Пятый отдел. Об основаниях и доказательствах вотчинного права
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§ 80. The origin of patrimonial right to real estate and its initial basis is strengthening with the help of authority. The necessary connection between patrimonial land rights and the authorization of state power. The need for absolute justification for property rights. The meaning of prescription
The concept of law, without a doubt, is rooted in the human spirit, regardless of human institution, but when it begins to seek external expression, then it receives a form combined with human institution, with human authority. Property, the most definitive and absolute of civil rights, strives to take on the most definitive forms, and sooner or later develops for itself an absolute law of property. But the law does not have full practical meaning without sanction, i.e. without a penalty associated with the law, without the practical possibility of protecting the legal status, restoring the violation of the legal status. And such a sanction can only be given and truly delivered by the authority of the authorities in civil society.
Movable property does not need this sanction as much as immovable property; for movable property does not have a strong connection with a person’s personality; its owner can himself protect his property through personal care and action; a movable thing has natural integrity and almost does not require artificial limitation, isolation, or cutting; A movable thing is essentially and in most cases a product of personal labor and personal strength. On the contrary, real estate, and especially the earth, the direct creation of God, containing within itself a common source of productive power, a common receptacle for objects of possession, in itself, by nature, is not an object of personal human possession. The earth is motionless, but people move and change on it, turning around the earth (by nature). So, the exclusive personal possession of land, in order to become like the possession of a movable thing, needs definition, isolation, artificial individualization of the object of power.
A person must still sit on the earth, take possession of a certain part of it, “name his name on the earth”, so that the land becomes his property, so that, both in his presence and in his absence, everyone else, approaching his lot, sees his name written on the earth, and recognizes his power over his lot.
This is the natural reason why the history of land ownership is everywhere inextricably, organically connected with the history of the formation of civil society and its authorities, from which the sanction of law comes. That is why among all peoples, to a greater or lesser extent, land ownership originates from the supreme power, and through investiture it establishes its original foundations. This origin is understandable, for man by himself cannot in any way by his own labor, no matter how long it lasts, by his mere need, no matter how obvious, legally isolate himself on earth. Sooner or later, another will come up and, putting his labor and his needs against the owner, will demand division from him - on the same basis on which individual ownership began and continued. Here the compliance of one to the other is determined only by the action of material force, but the question is: on what basis? By what right? has not yet found and cannot find an answer for itself.
The basis for exclusive land ownership can only be established by authority.
Throughout the history of the new European societies the following phenomenon is noticeable. A new tribe comes in the strength of a squad, sits in the place of the conquered tribe and on its land. Little by little, the borrowing of land begins; the borrowing is carried out in their own name by those of the newcomers who, as part of the new society, have the meaning of a full-fledged, free, free person. They occupy an inheritance by choice or by lot, and call it theirs, without asking anyone's permission. This is the origin of the so-called allodial lands in Western Europe. Then the head of the squad, acquiring the ideal right of supremacy, begins to distribute land; allodial owners, for their part, distribute the lands into subordinate ownership: this is how fief, or beneficial ownership, is formed. One is considered independent, direct possession; the other is dependent and subordinate.
But both become law only with the assistance of authority, from which all law comes; for every state has the need to justify itself, it must point to its beginning; and then, willy-nilly, the identification begins to be based on the authorization of the authorities. In addition, the subordination of some classes to others, increasing with the development of feudal relations, produces forms of personal relations that are embarrassing for the majority; in society there is aroused a desire for equality and truth, a desire to bring to the center unconditional, impartial power, the same for everyone. Central power, growing and strengthening, acquires the ideal significance of supreme power, and in this capacity is revered as the source of truth and justice, the establisher of every form of civil relations: all civil rights are attributed to this power and receive investiture from it.
The right of ownership, as absolute, also requires justification of the absolute. It is required to prove not only the best, preferential right, but the only, exclusive right, not allowing any comparison or competition. But with the successive transfer of ownership of the same property from person to person, through a chain of periods of ownership and generations, absolute proof of ownership is unthinkable or difficult to the point of impossibility. In order to justify one’s right absolutely, it is necessary to approve each link in a long chain of transitions, and this is only possible where each transition was legal and hereditary - a case that can now very rarely occur 325. But where the chain of hereditary transfers is broken by transfers by assignment and contract, absolute proof of ownership becomes much more difficult, because here it would be necessary to justify the patrimonial right of each of the transferors who acquired the estate on a special basis and by a special act of private will.
