CHAPTER I: On the Nature and Species of Ownership

841. Definition. Ownership, taken in the broad sense, is the faculty of disposing of some thing or action as one's own. - Defined thus, it comprehends both ownership of property, concerning which we must treat here, and ownership of jurisdiction, concerning which we treated in n. 138.

Ownership of Property is the faculty of disposing of a thing as one's own, insofar as the reason of law permits.

It is said: 1. of a thing, i.e. of the substance of the thing, or of some emolument of the same, or even of both; - 2. as one's own, i.e. for one's own advantage, others being excluded; - 3. insofar as the reason of law permits; for this faculty of disposing can be restricted, either by law: thus, for example, a minor, although he is owner of his goods, nevertheless cannot alienate them; - or by the will of a private person, the law not resisting: for example if someone bequeaths land to another, under the condition that the legatee not enjoy it except after a year (Lessius, l.c., c. 3, n. 1-9).

Division. Ownership is commonly distinguished into high and low. High Ownership, or public ownership, can be defined: the faculty that belongs to the supreme authority of disposing of the goods of private persons, for example of your field for constructing a road, the public good so requiring.

It is ownership improperly so called; because the state does not dispose of the goods of a subject as its own, but only by reason of public necessity or very grave utility: and that without acceptance of persons, and ordinarily with the citizen made unharmed (cf. n. 891). See Carriere, n. 19.

Low Ownership, or common ownership, is the ownership of private persons, to which the definition properly agrees. It is divided into full and half-full: 1. Full Ownership, or perfect ownership, is that which embraces all the parts of ownership, or the special rights contained in it: namely, property of the thing, advantage from use, and the right of perceiving the fruits. - 2. Half-full Ownership, or imperfect ownership, is that which lacks one of the aforesaid rights.

One is direct, or of naked property, which regards only the substance of the thing. Another is useful, which, without property of the thing, has either use or fruit, or conjointly usufruct. - To this belong the right of servitude, by which another's thing serves our thing, the right of pledge, for the security of a thing obligated to us, and similar accessory rights. - Possession is added, which is, as it were, the garment and sign of ownership.⁰²

Note. In some regions imperfect right is divided into direct right, which regards only the substance of the thing, and indirect right, which extends itself to the substance and to the usufruct, concerning which it can dispose exclusively. Cf. Austrian Code, 360; Delama, n. 18. - This right is limited either by law, or by the will of the owner.

Therefore these things come to be explained: 1. full ownership; - 2. ownership of naked property; - 3. usufruct; - 4. use; - 5. real or predial servitude; - 6. possession.

842. Full Ownership is the legitimate power of disposing of a thing as one's own, for every use not impeded by law or pact. - For every use, not only for a determined use; not impeded by law, but permitted as valid, although perhaps prohibited as illicit.⁰¹

Therefore the owner can: 1. According to his own judgment, without injustice, enjoy, use, and abuse his own thing. He indeed sins by abusing it, for example by wasting the thing or destroying it without cause; but he violates only liberality. - 2. Alienate his own thing, either in whole (by giving, selling, exchanging it, etc.), or in part, for example by leasing it, pledging it, burdening it with a servitude, and generally by ceding any real right whatever in it. - 3. Repel immediately and at once by external force an unjust invader of the thing, according to the things said in n. 735. - 4. Reclaim his own thing from any possessor whatever, even one of good faith, through a judge, by promoting in court the action that they call petitory. The law, however, on account of the common good, excepts certain cases (cf. n. 1027 seqq.).⁰²

Note. Ownership can be common to several owners, for example in an undivided inheritance, in a common wall, etc. That condominium or co-property is subject, in various States, to various dispositions of laws.⁰³

843. Direct Ownership, or ownership of naked property, is that by which the property of a thing is had, without its usufruct.

The direct owner can do those things which the perfect owner can; but with the right of the usufructuary or user preserved. - He is not ordinarily deprived of every utility of the thing. Thus the law attributes to him part of a treasure found on his land by another; certain proceeds that are not counted among fruits, such as veins of metals, etc.⁰⁴

844. Definition. Usufruct is the right of using and enjoying another's thing, as the proprietor himself, while the substance of the thing is nevertheless preserved. He to whom this right belongs is called the usufructuary or fructuary.

