§ 1. On Acquisitive Prescription

For valid acquisitive prescription it is required that a prescriptible thing be possessed, with some title, and with good faith, for the time defined by law. - Hence those very well-known little verses:

You will not usucapt, unless these five things are yours:
Let there be a suitable thing, faith, title, possession, time.

892. A prescriptible thing is that which by its own nature, or from the disposition of laws, can be acquired and possessed by private persons. The reason is that prescription is a transfer of ownership; but those things that are of public ownership strictly taken cannot be alienated (III, 515). Cf. the things said in n. 852.

Therefore these cannot be prescribed: 1. Those things that are of divine Law, natural or positive. Thus, for example, the right of a father over a son; likewise spiritual rights, the right of perceiving tithes, of conferring benefices, etc., are never prescribed by laymen; but indeed the right of patronage can be. - 2. Sacred things, churches, cemeteries.¹² - 3. Things deputed to public uses, as a public road, a square, bridges, and similar things, unless their use among the people has ceased or unless another community used them. - 4. Things that the law itself, whether canonical or civil, declares imprescriptible. Thus from the holy Canons, not even by immemorial custom can the undoubted boundaries of dioceses be prescribed, or conditions attached to pious foundations¹³ (legacies of Masses, various burdens, alms to be made; but see below n. 1613); and from civil law, prescription does not run against dotal goods, against goods of wards, against the goods of a minor with respect to a tutor or curator, etc.¹⁴

Note. a) Prescription of the goods of the Church is subject to the rules of Canon Law alone (VI, 324). - b) Stolen things can be prescribed by him who in good faith received them under the conditions of law. Cf. n. 936.

893. For prescribing, possession is required (cf. n. 849). This is certain both from the Third Rule of Law in the Sixth: "Without possession prescription does not proceed"; and from the unanimous opinion of jurists, who affirm that possession is the foundation of prescription.

Possession, that it may induce prescription, must be: 1. dominative, i.e. it must be had with the mind of a proprietor, but not of a depositary, tenant, usufructuary, etc.; - 2. certain, i.e. concerning which there is no doubt in any way, otherwise good faith would be lacking; - 3. peaceful, so that there is not litigation concerning it; - 4. public, at least for the external forum, so that he against whom prescription runs can protest. Thus, for example, predial servitudes that are not apparent cannot be prescribed (especially if they are without title: in which case the matter is certain; otherwise, controverted); - 5. continued, i.e. not interrupted through the whole time defined by Law.¹⁵

894. Title generally is the cause on account of which we possess something, for example purchase, donation.

A fivefold title is distinguished: 1. true, which has all the conditions required for transferring ownership, for example purchase of a thing from its owner;¹⁶ - 2. colored, or apparent, which indeed has the appearance of a true title, yet from a hidden defect lacks effect, for example purchase of a thing taken away by theft; - 3. estimated, which from the adjuncts is prudently believed to have been present, although in fact it was not present: as if a son possesses from inheritance a thing that he thinks was bought by his father, although it was not bought; - 4. presumed, which namely cannot be demonstrated, but from peaceful and long-lasting possession is presumed to have intervened; - 5. vicious, which, on account of the defect of some required condition, is not a sufficient cause for transferring ownership, for example a donation extorted through grave fear.

A vicious title differs from a colored, estimated, and presumed title in this: that these, as they appear, are estimated, or are presumed, are a cause that in fact suffices for transferring ownership, while a vicious title, even as it is estimated, does not obtain a force of this kind, although it is falsely believed to obtain it.

I. For prescription a true title is not indeed required, but neither does a vicious title suffice. The reason for the first is that a true title with possession already suffices of itself for acquiring ownership, without prescription. The reason for the second is that a vicious title impedes the possession itself required by law. Hence that saying: "It is better not to have a title than to have a vicious one."

Thus acts of mere tolerance (for example as regards passage through fields), which are conceded to someone for the sake of friendship, neighborhood, or consanguinity, are not apt for this, that usucapion run.

