Property law

“ ILLUSTRATION.—An illustration that gives us the idea of property will make our definition clear. A takes his shoes to a cobbler to be repaired. When he calls for them, he does not have the price for the work, and the cobbler refuses to give them up. Both A and the cobbler have a property right in the shoes. The right to absolute ownership is in A, that is his property right. The temporary possession, however, is in the cobbler, and he may hold the shoes under the lien for repairs indefinitely and until he receives his compensation. The lien is his property right. ”

“ Now, the law bases property upon immemorial, unquestionable possession; that is, prescription. Labor is only the sensible sign, the physical act, by which occupation is manifested. If, then, the cultivator remains proprietor after he has ceased to labor and produce; if his possession, first conceded, then tolerated, finally becomes inalienable,—it happens by permission of the civil law, and by virtue of the principle of occupancy. So true is this, that there is not a bill of sale, not a farm lease, not an annuity, but implies it. ”

“ The old rule, expressed in the maxim mobilia sequntur personam, by which personal property was regarded as subject to the law of the owner's domicile, grew up in the Middle Ages, when movable property consisted chiefly of gold and jewels, which could be easily carried by the owner from place to place, or secreted in spots known only to himself. In modern times, since the great increase in amount and variety of personal property, not immediately connected with the person of the owner, that rule has yielded more and more to the lex situs,-the law of the place where the property is kept and used. ”

“ I ask, then, in the first place, how possession can become property by the lapse of time? Continue possession as long as you wish, continue it for years and for centuries, you never can give duration—which of itself creates nothing, changes nothing, modifies nothing—the power to change the usufructuary into a proprietor. Let the civil law secure against chance-comers the honest possessor who has held his position for many years,—that only confirms a right already respected ”

“ The owners of property, especially if it be valuable and available, do not often allow it to remain in the quiet and unquestioned enjoyment f others. Such a course is not in accordance with the ordinary conduct of men. When, therefore, possession and use are long continued, they create a presumption of lawful origin; that is, that they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property. ”

“ Under the laws that at any time exist individuals may acquire property in land, which must be respected by their fellows, and such property, according to its nature, as determined by existing law, they may use or abuse, sell, donate, or devise, substantially as they please. (4) But no property in land can be acquired except subject to the limitation that it may at any time be qualified or destroyed at the will of the legislature, expressed in general laws applying to all the land within the jurisdiction. ”

“ Nevertheless, by a higher law, the property will, year after year, write every statute that respects property. The non-proprietor will be the scribe of the proprietor. What the owners wish to do, the whole power of property will do, either through the law or else in defiance of it. Of course I speak of all the property, not merely of the great estates. When the rich are outvoted, as frequently happens, it is the joint treasury of the poor which exceeds their accumulations. Every man owns something, if it is only a cow, or a wheel-barrow, or his arms, and so has that property to dispose of. ”

“ Property is the suicide of society. Possession is a right; property is against right. Suppress property while maintaining possession, and, by this simple modification of the principle, you will revolutionize law, government, economy, and institutions; you will drive evil from the face of the earth.
II. All having an equal right of occupancy, possession varies with the number of possessors; property cannot establish itself.
III. The effect of labor being the same for all, property is lost in the common prosperity. ”

“ Where these two rights do exist, in their more or less modified form, you have the explanation of the fact that when a married man sells real property, his wife joins in the deed, or when a married woman sells real property, her husband joins in the deed. The act of either in joining, releases the dower or curtesy right and allows the purchaser to get a clear title.
CONFLICT OF LAWS.—We have already referred to this topic. It frequently happens that a person dies owning real property located in a number of States. ”

“ But property is also the right to exchange, to transfer, and to sell. If, then, the social condition is such that the proprietor, ruined by usury, may be compelled to sell his possession, the means of his subsistence, he will sell it; and, thanks to the law, accumulated property—devouring and anthropophagous property—will be established. ”

“ Jurists do not quite agree as to the full extent of a man’s interest in, and control of, the property he acquires. There are different theories as to the real title to property; most all, however, agree that occupation, united with labor, is the best ground of a title to exclusive ownership of property. But how long will this ownership or control continue? During lifetime, or for a longer period? ”

“ Feudal principles apply to real estate. The notions of personal property of the common law, which is founded on natural law, depend materially on possession, and that of an adverse character, exclusive in its nature and pretensions. ”

“ The making of a just return for the use of the property involves the recognition of its fair value, if it be more than its cost. The property is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of law. ”

“ But when the law declares that the lapse of time changes possessor into proprietor, it supposes that a right can be created without a producing cause; it unwarrantably alters the character of the subject; it legislates on a matter not open to legislation; it exceeds its own powers. Public order and private security ask only that possession shall be protected. Why has the law created property? Prescription was simply security for the future; why has the law made it a matter of privilege? ”