It has been said: 1. the right of using and enjoying, i.e. of taking from the thing every utility that can be renewed; - 2. another's thing, whether movable or immovable; - 3. as the proprietor himself, namely in the sense explained in n. 842; - 4. while the substance of the thing is nevertheless preserved, both as regards matter and as regards form. For the fructuary does not abuse, nor can he change the thing, even for the better.⁰⁵

Fruit is whatever can be born and reborn from a thing. Law distinguishes fruits: 1. natural, which are born from a fruitful thing, either spontaneously or with slight work of man, as grass of meadows, offspring of animals, etc.; - 2. civil, which are acquired on account of a contract entered or by means of a civil obligation: for example annual revenues, the price of a rented house, etc.; - 3. industrial, which nature brings forth with the industry of man added, as crops, wine, oil, etc. Theologians call these mixed; but they call merely industrial those that are acquired by the industry of man alone, for example profit from money handed over for business (III, n. 610).

Natural and Industrial Fruits are divided again into those to be born and those born; - and these into pending, or perceived or gathered; - and these finally into existing or consumed.

Division. Usufruct is: 1. legal or conventional, according as it is constituted by law (for example the usufruct of parents in the goods of minor children), or by contract, for example donation, testament; - 2. proper or improper, according as there is discussion of things that are not consumed by use, as a house and garden, or of things that are consumed by use, as money, fruits already gathered.

The latter is called improper, or quasi-usufruct, because things consumable by use cannot be preserved, and therefore their substance is not preserved (as the definition requires), but only their value, which, when the usufruct is finished, must be returned to the owner.⁰⁶

845. Effects. The rights and burdens of the usufructuary are, generally, the following:

I. Rights. 1. That from the beginning he make his own all natural and industrial fruits still pending, without the burden of paying for cultivation, seed, etc.; likewise civil fruits that then begin to be owed. But he has no right to other fruits. - 2. That he can give, lease, sell, or put under mortgage his right to another, provided the condition of the owner is not changed. - 3. That, when the time of usufruct has been completed, he himself, or his heir, alone take for himself the fruits already mature and separated; likewise civil fruits, acquired day by day according to the proportion of time, even if their payment had been delayed justly or unjustly.⁰⁷

II. Burdens. The usufructuary must use the thing as a good father of a family, and return it to the owner in a state presupposing and following good administration.

Therefore: 1. At the beginning of the usufruct, he is held to make an inventory (indeed to give security in France), unless he is exempted by law (as, for example, parents with respect to minor children). - 2. During the usufruct, he is held to minor or conservatory repairs, to annual burdens (taxes), to cultivation, to expenses for lawsuits moved concerning the enjoyment, etc. - 3. When the usufruct is finished, he indeed cannot demand compensation for himself for cultivation or a building made; but he can remove all ornaments added at his own expense, yet on this condition, that the things be restored to their former state.

Note. Usufruct ceases: 1. By natural (or civil) death; because the right of the usufructuary is personal. - 2. By the destruction of the usufructuary thing, likewise by total change, for example if a meadow becomes a pond; because from this part the right is real. - 3. It ceases when the time set by law or pact has elapsed; - by non-use, prescription acceding; by renunciation of the fructuary, provided it does not happen in fraud of creditors; - by consolidation, i.e. if the fructuary becomes owner of the thing; - by abuse, with the sentence of a judge intervening.⁰⁸

846. Use, as it is taken here, is the real right of using another's thing, while its substance is preserved.

It is said: 1. Right; and thus it differs from use of fact, which is the actual use of another's thing, revocable at the nod of the one granting, such as, for example, is granted to religious. - 2. Real, i.e. affecting the thing itself, which is subject to use. - 3. Of using, which word does not sound the same as that other word, to enjoy. For to use signifies to perceive from the thing only that which necessity requires; but to enjoy means to perceive all things that proceed from the thing.