When an estate has passed through several generations and made several transfers while remaining private property, it is very rare that the last owner is able to provide documentary evidence of each of the patrimonial rights that have successively succeeded in the estate since the time it first became private property; Consequently, the position of the last owner would be extremely difficult if, at each of the intermediate links of the transition, the enemy could question its correctness, due to the lack of direct documentary evidence. The situation is all the more difficult the less developed in public life the custom of documenting transactions and acquisitions is, and the less protected patrimonial documents are from destruction.
That is why, wherever the legal concept of the absolute right of ownership has been established, patrimonial rights would not have the proper firmness and patrimonial possession would not have the proper security, unless a practical means had been invented to protect both - the power of prescription, which finally consolidates and justifies the legal state of ownership. In such a state of society, which has not yet known the institutions of modern times, which have the express purpose of giving patrimonial rights full definition and securing them forever through land records and registration, the name given to her in the old days in all fairness belongs to prescription: patrona generis humani - “patron of the human race.” In this sense, they thoroughly note (Bork) that prescription is the fundamental principle of any land ownership: for in the lack of absolute proof of ownership, prescription serves as its best and most decisive proof.
§ 81. Foundations of patrimonial land law in Russia. The historical origin of patrimonial rights in central Russia is from estate ownership. Mixing of possessions and dismantling them through land surveying. Independent ownership of lands in the northern regions of Russia. Land ownership and the basis of land rights - in Little Russia, in the lands of the former Grand Duchy of Lithuania, in the Novorossiysk Territory and in Crimea
In our history, the idea of a formal distinction between patrimonial and personal rights, between a proprietary claim and a personal claim has not been developed at all; The concept of the unconditional meaning of property rights has not been developed. Therefore, there is nothing to look for in our history and absolute evidence of patrimonial right: in disputes about the right of ownership, about lands, about real estate, the subject and purpose of the proceedings is not the question of whose right is absolute, but whose right is the best, which side justified its right to the other side. This concept is consistent with the uncertainty of our legal life, in which, until modern times, the idea of complete absolute ownership did not find a strictly defined legal form, and land rights were expressed primarily in ownership, so that in a clash of ownership rights, that which was stronger and could justify itself before the other remained in force.
Taking possession served as the most common reason for starting a lawsuit, in which the owner was asked the question: why do you own? According to the reason given by the plaintiff, the defendant had to justify either his own possession only, or at the same time the possession of his predecessors, in a sequential connection of succession and transition, depending on how far the basis of the dispute brought by the opposing party related to how far it extended and to what point in the successive possession.
The evidence in this case is the certification of such an event or action, which indicates one of the legal ways of origin of property rights between private individuals (for example, a gift, sale, inheritance, will, etc.). But besides these derivative methods of acquisition, which are included, so to speak, in the daily circulation of civil life, many of the original methods of acquisition still retain not only historical, but also practical significance; some of them are still in effect to this day in practice, as can be seen from the previous presentation of various types of occupation, borrowing, allotment and allotment of state lands under current laws.
And when analyzing land rights of private ownership, which have been formed for a long time, it is often necessary to go back to their main historical foundations; and these grounds are very diverse, for each of the individual regions that became part of the Russian state had its own history of land ownership, its own fundamental historical foundations of patrimonial law, and everywhere the political history of the region, in the era of its autonomy, left deep traces in patrimonial law. As each individual region annexed to Russia, one of the main concerns of legislation was to determine the legal meaning of these historical foundations of local patrimonial law and to associate them, so to speak, with the general system. A detailed study of all these types of patrimonial ownership in Russia from a legal point of view has not yet been undertaken in our country, but it would be extremely important not only for historical science, but also for judicial practice, which is in great need of clarification of the concepts of rights associated with various patrimonial acts of old times that are subject to discussion.
The study of this subject is not part of the purpose of this work; however, I consider it not superfluous to point out here, for explanation and example, in general, the most important foundations of land law, historically formed in different parts of Russia.
