do not have force in conscience unless good faith is present in the possessor, and generally are to be held merely as denials of action against the possessor.

666. Questions. - Quaer. 1° What do our laws dispose concerning the time required for prescribing?

Resp. 1° Immovables or real property without title are prescribed by the space of 40 years in Maine, 30 in Alabama and Louisiana, 21 in Kansas, Nebraska, Ohio, Pennsylvania; 15 in Connecticut, Vermont, Virginia; 10 in Indiana, Michigan, Mississippi, Nevada; 7 in Florida, Georgia, North Carolina, South Carolina, Tennessee; 5 in California; 20 in the other States and Territories. So according to Wells.³

Resp. 2° As to movables, interest, debts, etc., we remit the reader to the laws of each State, or to Wells.⁴

667. • Quaer. 2° How is prescription weakened?

Resp. By renunciation, interruption, suspension.

1° By renunciation. For generally each one can renounce his own right. But prescription ceases through renunciation not only express, but also tacit, namely that which is deduced from some fact, as if someone, notwithstanding the prescription which frees him from payment, nevertheless knowingly pays. We have said: generally; for, so that renunciation may have force, it is required: 1) that the one renouncing be capable of alienating, because through renunciation he alienates the right of recurring to prescription. Thus individual religious cannot renounce the privileges of their Order; 2) that alienation not injure the right of creditors and of others having an interest.

2° By interruption, namely when because of an interposed impediment it ceases in such a way that it must be begun again. But this can happen in a double way: 1) naturally, which happens in two ways, namely: a) if someone is cast down from possession and has been deprived of enjoyment of the thing through that time which the laws of the individual State or sometimes the judgment of a judge establish; b) if bad faith supervenes; 2) civilly, if a lawsuit is juridically moved, and the interpellation has not been rejected by the judge. Likewise if the debtor or possessor of the thing recognizes the right of him against whom prescription is made.

3° By suspension, or dormition, when namely an impediment is present which, unless it is removed, prevents prescription from proceeding further. But an impediment can generally be called whatever stands in the way of someone's being able to watch over his own affairs and protect his own rights, according to that: "prescription does not run against one not able to act." Moreover an impediment can exist either on the part of persons, or on the part of some external cause.

On the part of persons. - Thus our laws generally dispose: "Minors, married women, persons out of the United States (and generally out of the State), insane or imprisoned, may bring action within the times of limitations after such disability is removed." In Canon Law, a church is equated with minors when it lacks a rector or superior.

On the part of an external cause. - If the administration of justice, with tribunals closed, is altogether suspended, so that a private person cannot protect his own right, as for example could happen in time of war.

668. • Quaer. 3° Are prescriptions of brief time valid, by which someone is freed from paying a debt?

Resp. 1° In the negative, if it is a question of the first debtor and he, as must be supposed, knows that payment has not been made, since good faith altogether requires ignorance of the debt.

Resp. 2° In the affirmative, as to successors of the first debtor, at least by particular title (see n. 670. q. 2°), if they were ignorant of the debt of the author.

669. • Good faith here is understood as that affection or persuasion of the mind by which someone prudently, or without ignorance gravely culpable theologically (n. 744), judges that the thing which he possesses is his, although in reality it is not.

I. This good faith is altogether necessary for acquiring dominion from prescription. For he who adverts that he possesses another's goods, by that very fact immediately contracts the obligation of restitution; and by natural right, and also positive right whether divine or human, a thing belonging to another cannot knowingly be either stolen or retained. This is also clear from Lateran Council IV,¹ and also from Rule of Law 2 in the Sixth, which reads thus: "A possessor of bad faith will prescribe at no time."

Yet he who thinks the thing is his through ignorance slightly culpable, or a possessor of venially bad faith, can prescribe more probably, since in law² only mortally bad faith is condemned.³

Therefore dispositions of civil laws, insofar as they do not expressly demand good faith, have no force in the internal forum, and are to be held as a mere denial of action or recourse as to the creditor.