I. The rights of the user are determined by convention or law, but are restricted to personal necessity.

Wherefore: 1. The right of using extends only to those things that are necessary for the user and his family (even children to be born and guests), according to their condition, for daily use. - 2. If the user has received, at the beginning of the year, those things that were necessary to him for the whole year, and dies before the end of the year, the heirs must restore what remains to the proprietor. - 3. The user cannot transfer his right to another, unless it is clearly evident that such a faculty was granted.

II. The burdens are the same as those of the fructuary, but only according to the proportion of fruits which the user perceives. - Use can cease in the same manner as usufruct.⁰⁹

Note. To use are referred: 1. Habitation, i.e. the real right of using for one's own need some habitable part of another's house. - 2. Taking Wood (lignatio), i.e. the right of gathering dry wood (or even green wood according to the custom of places) in another's forest, for example of the nation or municipality.¹⁰ - 3. Pasturing (pastio), i.e. the right of leading cattle into another's pastures, for example after haymaking (cf. n. 910, 5).

847. Definition. Servitude, accepted generically, is a certain subjection, by which some thing or person must suffer something from another thing or person.

If a person lies subject and serves another person as a thing, there is had, in the strict sense, personal servitude, in which slaves, or bondmen, were among the Romans. - If a thing serves another person besides its proper owner, there is had mixed servitude or personal predial servitude (among moderns, simply personal), such as use and usufruct. - If finally a thing serves a thing, there is had predial or real servitude, concerning which there is discussion here.

Predial Servitude is defined: a real right constituted in another's thing, by which the owner is bound in his own thing to suffer something, or not to do something, for the utility of a third party.

Division. 1. By reason of origin, servitude is either natural, or legal, or conventional; according as it arises either from the disposition of places, as the course of water; or from law, as the right of view, of drip; or from contract, for example of donation or conditional sale, etc.¹¹

In some places, however, servitudes arising from nature are rather recalled to limitations of property.¹²

2. By reason of mode, it is continuous or non-continuous; according as it can endure without an act of man, as the right of view, aqueduct, etc., or cannot be exercised without it, as the right of drawing water, of passing through a field, etc.

It is called apparent if it is openly declared by some external sign, for example the servitude of a door, of a window; non-apparent, if it lacks such a sign, for example the prohibition of building the neighboring house higher.

3. By reason of object, it is urban or rustic; according as it tends to the utility of an urban estate, i.e. a building erected for the sake of habitation, whether in a city or in a villa, and the garden annexed to the same; or of a rustic estate, i.e. a field, vineyard, meadow, stable of cattle separated from the house.

848. The rights and obligations of servitudes depend on the nature of the thing, on law, on convention.

1. He who actively has a right to a servitude can accomplish all works that are necessary for using and conserving it. - 2. If the fund for whose utility the servitude was constituted is divided, this servitude is owed to each part of that fund. - 3. The owner of the serving estate can do nothing by which the use of the servitude is diminished; and conversely, he to whom the servitude is owed can do nothing from which the condition of the serving estate becomes more burdensome.

Note. Predial servitudes are extinguished: 1. When the appointed time has elapsed, or the condition has been fulfilled. - 2. By express or tacit renunciation of the proprietor. - 3. By consolidation, by which the owner of the dominant estate at the same time becomes owner of the serving estate, or vice versa. - 4. If the thing can no longer serve, for example if the spring from which you could draw water is dried up. If, however, the thing returns to its former state, the servitude revives, unless prescription opposes. - 5. By prescription, or non-use, through the time required by positive law (cf. n. 899).¹³

849. Definition. In the broader sense, possession is called every detention of a thing. - But in the proper sense: possession is detention or insistence upon a thing as one's own, namely by the assistance of body and law.