In the central state region of Russia, i.e. in the middle, lower and eastern zones of the empire, most of the land rights were based on scribe books, on local and patrimonial dachas from the government and on royal charters.
Ancient estates of warriors and boyars, estates held by private law by the descendants of former appanage princes, estates distributed by Moscow princes and kings to the Horde, Lithuanian and foreign immigrants (for example, in the land of Meshcherskaya, the current Tambov and Penza provinces), Tatar princes and Murzas who transferred to Moscow service (for example, Kasimov, Kashira), Tatar estates of gentiles, baptized and unbaptized, remaining in the former kingdom of Kazan, estates distributed to service people on a salary basis under the local system and then turned into patrimony, in the form of mercy or, more recently, by a general decree of Peter I, - lands granted from the estate to patrimony, purchased or exchanged from the treasury, and finally, local dachas, allocated to odnodvortsy and commoners in the order of guard and stanitsa service and then remaining in their possession as public state lands: - all this constitutes the mass of so-called local land ownership, from which little by little, strengthening and separating during transitions, allotments and sales, a homogeneous patrimonial right of landowners and landowners was formed.
These were, at first, rights recognized, assigned, approved in one form or another, rights that had the opportunity to indicate their beginning, to exhibit their justificatory title. But patrimonial rights of this kind were not distributed across state territory as a continuous mass of private land ownership.
On the contrary, they seemed like islands of a certain right among the mass of lands that constituted state property; and between these islands free, indefinite, unofficial land ownership gradually settled and strengthened; by taking over and economically developing lands that lay idle, they were separated from large settlements and placed on free and boundless land, between forests and steppes - hamlets, settlements, settlements, repairs, villages, without asking whose land they were placed on; free people, fugitives and settlers came to a new place - to plow the arable land and start a fishery, and settled as necessary, with demand and permission or without permission at all: so sometimes generations changed in one place, incubating it with labor and industry and not knowing any other owner except themselves and their fathers and fellow villagers.
It happened that the previous owner, not caring whether he had the right to dispose of his possession, sold or resold to a third party “everything that he owns and that is behind him,” and the successor, by virtue of the transfer, distributed his possession, at the very beginning indefinite and immeasurable, according to his economic arbitrariness. The owners transferred peasants, bought their people from other places to a new one, called back, settled and registered, willy-nilly, fugitive and wandering people, and little by little they occupied the empty lands around them for economic development both for their own needs and for the needs of the people settled. In the 18th century, state peasants and single-lords in their volosts often occupied and cleared land several miles from the village, established settlements on them, and then, under the guise of ownership, sold those lands to outsiders. Outsiders settled on urban pasture lands and on suburban lands without permission, or, under the pretext of quitrent use, took possession of occupied plots.
In the transitional and transformative era of our patrimonial right, i.e. In the 18th century, with the mixing of its old elements with new beginnings, this unconscious and silent formation of private possessions took place most actively among us through countless borrowings, settlements, possessions, clearings, etc., taking place in empty dachas of state-owned and unknown ownership, the unauthorized transformation of dependent ownership into independent ownership. But with the state’s decisive desire to organize institutions and to define rights and mutual relations, the state of uncertainty in which the rights of land ownership were located threatened with serious danger: on the one hand, clashes between private owners multiplied and did not find a legal outcome due to the uncertainty of the grounds and boundaries of land ownership; on the other hand, the interests of the state economy urgently demanded that state lands be made known and that unannounced and indiscriminate appropriations and borrowings be stopped in these lands in the future.
Land surveying in Russia was aimed at this goal. (See above about land surveying.)
In the ancient Novgorod regions (Ustyug and Vyatka provinces - now the provinces of Vologda, Vyatka, Arkhangelsk, Olonets), townspeople and even black people from ancient times owned lands in their own name. Such ownership remained in the era when the right of patrimonial land ownership became the exclusive property of service people. This right of independent ownership, which was an anomaly in the 17th century, was confirmed by Peter I in 1725; then, rejected by the Senate in 1751 and left in doubt by the boundary instructions of 1766, it nevertheless remained in effect until 1801, when all free people were allowed to own lands on the right of ownership. (See History of the Civil Law. Nevolin, vol. 2 § 232; and Veshnyakov’s article on ladles in the Journal of the Min. State Property of 1862.) In the same region, a mass of private estates was formed through the transformation of small and large princely appanages into estates, especially through colonization. Since ancient times, natives of Novgorod, fleeing from oppression or looking for trades, went to the far northern regions and “looked for lands there for themselves.”