II. For prescribing, a colored title suffices, and sometimes also an estimated or presumed title. Namely: 1. Colored title suffices when the law (as often happens) requires some title. - 2. Estimated or presumed title suffices (namely for founding good faith in the internal forum) when no title is required in the external forum (III, 505).

Moreover, in the external forum, title is not required: a) As regards immovable goods, if there is question of prescription (usucapion) of very long time, i.e. thirty or forty years: from common Law.⁰¹ - b) As regards movable goods, for example from French Law, if there is question of prescription at least three years long; for before the law this holds: "For movables, possession is equivalent to title."⁰² (cf. below n. 897, II).

895. By Good Faith here is understood a firm opinion by which someone prudently judges that the thing which he possesses is his own, although in reality it is not.

For the internal forum, good faith supposes invincible ignorance. Nevertheless it is not vitiated, in the present matter, by negligence in inquiring that is lightly culpable (III, 511, 625).

I. For legitimately prescribing, Good Faith is necessary, not only from the beginning, but within the whole time that is required for prescribing. This is certain from the Second Rule of Law in the Sixth: "A possessor of bad faith never prescribes at any time." And the reason is that it is repugnant to every right that someone vindicate for himself a thing not his own, or retain it for himself.

Hence, when good faith is lacking, prescription does not have force in conscience, even if civil law, in some case, for example in the general prescription of thirty years, did not expressly require good faith (Gousset, I, n. 723).

II. Good faith is required in one way in him who begins possession, and in another way in him who continues it.⁰³ For in the one beginning, positive good faith is required, as is certain from the things said concerning the necessity of title. Hence he who from the beginning doubts whether the thing is his own cannot begin possession. - But in the one continuing possession, only this is required, that bad faith not supervene, namely through consciousness of another's thing, as is certain from that rule of Law (c. fin. de Praescript.): "It is necessary that he who prescribes, in no part of time, have consciousness of another's thing."

Wherefore, if a doubt supervenes upon a possessor of good faith, prescription is not interrupted; and one continuing possession enjoys the benefit of the years of the one beginning, provided that meanwhile (at least for the forum of conscience) he employs diligence for inquiring into the truth (III, 504, 511).

896. QUAER. Whether a successor prescribes who doubts concerning the good faith of predecessors?

Resp. Affirmatively, if he has employed due diligence for solving the doubt. The reason is that in doubt bad faith must not be presumed, at least ordinarily and of itself; for no one is presumed evil unless it is proved.

From the new Laws, a particular successor (not universal) in possession can begin prescription, even if the predecessor was in bad faith.⁰⁴

897. Things to be noted beforehand. 1. The time required for prescription is not to be computed from hour to hour, but from day to day, nor does prescription become valid before the last day has entirely flowed by. - 2. For completing possession, the actual possessor can add to his own possession the possession of his author or predecessor, by whatever title he succeeded to him, as we have said above.

Now the time required from various laws is as follows:

From Roman (and Canon) Law: 1. A movable thing with title (colored or estimated) is prescribed after three years; without such title, only after thirty years. - 2. Immovable goods of private persons are prescribed without title after thirty years; with title after ten years among those present, and twenty among those absent. But if someone is partly present and partly absent, the years of absence are to be doubled. - 3. Goods of minors after thirty years; goods of pious places after forty years; goods of the Order of St. Benedict after sixty years. - 4. Goods of the Roman Church or St. John Lateran, likewise goods of the Cistercians and Mendicants, only after one hundred years. - 5. Stolen things, received in good faith from the hands of a thief with title, are prescribed after thirty years among those present, and after forty among those absent. But the thief never prescribes, even if through forgetfulness he finally comes into good faith (III, 515).