It is said: 1. detention, i.e. the fact of apprehension,¹⁴ first or continued apprehension, by which the thing is constituted in the power of the possessor; - 2. of a thing, even incorporeal, as of a census, benefice, servitude, and similar rights, which are said to be quasi-possessed; - 3. as one's own, i.e. apprehension must happen with the mind of having the thing as one's own, even if perhaps it is known that the thing belongs to another. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a ward; - 4. by the assistance of the body; because possession does not begin, nor is it possession, unless a corporeal act intervenes, by which, either by foot, or by hand, or by eyes, or in another similar manner, the thing is apprehended in itself or in another thing in which it is judged to be contained; - 5. by the assistance of law, not because it is necessary that the law positively approve, but at least that it not resist: i.e. that it not declare the object to be removed from human commerce, or the subject to be incapable of possessing it. Hence detention of a thing placed outside commerce, i.e. of a public thing by a private person (or of a sacred thing by a layman), is not possession, not even of fact, the law prohibiting and invalidating it; but detention of a stolen thing (profane), although unjust, is nevertheless true possession of fact, because law does not impede that the detention of such a thing suffice for possession (Polman, 2. 2, n. 356 seqq.).

Division. 1. Possession, by reason of title, is just or unjust: just, if it rests upon legitimate title; unjust, if it is destitute of such title. - 2. By reason of the conscience of the possessor, one kind is of good faith, when the possession is reputed just by the possessor, even if perhaps it is not; another is of bad faith, when the holder of the thing knows the possession to be unjust. - 3. By reason of the mode of possessing, it is natural or civil or mixed. Natural is that by which someone occupies a thing by body and soul together, knowing or doubting that he is not the owner. Civil is that which, begun by the assistance of the body, is retained by the assistance of soul alone. Thus he possesses his own things who is absent from them, and is not cast down from the right of possession by another. Mixed is when someone by the assistance of body and soul actually possesses the thing in such a way that no one else retains civil possession of the same thing: this is the most perfect possession (Schmalzgrueber, in Decr., l. II, tit. XII).

Possession is acquired by true apprehension, fictive apprehension, and disposition of law. True apprehension happens either by hands, for example, the hand

being placed upon a movable thing; or by feet, namely by standing upon land which we contend to have as our own. Fictive apprehension is completed by an act which, from a fiction of law, is equivalent to true apprehension, for example by delivery of keys or of a document. Disposition of law sometimes attributes the advantages of possession without any apprehension of the thing.

850. Effects of Possession. Possession attributes certain advantages from natural law, and still greater ones from civil law. Cf. Vermeersch, Quaest. de Just., n. 255; Delama, n. 15.

I. From natural law, in doubt the condition of the possessor is better. To this pertains that rule of law (l. II, ff. Uti poss.): "Any possessor whatever, by the very fact that he possesses, has more right than he who does not possess." - And the reason is that, as was said at length above (n. 44), no one is presumed evil, and therefore no possessor unjust, unless it is proved. - Besides, this privilege of the possessor conduces to public peace and stirs the diligence of citizens in guarding their own things.

Hence: 1. In a petitory judgment (i.e. concerning the property of a thing) the possessor is presumed to be owner; and therefore the burden of proving is transferred to the petitioner. - 2. During litigation, the possessor must be retained in his possession until the right of the petitioner is proved. - 3. A legitimate possessor cannot be displaced except by another certain right. - 4. A possessor is disturbed illegitimately in his possession by private authority. Wherefore he can protect possession by himself and repel force by force. - Otherwise, he has in court an action that they call possessory, i.e. he can ask from the judge either that every molestation cease, or that possession already taken away from him in fact be restored to him.

II. From civil law, the possessor has the benefit of prescription, the right sometimes of acquiring fruits, etc., as will be explained in n. 890. - If possession itself is doubtful, in a possessory judgment he will prevail who, through the whole preceding year, possessed not by force, not secretly, not precariously. But if neither possessed in such a way, possession is to be adjudicated to him who at present detains the thing, or the thing is to be divided between both (cf. n. 945, 3).

Note. Possession is lost: 1. naturally, when someone is deprived of the thing possessed in such a way that it is placed outside his custody; - 2. civilly, when the possessor, even if he retains the thing with himself, has nevertheless cast away the mind of possessing it, or when law ceases to defend him in such possession; - 3. naturally and civilly at the same time, when he renounces or abandons the thing, with efficacious intention of no longer having it as his own, whether he does this freely or under compulsion.⁰¹