The merchants who settled in this region were given royal letters of grant for land and trades, with the right to call back and transfer people (Svoezemtsevs on the Vaga, Strogonovs on the Kama, etc.). Great Russian people, moving to this region, occupied or bought land from the natives, transferred people here and settled them. In Siberia, most of the estates were formed through colonization, through borrowing, granting and settling Slobodchikova (see Journal of Min. Internal Affairs 1860, No. 10, article “Population of the Vologda Gubernia.” Rus. Bes. 1860, No. 1. “On land ownership in Siberia”) 326.
In the Little Russian provinces, land ownership was reflected in the political fate of the region there. During the period of Polish rule, large lordly estates were formed here, partly dismantled later by the Cossacks. Upon the annexation of Little Russia to the Russian kingdom, the hetmans arrogated to themselves the right to distribute the former gentry estates and military lands to elders and military officials. This right was recognized for them until Skoropadsky, under whom it was taken away from the hetmans by the Russian government. Many estates, under the name of rank, were distributed for use by military posts. The tsars, from the time of Peter I, began to grant estates to Russian nobles and generals from those confiscated after the Little Russian rebels: this is how the most significant landowner estates in Little Russia were formed. In many places, the settlement people, following the hetman's universals, settled settlements on the free land, populating them with people who had come from Great Russia. Meanwhile, in the possession of the ground (i.e.
who had land) Cossacks united small landholdings - in farmsteads and plots that were passed on hereditarily. The gentry or small noble landownership entered into an economic struggle with the Cossack landownership. The landowners began to buy land from the Cossacks in small plots, and one of the usual methods for this was the right of expropriation, by virtue of which the mortgaged land remained in the patrimonial possession of the creditor in case of arrears. Cossack lands, being in plot ownership, were subjected to small fragmentation during hereditary transfers, divisions and sales, which led to the remarkable development of inter-strip ownership in Little Russia. “Among the inhabitants of Little Russia,” said the decree of June 19, 1803, “there is one condition that does not exist either in Great or in White Russia, that is, the condition of the Cossacks, who, according to ancient laws, use lands acquired by merit or purchase from other owners, completely on the right of the nobility, and having numerous disputes with the landowners over them.” Therefore, the demarcation of Little Russia presented particular difficulties.
Land ownership in the lands of the former Grand Duchy of Lithuania has a separate history, i.e. in the current provinces of the northwestern and southwestern regions. Here, the appanage ownership of the princes received the form of feudal ownership, and the patrimonial rights to the land of service people degenerated from feudal relations and forms. The Grand Dukes of Lithuania distributed significant areas under the banner of the state to their relatives, princes and boyars, who, in turn, retaining seigneurial power, distributed smaller plots in the form of fiefs to smaller knights and subordinate “mestiches”. Former Russian appanage princes in the Russian regions of the Lithuanian principality received their possessions from the Grand Duke of Lithuania and from the King of Poland, swearing allegiance to him, and some of the princes accepted their fiefs from second or third hands.
After the establishment of Catholicism in Lithuania, a difference was established between Polish patrimonial owners, who, according to gentry law, had full ownership of the hereditary estate and were exempt from duties, and Russian boyars, who, according to the decree of Jagiello (1387) and the resolutions of the Gorodlensky congress (1413), gentry inheritance rights in estates were granted only for the adoption of Catholicism, and otherwise their land remained behind them is lifelong flax; There were few allodial owners among Russians. The equalization of patrimonial rights with the Catholic gentry was, as is known, one of the main reasons for the transition to Catholicism of the Russian noble families in Lithuania. However, regardless of this, the estate in Poland and Lithuania, as well as everywhere else, was gradually striving to become hereditary, and the decree of Sigismund Augustus in 1563 was a decisive step towards such a transformation, for this decree provided owners, without distinction of confessions, with free disposal of estates.
