Bracton: Thorne Edition: English. Volume 2, Page 159

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Volume 2, Page 159

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[001] how the possession and dominion of things is acquired through time, when one has
[002] obtained possession by his own act without title or livery. Also how the dominion
[003] and possession of incorporeal things, as of a right, that is, of some servitude in the
[004] property of another, is acquired by long, continuous and peaceful use, without
[005] express but by tacit consent, through the acquiescence of the true lord who knew
[006] and did not forbid but permitted.¹ Now we must explain how the dominion and
[007] possession of incorporeal things, as of rights, are acquired by express consent, by
[008] way of gift and by the creation of a servitude. Rights, being incorporeal, cannot be
[009] seen or touched, and thus do not admit of livery as corporeal things do.² The gift
[010] must therefore be effected by the intention of the contracting parties, simply by
[011] the intention and will to transfer and accept and the view of the corporeal thing³
[012] in which these rights inhere, and in that way, by means of a legal fiction, they are
[013] quasi-possessed; he who is thus in possession by a legal fiction always quasi-uses
[014] until he is disseised by force or without force by non-use,⁴ [Possession of a corporeal
[015] thing may be acquired without use,⁵ and similarly, the quasi-possession of an
[016] incorporeal thing may be acquired without use. But when use has been made of an
[017] incorporeal thing, by such use possession is retained, and what before was fictitious is
[018] made real; when one has made use of such a right he can transfer to another
[019] both the right and the use, which he could not do before such use.]⁶ and if he does
[020] not use in his lifetime, being unwilling or unable to do so, his heir may use if the
[021] servitude was given ‘to him and his heirs,’ and so from heir to heir, near and remote,
[022] by force of the modus of the gift.⁷ If it is constituted ‘to such a one and his heirs or to
[023] whomsoever he may wish to give or assign,’ all such are admitted successively to its
[024] use by force of the modus of the constitution or gift,⁸ and, since they are in quasi-possession,⁹
[025] all others are entirely excluded from using it. ¹⁰Rights of this sort, such
[026] as servitudes, may be called the appurtenances of some corporeal thing and are
[027] [owed] from one corporeal thing to another, as from another's estate or tenement to
[028] one's own estate or tenement, in many ways, as will be explained more fully below
[029] [in the portion] on the assises.¹¹ [Such rights are transferred from one person to
[030] another by use and quasi-use before real use, as said above.] And as one has rights in
[031] another's estate, so he has them in his own,¹² as where he has an estate to which the
[032] advowson of a church belongs. [The church and] the right to present will belong to
[033] the lord, and though the church, as built of timber and stone, is corporeal, the right
[034] to present will be incorporeal, and hence it is one thing to give the church and

Notes

1. Supra 158

2. Supra 48, 121, 124, infra iii, 165

3. Infra iii, 165, 168, 173

4. Infra 167, iii, 165, 168, 173, 177, iv, 318

5. Supra 125-6, infra iii, 125

6. Infra 161, iii, 166, 173, iv, 319

7. Infra 162, iii, 173

8. Infra 162, 177

9. Infra 167, iii, 166, 173

10. New paragraph

11. Infra iii, 162 ff.

12. Infra 177