CHAPTER IX.
TITLE BY SETTLEMENT.
Title by Settlement an imperfect Title.—Presumption of Law in its Favour.—Made perfect by undisturbed Possession.—Wheaton.—Title by Usucaption or Prescription.—Vattel.—Acquiescence a Bar to conflicting Title of Discovery.—Hudson’s Bay Settlements.—Treaty of Utrecht.—The Vicinitas of the Roman Law.—Mid-channel of Rivers.—Contiguity, as between conterminous States, a reciprocal Title.—Negotiations between Spain and the United States of America.—Vattel.—Territorial Limits extended by the Necessity of the Case.—Right of Maritime Jurisdiction, how far accessorial to Right of Territory.—Right of Pre-emption.—New Zealand.—North American Indians.—Right of Innocent Use.
Title by settlement, like title by discovery, is of itself an imperfect title, and its validity will be conditional upon the territory being vacant at the time of the settlement, either as never having been occupied, or as having been abandoned by the previous occupant. In the former case, it resolves itself into title by occupation; in the latter, the consent of the previous occupant is either expressed by some convention, or presumed from the possession remaining undisputed. Title by settlement, however, differs from title by discovery, or title by occupation, in this respect,—that no second discovery, no second occupation can take place, but a series of settlements may have been successively made and in their turn abandoned, so that the last settlement, when confirmed by a certain prescription, may found a good territorial title. Again, the presumption of law will always be in favour of a title by settlement. “Commodum possidentis in eo est, quod etiamsi ejus res non sit, qui possidet, si modo actor non potuerit suam esse probare, remanet in suo loco possessio; propter quam causam, cum obscura sint utriusque jura contra petitorem judicari solet.” (Inst., l. iv., tit. 15, § 4.)
Where title by settlement is superadded to title by discovery, the law of nations will acknowledge the settlers to have a perfect title; but where title by settlement is opposed to title by discovery, although no convention can be cited in proof of the discovery having been waived, still, a tacit acquiescence on the part of the nation that asserts the discovery, during a reasonable lapse of time since the settlement has taken place, will bar its claim to disturb the settlement. Thus, Mr. Wheaton (part ii., chap. iv., § 5) writes:—“The constant and approved practice of nations shows, that by whatever name it be called, the uninterrupted possession of territory or other property, for a certain length of time, by one state, excludes the claim of every other, in the same manner as by the law of nations, and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it.”
Title, then, by settlement, though originally imperfect, may be thus perfected by enjoyment during a reasonable lapse of time, the presumption of law from undisturbed possession being, that there is no prior owner, because there is no claimant,—no better proprietary right, because there is no asserted right. The silence of other parties presumes their acquiescence: and their acquiescence presumes a defect of title on their part, or an abandonment of their title. A title once abandoned, whether tacitly or expressly, cannot be resumed. “Celui qui abandonne une chose cesse d’en être le maître, et par conséquent une chose abandonnée devient une chose qui n’est à personne.” (Wolff, cciii.)
Title by settlement, then, as distinguished from title by discovery, when set up as a perfect title, must resolve itself into title by usucaption or prescription. Wolff defines usucaption to be an acquisition of domain founded on a presumed desertion. Vattel says it is the acquisition of domain founded on long possession, uninterrupted and undisputed, that is to say, an acquisition solely proved by this possession. Prescription, on the other hand, according to the same author, is the exclusion of all pretensions to a right—an exclusion founded on the length of time during which that right has been neglected; or, according to Wolff’s definition, it is the loss of an inherent right by virtue of a presumed consent. Vattel, writing in French, and observing that the word usucaption was but little used in that language, made use of the word prescription whenever there were no particular reasons for employing the other. The same remark may be applied in reference to our own language, and thus this title is generally spoken of as title by prescription.
What lapse of time is requisite to found a valid title by prescription has not been definitely settled. The law of nature suggests no rule. Where, however, the claimant cannot allege undoubted ignorance on his part, or on the part of those from whom he derives his right, or cannot justify his silence by lawful and substantial reasons, or has neglected his right for a sufficient number of years as to allow the respective rights of the two parties to become doubtful, the presumption of relinquishment will be established against him, and he will be excluded by ordinary prescription. Lapse of time, in the case equally of nations as of individuals, robs the parties of the means of proof: so that if a bonâ fide possession were allowed to be questioned by those who have acquiesced for a long time in its enjoyment by the possessors, length of possession, instead of strengthening, would weaken territorial title. This result would be so generally inconvenient, as to be inadmissible.