Regardless of the estates owned by full right (hereditary, or by the local name “eternal”), in Poland and Lithuania they were formed until recently, i.e. before 1775, various types of dependent and temporary tenure. The Polish kings did not stop distributing crown and state estates into fief ownership; many positions were assigned special estates assigned to support dignitaries, rulers and officials (Starostinsky, economic, dining estates). After the annexation of the western provinces to Russia, the Russian government, for its part, continued to distribute land to various persons for service, from Starostin and state estates, or into full ownership, or also into lifelong and fixed-term possession (cf. Criminal Code 1777, Dec. 22).
In the Novorossiysk region, land ownership was formed at a later time through colonization.
“The Novorossiysk provinces,” said the decree of April 7, 1802, “do not have scribal measures and boundaries, which were in the internal provinces, and the settlements and land holdings themselves did not have their original foundation and the creation of dachas from ancient times, as in the internal provinces, where many dachas, due to extreme antiquity and the obscurity of the works of their boundaries, and the measure is unknown, but on the contrary, in the Novorossiysk province the settlement was started by different by foreign deduced peoples since 1752; to the landowners (except for a small number of those to whom the lands were granted by personal decree and who were acquired from the ancient inhabitants by purchase and other legal means), the distribution of lands for settlement began most in 1764 on the basis of the Highest confirmed plan and the rescript of 1792 to Kakhovsky: the distribution of lands distributed to state-owned settlements and owners was made according to plans with the designation of boundaries on the plans; and the landowners were obliged to pay land money for the distributed lands after preferential years, and by decree of 1800 they were ordered to leave those lands for them, even if they were not inhabited, as long as they paid that money.”
The first landowners in the Novorossiysk region were newcomers, and primarily Serbian immigrants from the Danube, accepted into the Russian service as officer ranks. This nobility was joined by Russian bureaucrats, mainly military. As a result of the war with Turkey, entire armies passed through the steppes, and often captive residents of various tribes were taken out of Turkey and settled here to live. The government, wanting to populate the steppe as quickly as possible, distributed land to the nobles, with the obligation to populate them. The Black Sea Fleet attracted a significant part of the Greeks to this region; After acquiring the Ochakovo region, the government, to populate it, called boyars from Moldova, to whom it distributed land in huge dachas, up to 25,000 dessiatines, if only they would undertake to populate them. People who had not received permission from the government often took land without permission and populated it with people who were brought from other regions.
When the distribution of land ceased, new families from the north and southwest, from the northern regions, began to mix with the local nobility, from the cantonment of a significant number of troops in the province and the establishment of local governments. Thus, new newcomers from military and civil officials, through family ties and as a result of the acquisition of land, became part of the local nobility (see Description of the Kherson province. Schmidt, St. Petersburg, 1863, part I, p. 551).
The Tauride Peninsula has its own special history of land ownership. According to historical studies about the Crimean Tatars (see article by Hartakhaya in the Bulletin of Europe in 1866), land ownership among them was the inalienable right of the heads of the clan (Crimean beys), who, being in official dependence on the khan, nevertheless owned the land from ancient times on the right of ownership, although their ownership was based on the khan’s labels. According to the author of the mentioned article, the system of land tenure in Crimea was feudal, similar to the European one, with the difference that the Tatar feudal lords, due to the absence of political struggle between the ruling classes in Crimea and the supreme power, retained their full power and importance until the fall of the Crimean kingdom. During the annexation of Crimea to Russia, the large landowners were subordinate to many small ones, who, with the permission of the supreme owner, occupied plots of land in his appanage or beilyk under certain conditions for permanent use (Chapra and Khurulu), receiving from the supreme owners labels in confirmation of the right.
To determine the rights to land ownership in Crimea, rules were published in 1802 for the leadership of the commission on the analysis of disputes over lands on the Tauride Peninsula. All lands of private ownership are divided by this decree into 4 clans: the khan's lands, which were in the hereditary possession of the Tatars who lived on these lands; the Murzins, who were the property of the Murzas and were in the use of the peasants; plots, gardens and lands owned by peasants on the right of ownership, and empty lands given by the Russian government for private ownership. In 1802, it was decided that all lands, until the time of Russian rule, unconditionally owned by the Tatars and other nations, or acquired thereafter by legal transactions and sales from persons who had the right to sell, were assigned to the acquirers. Not only formal fortifications are accepted as proof of acquisition, but in the absence of written documents from ancient owners, an oath is also taken to confirm, and not to refute, real ownership.
