One fact which has this effect is first possession. The captor of
wild animals, or the taker of fish from the ocean, has not merely
possession, but a title good against all the world. But the most
common mode of getting an original and independent title is by
certain proceedings, in court or out of it, adverse to all the
world. At one extreme of these is the proceeding in rem of the
admiralty, which conclusively disposes of the property in its
power, and, when it sells or condemns it, does not deal with this
or that man's title, but gives a new title paramount to all
previous interests, whatsoever they may be. The other and more
familiar case is prescription, where a public adverse holding for
a certain time has a similar effect. A title by prescription is
not a presumed conveyance from this or owner alone, it
extinguishes all previous and inconsistent claims. The two
coalesce in the ancient fine with proclamations where the
combined effect of the judgment and the lapse of a year and a day
was to bar claims. /1/
So rights analogous to those of ownership may be given by the
legislature to persons of whom some other set of facts is true.
For instance, a patentee, or one to whom the government has
issued a certain instrument, and who in fact has made a
patentable invention.
[246] But what are the rights of ownership? They are
substantially the same as those incident to possession. Within
the limits prescribed by policy, the owner is allowed to exercise
his natural powers over the subject-matter uninterfered with, and
is more or less protected in excluding other people from such
interference. The owner is allowed to exclude all, and is
accountable to no one. The possessor is allowed to exclude all
but one, and is accountable to no one but him. The great body of
questions which have made the subject of property so large and
important are questions of conveyancing, not necessarily or
generally dependent on ownership as distinguished from
possession. They are questions of the effect of not having an
independent and original title, but of coming in under a title
already in existence, or of the modes in which an original title
can be cut up among those who come in under it. These questions
will be dealt with and explained where they belong, in the
Lectures on Successions.
[247]
LECTURE VII. -- CONTRACT.--I. HISTORY.
The doctrine of contract has been so thoroughly remodelled to
meet the needs of modern times, that there is less here than
elsewhere for historical research. It has been so ably discussed
that there is less room here elsewhere for essentially new
analysis. But a short of the growth of modern doctrines, whether
necessary or not, will at least be interesting, while an analysis
of their main characteristics cannot be omitted, and may present
some new features.
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