[26] Dalager, op. cit. p. 25.
Besides occupation, or the taking possession of a thing, the keeping possession of it may establish a right of ownership. That these principles, though closely connected with each other, are not identical is obvious from two groups of facts. First, a proprietary right which is based on occupation may disappear if the object has ceased to remain in the possession of the person who had appropriated it. The place occupied by a nomad is his only so long as he continues to stay there;[27] and among agricultural savages the cultivator frequently loses his right to the field when he makes no more use of it[28]—though, on the other hand, instances are not wanting in which cultivation gives proprietary rights of a more lasting nature.[29] Loss of possession may, indeed, annul or weaken ownership gained by any method of acquisition. In the Hindu work Panchatantra it is said that the property in “tanks, wells, ponds, temples, and choultries” will no longer rest with persons who once have left them.[30] Among the natives of the Sansanding States the right to a house is lost by its being abandoned.[31] In Greenland, if a man makes a fox trap and neglects it for some time, another may set it and claim the captured animal.[32] So also the finder’s title to the discovered article springs from the fact that the original owner’s right has been relaxed by his losing the possession of it. Secondly, the retaining possession of an object for a certain length of time may make it the property of the possessor, even though the occupation of that object conferred on him no such right, nay though the acquisition of it was actually wrongful.[33] According to the Roman Law of the Twelve Tables, commodities which had been uninterruptedly possessed for a certain period—movables for a year, and land or houses for two years—became the property of the person possessing them.[34] This principle, known to the Romans as usucapio, has descended to modern jurisprudence under the name of “prescription.” It also prevailed in India since ancient times. The older law-books laid down the rule that, if the owner of a thing is neither an idiot nor a minor and if his chattel is enjoyed by another before his eyes during ten years and he says nothing, it is lost to him, and the adverse possessor shall retain it as his own property;[35] but it seems that later on the period of prescription was extended to thirty years or even more.[36] In this connection it should also be noticed that the division of labour, implying the use of certain articles, often confers proprietary rights to those articles upon the persons who make habitual use of them, as in the case of women becoming the owners of the household goods.[37]
[27] Cf. Post, Afrikanische Jurisprudenz, ii. 167.
[28] Morgan, League of the Iroquois, p. 326. Dorsey, ‘Omaha Sociology,’ in Ann. Rep. Bur. Ethn. iii. 366. Bourke, Snake-Dance of the Moquis, p. 261. Shooter, Kafirs of Natal, p. 16; Lichtenstein, Travels in Southern Africa, i. 271 (Kafirs). MacGregor, in Jour. African Soc. 1904, p. 474 (Yoruba). Leuschner, in Steinmetz, Rechtsverhältnisse, p. 25. Lang, ibid. p. 264. (Washambala). Marx, ibid. p. 358 (Amahlubi). Sorge, ibid. p. 422 (Nissan Islanders). Waitz, op. cit. i. 440. Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 71 sqq. Post, Entwicklungsgeschichte des Familienrechts, p. 283 sqq. Idem, Grundriss der ethnol. Jurisprudenz, i. 343 sq. de Laveleye-Bücher, Das Ureigenthum, ch. xiv. p. 270 sqq. Among the Rejangs of Sumatra a planter of fruit-trees or his descendants may claim the ground as long as any of the trees subsist, but when they disappear “the land reverts to the public” (Marsden, op. cit. p. 245).
[29] von Martius, Von dem Rechtszustande unter den Ureinwohnern Brasiliens, p. 35 sq. (Brazilian aborigines). Steinmetz, Rechtsverhältnisse, p. 53 (Banaka and Bapuku). Kohler, ‘Banturecht in Ostafrika,’ in Zeitschr. f. vergl. Rechtswiss. xv. 48 (natives of Lindi). Trollope, op. cit. ii. 302 (Kafirs). Post, Afrikanische Jurisprudenz, ii. 169. Idem, Entwicklungsgeschichte des Familienrechts, p. 285 sq. Schurtz, in Zeitschrift für Socialwissenschaft, iii. 255. Among the Angami Nagas any member of a village “may choose to leave his fields untilled for one year and cannot be compelled to grow his crops during the next, but after that, if illness or idleness prevent him from overtaking the work, his village insists on the fields being let” (Prain, ‘Angami Nagas,’ in Revue coloniale internationale, v. 484).
[30] Panchatantram, iii. p. 15.
[31] Mademba, in Steinmetz, Rechtsverhältnisse, p. 91.
[32] Dalager, op. cit. p. 27.
[33] See Mill, Principles of Political Economy, i. 272; Thiers, op. cit. p. 108; Waitz-Gerland, op. cit. vi. 228 (Maoris).
[34] Hunter, Roman Law, p. 265 sqq. Maine, Ancient Law, p. 284. Girard, Manuel élémentaire de droit romain, p. 296 sqq. Puchta, Cursus der Institutionen, ii. 202 sqq.