Detailed rules on the proof of patrimonial rights to land in the Crimea were issued under the Highest Decree on April 23, 1804 (N 21275), and it was decided that due to the unknown and intricacy of these rights, the law 10 years ago cannot be extended to land cases subject to analysis by the commission. See also decree of 1806, N 22303. In 1810, the mentioned commission was closed, and in 1818 a special committee was formed to consider complaints from the Tatars and to establish rules on their ownership of lands.
§ 82. Evidence of patrimonial right. Difference between proof and strengthening. Is it possible to establish patrimonial rights by acquisition without strengthening, that is, without a serfdom? The meaning and power of informal acts
Proof of patrimonial right are the so-called fortresses, i.e. acts of strengthening, acts of acquisition of property rights, acts written to lay the foundation for patrimonial right, to confirm the property of the acquirer; This includes exactly those acts that are mentioned in Article 707. Civil Laws (on the procedure for strengthening rights to property). “The strengthening of rights to property is carried out: 1) by serfs, notaries, personal appearances or household acts, 2) by transfer of the property itself or by taking possession of it.” Wed. 400 st. Zach. Sudopr. Citizen
Only acts “legally committed” serve as complete proof, i.e. not only legal in essence, but also committed in compliance with all forms and rituals established by the nature of each act. Few acts would turn out to be fully consistent with all the requirements of the law, when in any case they should be subjected to strict analysis: many transfers of ownership have been and are being carried out in our country informally, incorrectly or simply unannounced; on the other hand, in our laws there are no firm and positive instructions at all on the action with which the legal concept of the transfer or acquisition of patrimonial rights is connected. Therefore, litigation about patrimonial right in many cases would be extremely difficult for us to resolve, if the strengthening property of ownership and the beneficial rule about the power of prescription did not help eliminate claims and disputes over ownership that has long continued in the form of property, even if strengthened illegally or incorrectly.
In the past, many categories of people were completely deprived of the right to land ownership, or were limited in the right to alienate their land outside their class or society, or, occupying state-owned land, were deprived of the right to alienate and transfer it. Violations of these restrictive rules were numerous, and many persons who acquired land through illegal transfers, the transfer of which was legally impossible, could assert their acquired right only due to the prescription of possession. The question of the informality of acquisition acts has long confused our judicial practice: in many cases, no matter how indisputable the agreement of the parties participating in the transfer and acquisition transaction seemed, the court stopped at the question: should the acquisition be recognized as completed?
There have been no solid grounds for resolving this issue in our civil laws since the old order of patrimonial note, certificate and refusal was destroyed; for in the new form of execution of acts established by Peter, almost all the legal significance of the previous certificate was lost, and special importance was attached to the observance of official interest, the formality of the act and the collection of duties. Our judicial practice was usually confused on this subject until the law of 1858 defined the legal meaning of informal acts.
Some inaccuracy in the use of the word evidence gave rise to misunderstandings about the power and significance of patrimonial documents in court. To clarify the concepts, it is necessary to distinguish between proof and strengthening, proof of patrimonial right from strengthening the rights of patrimonial rights. Anything without exception that can serve as a sign of an event or action of legal significance can be accepted as evidence in court; There is no event that could not serve as a preceding link in the judge’s conclusion, could not serve as one of the data on the basis of which the mind draws a conclusion about the legal significance of events. Thus, in a patrimonial matter, as in any other, written documents, all kinds of material monuments can serve as evidence of personal will, intention or calling, evidence of a previous acquisition or transfer, the existence of one or another state (for example, possession, the property and limits of ownership, etc.). In addition, the testimony of witnesses can also serve.
Based on this evidence of a private event, the court can draw its own assumptions and conclusions in order to come to the final conclusion that at this moment of the dispute should be recognized as a right beyond doubt, and on whose side the exclusive patrimonial right should be recognized. (In this sense, Cass. decision 1879, N 245.) But not everything that serves as evidence in this general sense can be recognized in the special sense of strengthening, i.e. in the sense of an act directly certifying the acquisition of patrimonial rights; for the direct acquisition of property rights, i.e. a right that has unconditional force with respect to all unauthorized persons (except for the transferor and the acquirer), is certified in a certain strict form and requires formal proof.
