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falsely say of a man that he has been guilty of a crime. which would subject him to infamous punishment, or to say falsely of a woman that she is unchaste, is slander and the injured party may recover damages of the offender in a civil action. To charge a man falsely before a magistrate with the commission of a crime with malice and without probable cause, is malicious prosecution for which in a proper case damages will be awarded to the injured party.
§ 48. Right to property.--The right of property is secured by the fifth amendment to the constitution of the United States which provides that: “No person shall be deprived of life , liberty or property without due process of law,” and by the fourteenth amendment, which provides that: “No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
§ 49. The right of property is the right of dominion, ownership, possession. Law writers have different theories of the origin of this right. Blackstone says, “The earth and all things therein were the general property of mankind from the immediate gift of the Creator. * * By the law of nature and reason, he who first began to use it (property) acquired therein a kind of transient property that lasted as long as he was using it and no longer ; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common and no part was the perma
nent property of any man in particular; yet whoever was in the occupation of any determined spot of it for rest, or shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use or occupancy of it, another might seize it without injustice.”
PROPERTY IN GENERAL.
$ 50. Basis of ownership. — In speaking of the Roman laws the German jurist Savigny says that "all property is founded on adverse possession ripened by prescription." Sir Henry Maine gives it as his opinion that the "true basis of the right of property is not an instinctive bias towards the institution of property, but a presumption arising out of the long continuance of that institution that everything ought to have an owner. Where possession is taken of an object which is not or has never been reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the occupant. The occupant, in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing." The individual right of property, as appears from a closer study of ancient law, seems to be a comparatively modern conception. Ancient law knows next to nothing of individuals; it is concerned not with individuals, but with families; not with single human beings, but groups. It is more likely that joint ownership and not separate ownership prevailed in primitive societies.
$ 51. Origin of private ownership. — Out of this community ownership, in which the rights of all the individuals were blended, there grew the idea of private property. So long as the family or tribe or community held property in common the right of individual or private ownership was practically ignored, if, indeed, it existed at all. This right grew and strengthened as the family, tribe or community disintegrated under the ameliorating influences of advancing civilization, and as the individual escaped from the tyranny of the head of the family or the chief of the tribe.
$ 52. Its importance. The power or assertion of exclusive ownership is manifested by boundaries, fences, walls encircling land, and the actual possession and control of personal property. This dominion of the individual over his property is permitted and defended by the state as a pure matter of convention and policy. In a savage state it is not es. sential, except as to things of little value, but in a civilized society it is the basis of property, and without it progress would seem to be impossible. Land being indestructible in character, limited in extent and incapable of increase, can not be regarded as a true subject of permanent individual appropriation. And however important it is that the tenure of the culti'vation of the soil should be secure, the paramount dominion of the state over every part of its territory is a fact which in a high condition of social progress can not be emphasized too strongly or made to be felt too universally and really. By enactments pro
hibiting the entailment of estates in land by abolishing primogeniture, by succession taxes, and other devices in case of need, the states of the Union have it in their power to prevent the hurtful monopolization of land.
To protect this right of property, whatever may be its origin or extent, the law has provided numerous methods to prevent the invasion of the right, and to redress wrongs by which it is violated. The laws for redressing injuries to the rights to life and personal security are comparatively few—the laws for the protection of the right of property are, as we shall see, numerous.
$ 53. Kinds of property.—There are three kinds of property which are the subject of individual ownership, real, personal and mixed, and these are subdivided into corporeal and incorporeal. There can be no individual or exclusive ownership of any object which can not be exclusively possessed or enjoyed ; so that the elements of light, air and water, which a man may occupy and use by means of his windows, his gardens, his walls and other conveniences are his so long as they remain in his possession, but if he ceases to possess them or voluntarily abandons them, they return to the common stock, and the next taker has an equal right to seize and enjoy them. This principle applies to animals feræ naturæ, surface and subterranean streams of water, and veins or reservoirs of oil or gas beneath the soil. The doctrine of ancient lights which once prevailed in England, that is, the right that the first builder upon ground had to prevent the owner of the adjoining ground from erecting a structure that would shut out the light or air from the first builder's house, has been