A
piece of ground, however, which can only become publicly free by
contract, must actually be in the possession of all those associated
together, who mutually interdict or suspend each other, from any
particular or private use of it.
This original community of the soil and of the things upon it
(communio fundi originaria), is an idea which has objective and
practical juridical reality and is entirely different from the idea of
a primitive community of things, which is a fiction. For the latter
would have had to be founded as a form of society, and must have taken
its rise from a contract by which all renounced the right of private
possession, so that by uniting the property owned by each into a
whole, it was thus transformed into a common possession. But had
such an event taken place, history must have presented some evidence
of it. To regard such a procedure as the original mode of taking
possession, and to hold that the particular possessions of every
individual may and ought to be grounded upon it, is evidently a
contradiction.
Possession (possessio) is to be distinguished from habitation as
mere residence (sedes); and the act of taking possession of the soil
in the intention of acquiring it once for all, is also to be
distinguished from settlement or domicile (incolatus), which is a
continuous private possession of a place that is dependent on the
presence of the individual upon it.
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