II. From French Law⁰⁵ the following prescriptions are given: 1. Prescription of thirty years, than which a longer one is not admitted. It is most universal: for all actions, whether real or personal, even of moral persons, are extinguished after thirty years, without defect of title or good faith being able to be opposed. Possession, however, must be legitimate, in the sense in which we spoke above (n. 893). - 2. Prescription of ten or twenty years, by which immovable goods are prescribed, yet with title and good faith. Ten years are required and suffice if he against whom prescription is made is present, i.e. if he dwells in the territory of the court of appeal in which the immovable is situated. But twenty years are required if he is absent (or proportionately, if he has been partly present and partly absent). - 3. Prescription of three years, which with good faith suffices in every case for acquiring a movable good (cf. n. 895). - 4. Prescription that some call instantaneous, namely by which movable things, not stolen nor lost, immediately after delivery are legitimately possessed and acquired by a possessor of good faith; because for movables possession is after the manner of title, and because the law concedes the space of three years only for reclaiming a stolen or lost thing (cf. n. 885). Whether these things have force in conscience was formerly sharply disputed; today it is commonly affirmed.⁰⁶ Wherefore in this case, a possessor of good faith cannot be bound to restitution. But one must diligently advert whether the thing is in reality movable in the sense of the law (cf. n. 852).

III. From Italian Law.⁰⁷ Prescription of ten years has force also among the absent. Two years, in place of three, are granted for reclaiming a stolen or lost thing. - The rest agrees with French Law.

IV. From Spanish Law.⁰⁸ Prescription of thirty years is admitted, as in French Law; likewise prescription of ten or twenty years for immovable goods. Those are reputed absent who live outside the kingdom, or in an overseas region. For immovable goods three years are required with good faith, or six without another condition. The rest is as in French Law.

V. From Austrian Law.⁰⁹ 1. The ordinary time: a) as regards movable things to be usucapted, is three years; - b) as regards immovable things and predial servitudes, likewise three years, if they are inscribed in the public tables in the name of the usucapting possessor; otherwise, thirty years. - 2. Extraordinary time: a) against the fisc, churches, and other communities that enjoy the right of corporation, six years are required in place of three years; and in place of thirty years, a space of forty years; - b) against one voluntarily (but without fault) absent from the province where the thing is situated, a year of absence is computed as half a year; - c) for one immediately procuring a movable thing for himself from a vicious or bad-faith possessor, or from one not able to indicate his author, the space of ordinary time is doubled.

VI. From German Law.¹⁰ a) For usucapion of movable things it is required that someone have possessed the thing in good faith as his own for ten years. - b) Where the law concerning the land register has been perfectly introduced, usucapion of immovables is not admitted except in the case in which someone, inscribed in the land register as proprietor of the land, has peacefully possessed this immovable thing as his own for thirty years. - Indeed peaceful possession alone (without inscription) suffices after thirty years, provided that then an invitation be made to those who could have rights. With no one protesting, ownership is acquired through inscription. - c) Instantaneous prescription is also given, as in French Law, but under diverse conditions. See below n. 936.

VII. From English Law, certain prescriptions indeed are admitted with respect to immovable goods (and debts); but "movable possessions cannot be acquired by title of prescription."¹¹

898. It is asked: How is prescription interrupted or suspended?

Resp. 1. It is interrupted, so that it must be begun anew, either naturally, if the one prescribing loses possession (namely natural possession), or if bad faith supervenes upon him; or civilly, if litigation concerning the thing is moved, unless the one moving it does this unjustly for interrupting prescription. - But it is not interrupted if the thing possessed is transferred from one to another, for example by purchase, donation, etc.¹²

2. Prescription is suspended, or sleeps, when an impediment is placed before it so that it does not proceed further, yet in such a way that, when the impediment has been removed, it continues without any other detriment than the time of sleeping.

This happens in a twofold mode: a) when judgments cannot be exercised, for example in time of war or plague in certain kingdoms;¹³ - b) when he against whom prescription is made cannot pursue his right. Thus prescription does not run against interdicted persons, against a church lacking a rector. Thus from Roman Law; otherwise, however, from the new laws¹⁴ (cf. n. 892, 4).

Note. Notwithstanding legitimate prescription, there is sometimes conceded (for example to minors for four years after majority) the benefit of restitution in whole, i.e. rescission of the prescription to be pronounced by a judge.¹⁵