II. But good faith is required not only for acquisitive prescription, but also for liberative, because for each the same authorities and reasons urge equally. - Nevertheless according to many theologians and jurists good faith is not required so that you may be freed from some rustic passive servitude, for example of way; or rather one must say that then good faith consists in this, that you place no obstacle by which another is impeded from the use of his right. The reason is that for prescription of this kind no act of the one prescribing is required, but only non-use on the part of him to whom the right of servitude belongs, whom the one prescribing is not bound to admonish, during the running time of prescription, that he use against him the right of servitude, for example a way. Yet others deny; and certainly it must be denied concerning urban servitudes, for example concerning the passive servitude of dripping. For against these servitudes prescription is not made without some positive act of the one prescribing, which without good faith would be unjust.

670. Questions. - Quaer. 1° Does an heir prescribe who doubts concerning the good faith of his predecessors?

Resp. In the affirmative, supposing that he has used due diligence for resolving the doubt. The reason is that bad faith must not be presumed, at least ordinarily and of itself; for no one is presumed evil unless he is proved. - Hold the same in general concerning one who legitimately succeeds into some possession. - But he who is certain of the bad faith of his predecessor does not prescribe.

Quaer. 2° Does the bad faith of a predecessor, unknown, always impede a successor from prescription?

Resp. 1° In the affirmative, if the heir succeeds by universal title, i.e. such that comprehends the universality or an aliquot part of the goods, for example half of the whole, as has place in the institution of an heir properly so called. The reason is that by a fiction of law an heir by universal title is judged to be one moral person with the author, succeeding into all his obligations and burdens.

Resp. 2° In the negative, but only from the time at which he succeeded, if he succeeds by another title than the aforesaid, as obtains in legacies, in sale, and in other contracts. The reason is that then he is not judged to constitute one person with the predecessor.

Quaer. 3° Does the bad faith of a predecessor harm a mediate heir?

Resp. In the affirmative, more probably. The reason is that he is judged to make one person with the predecessor.¹

671. Definition. - Accession ("the right of accession") is that mode of acquiring dominion by which that becomes ours which either is joined to things already ours, movable or immovable, or is produced from our things themselves, movable or immovable, whether by industry or by nature itself.

Division. - Accession is divided in three parts, namely into natural, artificial, and mixed.

1° Accession is natural when one thing is born from another by nature alone, as a lamb from a sheep, or is produced, as milk and wool; or when one thing is joined naturally to another, as land which gradually, not suddenly, accedes to another's bank by water.

2° Artificial, when from the matter of another a new thing is made, as if from another's wool you make a garment, from another's wheat bread, or a chalice from another's silver; or when another's things are joined to one's own, as if you paint another's house; or are confused together, as if you mix your wine with another's wine; or are commingled, as if you commingle your grain with another's grain.

3° Finally accession is mixed when at the same time both by nature and by industry one thing is joined to another, as plants placed in another's land, seeds scattered in another's field, or conversely.

672. Principles. - I. Natural accession happens either by birth or by alluvion.

By birth, or when an animal conceived from a male belonging to another is born to you. He who has the mother has right to all animals born from it. Hence the axiom: "The offspring follows the womb."

Concerning alluvion note these things from Kent.¹ a) "If a fresh water river, running between the lands of separate owners, insensibly gains on one side or the other, the title of each continues to go ad filum medium aquae; but b) if the alteration be sensibly and suddenly made, the ownership remains according to the former bounds, and if the river should then forsake its channel and make an entire new one in the lands of the owner on one side, he will become owner of the whole river, so far as it is enclosed by his land. ... c) If soil be formed out of the sea or a river by slow and imperceptible alluvion and accretion, it belongs to the owner of the adjoining land. d) Islands situated in a river ... belong to the person who owns the land on that side of the river to which they are nearest, though, if they be situated in the middle of the river, they would belong in severalty to the owners on each side, according to the original dividing line or filum aquae, continued on from the place where the waters begin to divide."

673. • II. As to artificial accession, "the English" (as also the American) "law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser."² But if accession happens in good faith, then:

a) If from the matter of another a new thing is made, which is called specification, the following rule is valid: "If A should make wine out of the grapes, or meal out of the corn of B, or make cloth out of the wool of B, or a bench, or a chest, or a ship out of the timber of B, the most satisfactory decision, according to the Institutes of Justinian, is, that if the species can be reduced to its former rude materials, the owner of the materials is to be deemed the owner of the new species"; yet the price of his labor must be paid to the craftsman, if, as is supposed, he acted in good faith and the work is useful to the owner. "But if the species cannot be so reduced, as neither wine nor flour can be reduced back to grapes or corn, then the manufacturer is deemed to be the owner, and he is only to make satisfaction to the former proprietor for the materials which he had so converted."¹ Thus indeed by English law, and generally also by American law.

