LECTURE LIV.
ON TITLES, MODES OF ACQUISITION, OR INVESTITIVE AND DIVESTITIVE PACTS.
Recapitulation. Primary Rights, etc. Rights in rem, per se.
I have considered primary rights in rem, as existing per se, or as not combined with rights in personam, from various aspects.
I first considered the rights in question as distinguished by differences between their respective subjects, or between the aspects of the forbearances which are respectively their objects. Addressing myself particularly to such of the rights in question as are rights in or over specifically determined things, I then considered the rights in question as distinguished by differences between the degrees wherein the entitled persons may use or deal with the subjects. In other words, I considered the distinction between property or dominion (meaning by property or dominion, any right of the class in question which gives to the party entitled an indefinite power of using or dealing with the subject), and servitus or easement.
I next considered the rights in question as distinguished by differences between their durations or between the quantities of time during which they are calculated to last.
Having considered the rights in question as distinguished by differences between the degrees wherein the entitled persons may use or deal with the subjects, and having considered the rights in question as distinguished by differences between their durations, I next adverted to a distinction which I found it impossible to explain, until I had treated of the two distinctions to which I have now adverted: namely, the distinction between jus in re propriâ, absolute property, property pre-eminently so called, or dominion sensu stricto, and those various fractions of absolute property which are comprised by the generic expression jus in re alienâ.—As I endeavoured to shew, the distinction between jus in re propriâ, or absolute property, and jus in re alienâ, does not quadrate with the two distinctions to which I have now adverted: namely, the distinction between rights in rem in respect of differences between the powers of user severally annexed to them, and the distinction between rights in rem in respect of differences between their several durations: for though absolute property is a right of unlimited duration and a right accompanied by a power of indefinite user, certain rights in re alienâ (as that, for example, of the emphyteuta, or 871that of the tenant in fee simple), are also rights of unlimited duration, and are accompanied with a power of user which is not susceptible of exact circumscription.
I lastly considered the rights in question in so far as they are distinguishable into vested and contingent: that is to say, into rights and chances or possibilities of rights.
And considering the rights in question as being vested or present, as being perfectly acquired, or as being rights, I distinguished such as are vested and are accompanied with a right to present enjoyment or exercise, from such as are also vested but are not accompanied with a right to present enjoyment or exercise.
Introduction to the consideration of Titles, or of Investitive and Divestitive Facts.
Having considered the rights in question from the various aspects now enumerated, I proceed to consider them in respect of their titles: meaning by their titles, the facts or events of which they are legal consequences (or on which, by the dispositions of the law, they arise or come into being), and also the facts or events on which, by the dispositions of the law, they terminate or are extinguished.
In considering titles, or investitive and divestitive facts, I shall address myself particularly to titles as engendering or extinguishing rights in rem considered per se: that is to say, as not combined with rights in personam.
Titles as engendering or extinguishing rights in personam, and as engendering combinations (simple or complex) of rights in rem and rights in personam, I shall discuss particularly hereafter.
Title by succession ab intestato, and by succession ex testamento, I shall also pass over for the present; even in respect of the cases (as, for example, a specific legacy) wherein it engenders a singular or particular right availing against the world at large. For the acquisition of a particular right (or of a res singula) by descent or testament, cannot be explained conveniently, unless acquisition by descent or testament of the university or aggregate of the intestate's or testator's rights be also explained at the same time.
Being engaged with the consideration of the Law of Things, I shall also for the present postpone the consideration of titles, in so far as they engender or extinguish status or conditions, and in so far as they are in any way implicated with status or conditions.
Being engaged with the consideration of primary rights and 872duties, I shall also postpone delicts considered as titles, with the titles which arise from delicts in the way of consequences, till I come to treat of the rights and duties which I style sanctioning or secondary.
But though, in considering titles, I shall address myself particularly, for the present, to titles as engendering and extinguishing rights in rem considered per se, I shall preface my remarks on titles, as engendering and extinguishing the rights in question, by certain remarks which apply to titles generally.
From these remarks, applicable to titles generally, I shall proceed to the leading distinctions between titles as engendering or extinguishing rights of the class in question: though, in considering those leading distinctions, and, indeed, throughout the course of my present disquisition, I shall often be obliged to advert to titles as engendering rights of other classes.
Having made certain remarks applicable to titles generally, and on the leading distinctions between titles as engendering and extinguishing the rights particularly in question, I shall consider seriatim certain titles (as engendering and extinguishing (that is) the rights particularly in question), which, in some shape or other, are found in every system, and are therefore appropriate matter for General Jurisprudence. The titles which are peculiar to particular systems or such modifications of the titles common to all systems as are peculiar to particular systems, are foreign to the subject and scope of my Course: And when I mention them, I shall merely advert to them for the purpose of illustration.
Of the titles which I shall thus consider simply and seriatim, the following are the principal:
1st. The acquisition of jus in rem by occupancy: i.e. by the apprehension or occupation of a thing which has no owner, with the purpose of acquiring it as one’s own. (We might take a thing having already an owner, with the purpose of acquiring it as our own. But in that case the right which we acquire is a different right; that which is called a right of possession, a right availing against all the world except the owner of the subject.)
2ndly. The acquisition of jus in rem by labour: i.e. by labour expended on a subject which has no previous owner, or even on a subject which has. For there are various cases in which a party acquires a right in a thing belonging to another, by labour employed upon it; for instance, in the Roman Law by specification, that is, by giving it a new form.
8733rdly. The acquisition of jus in rem by accession: that is to say, through the medium of a thing of which one is owner already; as in the case of a thing attaching to another, as land washed away and joined to one’s own land, or the fruits arising from one’s own land.
4thly. The acquisition of jus in rem by occupancy or labour combined with accession.
5thly. The various modes of acquiring jus in rem which fall under the generic name of title by alienation; meaning by alienation, the intentional and voluntary transfer of a right (or of a fraction of a right) by the party in whom the right resides, to another party.
6thly. The acquisition of jus in rem by præscription: the consideration of which title will involve a previous consideration of the so-called right of possession.
7thly and lastly. Such modes of losing rights as are not involved by implication in modes of acquiring them. For as every mode of acquisition is not derived from a pre-existing title, so may a title end without engendering another. Occupancy, for example, is not a title derived from a previous title: for title by occupancy, strictly and pro-eminently so called, is a title consisting in the apprehension of what was previously no man’s, with an intent to make it one’s own. And so, where absolute property terminates by the annihilation of its subject, the mode by which the owner loses his right is not at the same time a title to a right in another. Although, then, there are many cases in which a party in acquiring a right deprives another party of a right, there are also many cases in which one right begins when no other right ends, or ends when no other right begins.
In considering the titles to which I have now adverted, I shall commonly assume that the right which is the subject of the acquisition or loss, is absolute property, or dominion strictly so called, over a singular or particular thing in the proper acceptation of the name: noting from time to time, as I may see occasion, the effect of the title in question in engendering or extinguishing rights which are not rights of that class or description.
The above is, I think, the way in which titles are commonly treated. It would be possible to arrange rights and titles in a great variety of ways. The basis of the arrangement might even be the titles, or investitive events themselves, and rights might be arranged under them. This arrangement has been 874suggested by Mr. Humphreys. But generally the differences of the kinds of rights are assumed as the basis of the arrangement, and the titles are treated incidentally. The Roman lawyers, for example, first treat of dominium and then of jura in re alienâ. They refer briefly again to these modes of acquisition or loss which they had before treated more amply under dominium, inserting any peculiarities arising from the nature of the fractional right engendered or lost. And I am inclined to think that this would be found on trial to be incomparably the best mode of arranging the subject.