“ Upon any other hypothesis, the law of property would be simply the law of force. Now it is undeniable, that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State, or the government acting as its agent, and the grantee ”

“ Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.... ”

“ The court said in that case, 'by grants of land, we do not mean the mere grant itself, but the right, title, legal possession, and estate, property and ownership, legally resulting upon a grant of land to the owner.' But in the case before us, from the want of survey, or some point for the beginning of one, there can neither be a seisin in fact nor in law; for identity of premises is as essential for a seisin in law, as it is necessarily implied in a seisin in fact. ”

“ On the other hand, it is equally evident that the same proprietors could not overestimate the value of their property, in order to increase their incomes beyond the limits of the law, since the tenants and farmers, with their old leases in their hands, would enter a protest. ”

“ In order that the question of proprietorship may not remain too long unsettled, and thereby injure the public welfare, disturbing the peace of families and the stability of social transactions, the law has fixed a time when all claims shall be cancelled, and possession shall regain its ancient prerogative through its transformation into property. ”

“ In a devise of real and personal property, the law makes a distinction as to the two estates, in the construction of devisees; and, when technical language is used, the devisee takes an absolute estate in the personal, and a limited estate, or an estate tail, in the real property. ”

“ A proprietor shall have the right to possess, enjoy, and dispose of assets either individually or jointly with others. The inviolability of property and the right to inherit property shall be protected by law. ”

“ The most exact idea of property is given us by the Roman law, faithfully followed in this particular by the ancient legists. It is the absolute, exclusive, autocratic domain of a man over a thing,—a domain which begins by usucaption, is maintained by possession, and finally, by the aid of prescription, finds its sanction in the civil law; a domain which so identifies the man with the thing, that the proprietor can say, “He who uses my field, virtually compels me to labor for him ”

“ It is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. ”

“ This was answered in the negative, and in the course of the reasoning the court said, p. 295: 'The right is not limited in its enjoyment by territorial bounds, but, subject only to such statutory regulations as may be properly made concerning the use and enjoyment of other property, or the evidences of title to the same, the proprietor may assert and maintain his property right wherever the common law affords remedies for wrongs;' continuing with what we have first quoted. ”

“ Private property shall not be appropriated without the consent of the owner, except for the sake of public use, and with previous indemnification. The law shall determine the authority which may make the appropriation and the conditions under which it may be carried out. No corporation, civil or ecclesiastical, whatever may be its character, denomination, or object, shall have legal capacity to acquire in proprietorship or administer for itself real estate, with the single exception of edifices destined immediately and directly to the service and object of the institution. ”

“ While the Roman law and all the savants inspired by it teach that property in its origin is the right of first occupancy sanctioned by law, the modern legists, dissatisfied with this brutal definition, claim that property is based upon LABOR. Immediately they infer that he who no longer labors, but makes another labor in his stead, loses his right to the earnings of the latter. ”

“ PERSONAL PROPERTY AND REAL PROPERTY DISTINGUISHED.—Real property has been defined to be co-extensive with lands, tenements, and hereditaments; to put it more simply, we may say that it consists of land and anything that is permanently affixed to the land. Personal property embraces all objects which are capable of ownership except land. One fundamental difference between the two is that real property is generally considered to be immovable, while such property as is movable is usually termed personal property. ”

“ While the law of contract, which regulates only the mutual interests of men, has not varied for centuries (except in certain forms which relate more to the proof than to the character of the obligation) , the civil law of property, which regulates the mutual relations of citizens, has undergone several radical changes, and has kept pace in its variations with all the vicissitudes of society. ”

“ Such an author teaches that property is a civil right, born of occupation and sanctioned by law; another maintains that it is a natural right, originating in labor,—and both of these doctrines, totally opposed as they may seem, are encouraged and applauded. I contend that neither labor, nor occupation, nor law, can create property ”

“ Thus, a mortgage on land is personal property, also the shares of stock in a corporation, although the corporation may be organized to engage exclusively in the ownership of real property, is personal property. Where a person dies leaving a will, his real property goes directly to the persons to whom he leaves it in the will. In the case where he dies intestate, his real property passes directly to his heirs at law, who are designated by statute. ”

“ Whence it follows that the law can modify, change, reform, and judge property. Reconcile that, if you can, with the idea of an eternal, absolute, permanent, and indefectible right.
However, M. Laboulaye is in perfect accord with himself when he adds, “Possession of the soil rests solely upon force until society takes it in hand, and espouses the cause of the possessor;” [27] and, a little farther, “The right of property is not natural, but social. The laws not only protect property: they give it birth,” &c. ”

“ But the proposition that the soil is property conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estate; and it is sometimes necessary to remember that the name of property belongs to some of the essential proprietary rights vested in the person called the owner of the soil.... ”