Louisiana uses French law, from which the owner of the matter can reclaim the new species by paying the price of the labor. Yet if the price of the industry far exceeds the price of the matter, the craftsman can retain the species made by himself, with the price of the matter paid. If the craftsman acted in bad faith, he will be bound to repair the damages inflicted on the owner of the thing.²

b) If another's things are joined to one's own:

1. If they are joined, and so coalesce that they cannot be separated, which is called adjunction, then the whole composite belongs to him whose thing has the character of principal, while the other thing added has the character of accessory, according namely to the saying: "The accessory follows the principal."³ Yet the owner of the thing which is judged principal must compensate the other for the accessory useful to himself. - Thus a usufructuary who has painted the walls of a house cannot destroy the painting with detriment to the walls. On the other hand, if on another's canvas a painter displays a beautiful image, the canvas becomes his, provided he pays its price: "For it is ridiculous that a painting of Apelles ... should yield in accession to a very cheap tablet."³ Nevertheless it is not easy sometimes to define what ought to be judged principal and what accessory, and some of those things which formerly were held as principal must now be called accessory. Thus, if someone wrote on another's paper or parchment either a poem or any work whatever, by Roman law it yielded to the owner of the thing; yet this would be absurd today, since paper is of cheap price and the work is now esteemed the principal.

2. If another's things are confused with one's own, which is called confusion and has place when liquids or liquefied things of the same or another species so come together that no part can be assigned which does not participate in each, or are commingled, commixture is spoken of and is referred to solids, then by English common law, which is also American, the whole confused or commingled thing yields to him to whom the one confusing or commingling voluntarily inflicted injury, according to the general principle reported above concerning artificial accession from bad faith. Yet the one confusing or commingling probably is not bound to yield the whole before sentence.¹ "But this rule is carried no further than necessity requires; and if the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. So, if the corn or flour mixed together were of equal value, then the injured party takes his given quantity and not the whole. ... But if the articles were of different value or quality, and the original value not to be distinguished, the party injured takes the whole. It is for the party guilty of the fraud to distinguish his own property satisfactorily, or lose it. No court of justice is bound to make the discrimination for him."²

"Where" the goods "of two persons are so intermixed that they can no longer be distinguished, each of them has an equal interest in the subject as tenants in common, if the intermixture was by consent,"³ or happened by chance.⁴ Therefore then it will have to be divided pro rata of the quantity proper to each, and this by the judgment of a judge, unless the parties agree among themselves. - In the other cases, and even in those in which confusion or commixture has been made in bad faith, before sentence the owner of the more excellent matter can preserve the whole heap, with due compensation made. For then the other's part is held as accessory to your thing.⁵ But if the things mixed or confused are inseparable and about equal, the composite belongs to each owner, and, as above, either it or its price after sale is to be divided.

674. • III. The species of mixed accession are building, planting, and sowing. Concerning this, outside the case of bad faith, in which case by English and our law the same is to be resolved as concerning bad faith in artificial accession, the common verses have force:

Whatever is planted, sown, or built upon,
All yields to the soil, if nevertheless it has taken root.

Kent clearly explains these things thus.² "If A builds a house with his own materials upon the land of B, the land, said Pothier, is the principal subject, and the other is but accessory; for the land can subsist without the building, but the building cannot subsist without the land, on which it stands; and, therefore, the owner of the land acquired" (according to Roman law), "by right of accession, the property in the building. It is the same thing if A builds a house on his own land with the materials of another; for the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged ... to answer to the owner of the materials for the value of them."

"The same distinctions apply to trees or vines planted or seed sowed by A in the land of B. When they take root and grow, they belong to the owner of the soil, and the other can only claim, upon equitable principles, a recompense in damages for the loss of his materials."

Note. - "In most new States very many are found who, occupying lands without title, have cultivated them and erected buildings on them. Concerning men of this kind, who are called squatters, the laws are to be consulted; for the principles just alleged do not have force concerning them. For the most part the laws favor them, lest lands lie uncultivated; wherefore the owner gives a title to them, with a moderate price accepted, or satisfies them for labor and expenses."³