For example, in a dispute between a seller and a buyer, if the buyer has taken possession of the acquired property, the transfer of rights is certified by a simple informal, if only undoubted, letter, from which it is clear that one decisively sold and took the money, and the other accepted the property: in this case, to fully corroborate the act, only bringing it into shape and fiscal clearing with duties is required. But in a dispute between such an acquirer and a third party who received a formal bill of sale for the same property from the same seller, a simple letter must unconditionally yield to the formal bill of sale, and the patrimonial right belongs to the one who secured it for himself.
In this sense, our law determines which acts should be considered acts of strengthening, affirming patrimonial right (Law. Judicial Civil., Art. 400, Law. Civil., Art. 707). These are acts of inheritance, wills, deeds of sale, data, etc., in a word, acts that formally certify the direct transfer or transfer of patrimonial rights from person to person. This also includes ownership records of land in settlements. Cass. decide 1875, N 684.
The transfer of ownership of real estate is permitted only through acts of serfdom. However, under serfdom, the law allowed the release of serfs to freedom, with land, on vacation pay, which could be made in person. In this case, the vacation pay issued under the previous laws (IX Vol. Ed. 1857, Art. 1150 – 1155, 1174) can be accepted as proof of patrimonial right to the land, instead of strengthening. This is also the reasoning of the Senate in Cass. decide 1869, N 850.
On August 11, 1858, the Highest approved opinion of the State Council was published on the question: how to deal with real estate that is owned by illegal acts or without any acts. A similar question regarding real estate located in cities was raised back in 1817 by the Minister of Finance in the interests of the treasury, regarding reports from civil governors that in cities the established rules for the sale of houses and real estate were not always observed, and that some of the purchasers of such property owned them without serfdom and duty-free. As a result, according to the proposal of the minister, the Senate, by decree of November 30, 1817, ordered that all city owners be obliged to subscribe, so that those who own without deeds would complete deeds with the payment of duties within six months of the announcement, and for failure to do so, they should be brought to trial and subjected to the punishment prescribed for concealing government interests; for the future, the police will be instructed to ensure that no one is allowed to take possession without the proper certificate.
In fulfilling this order, difficulties were encountered, of course, due to the brevity of the appointed period and the long-rooted habit of evading compliance with the form, when even without this observance it was possible to acquire property and own it. Therefore, in 1828, the opinion of the State Council, approved on May 13, established new rules on the same subject. Owners who did not have legal acts were assigned a period of three years from the publication of the new regulation to complete them; and for those absent on duty and abroad - a four-year term.
Serf duties not paid by the owners on January 1, 1825 were no longer subject to collection, by virtue of the most merciful manifesto issued in 1826; but from all those who acquired real estate in the cities after this period, without deeds and duty-free, they were ordered to collect the duties twice, and the deposited money three times, if even after the appointed three-year period it turns out that they did not clothe their ownership with the proper formality; however, a general search for such owners was not ordered. Despite the fact that violations of the law continued, especially since the confirmations intended to stop this violation did not mention the property located in the county and not in the city. Meanwhile, in 1855 and 1856, the most merciful manifestos followed, by which such violations, which remained silent, were forgiven. The law issued in 1858, extending for the first time the decree of 1828 to county property, allows for some changes in the manner of its execution.
Owners who have not yet converted their documents into the proper serfdom deeds with the payment of duties are again assigned a three-year period for this, under fear of the prescribed penalty. Persons who began after January 1, 1825 and continue to own real estate without any documents, under only verbal contracts and transfers, are obliged at the same time to declare to the proper public office, in good faith, the value of those properties at the time of acquisition: having paid serf duties on this price, they receive from the public office certificates on the appropriate stamp paper. For failure to comply with this, it is indicated that they will be subject to the prescribed fine. The new rules do not repeal, however, the effect of the law, issued in 1854, on estates owned by sale records before the deed of sale.
Such possession was declared illegal if it lasts more than a year; the sales records must be destroyed, and the estate taken into custody until settlement between the seller and the buyer, who are both subject to the collection of serf duties in the form of a fine.
Informal acts still serve as a source of bewilderment for many in our judicial practice. Many doubt whether it is possible, under the effect of the above-mentioned Article 707, to recognize patrimonial right in a fortress for a person who could not justify it by the correct act of strengthening. This question is often posed in an absolute sense, which it cannot have. Our law does not at all express an unconditional requirement of fortress from every owner, with the fact that whoever does not have a fortress cannot be an owner. This would also be inconsistent with justice: whoever has proven his patrimonial right should have it recognized in all its firmness, and not only a fortress, perfect in form, can serve as proof. In addition to the litigation between the parties, the government, in the name of the state principle, does not audit the fortresses of private ownership: where the informality of the act violates the official interest, only missing or additional duties are collected, sometimes with a fine, but the patrimonial right is not destroyed.
So, the question of the informality of the act - in the sense of proof of patrimonial right - can only arise in litigation between the parties. In this case, the court must decide on whose side the advantage is, which side has acquired a legal, exclusive right. If the basis for the acquisition appears to be a free transaction between the two parties, if the firmness and legality of this transaction is not subject to doubt, and the dispute occurs between the parties participating in this transaction or their successors, in this case, the absence of a formal document is important only insofar as the transfer of property has not yet taken place on the basis of a transaction that is not put into a strict form, for only with this transition is the acquisition of patrimonial rights accomplished. Therefore, in cases of this kind, the essential question is not whether there is a legal act of strengthening, but whether the patrimonial right has passed from one party to the other by an act of private will.
If the acquisition has been completed, then the patrimonial right has come into force and must only be brought into legal form; if it has not been accomplished, then the patrimonial right may still return to the transferor or his successors, at their request. The difficulty we have in matters of this kind is that our laws do not provide a fairly accurate and clear indication of the moment at which the transfer of patrimonial rights takes place. There is no difficulty in resolving the case when, for example, the acquirer of an estate in a transaction with a deceased patrimonial owner, having neither a serfdom nor possession, demands this estate from his transferor or his successor; or, for example, when the acquirer of an estate without a serfdom deed in a transaction with a transferor meets with a serfdom deed, which the same transferor issued for the same estate to a third party. Here, in any case, the plaintiff’s patrimonial claim does not have a solid basis; it must yield to the correct serfdom patrimonial right and be limited to the limits of the claim for damage from violation of the transaction.
But doubt arises in those cases when the acquirer of an estate under a transaction is at the same time the owner of it, but has not yet had time to consolidate his possession by prescription and cannot justify it by a correct act of strengthening, and meanwhile, by virtue of the previous patrimonial right, the transferor himself or his successors make a claim on this estate. Only possession by sales record, without a bill of sale, is expressly invalidated by our law; in other cases of this kind one has to look in vain for general guiding principles for a solution in our law; and prudent practice usually tends in such cases to maintain the force of the contract where there is no doubt that the will to transfer the estate has been finally expressed and carried out.
In such cases, when there is no positive guiding rule in the law, and yet a legal question arises in practice that cannot be circumvented or resolved arbitrarily, in such cases the need for a science is felt most clearly, which throws light on all the dark places and, by generalizing the phenomenon, helps to collect explanations of the properties of a common principle. Practice, without the help of science, is ready in such cases to grab hold of the nearest external rule, the letter or form of the law, just to find a way out of the difficulty, but reason and a sense of justice, which requires a reasonable basis, cannot be satisfied with such an outcome. In the above-mentioned difficulty, science points to turning to general principles that were developed in Roman law and adopted in the latest legislation.
From these principles the following rule follows: property is considered acquired between private individuals, from the time of actual transfer, according to any acts of re-registration, except for purchase and sale; but according to the deed of sale, the property is considered acquired for the buyer in such a case when not only the transfer has taken place, but also the seller has been satisfied by payment or in another way. I have no doubt that in our practice the same rule should serve as a guiding principle in cases where the question of the transfer and acquisition of property rights between the parties involved in the transaction or their successors arises.
Wed. 456–462 art. New Est. Sudopr. Citizen about the strength of written evidence.
See the Cass decision on a similar issue. Senate Dt. 1868, N 472. In the above case, the seller undertook to give the buyer the title to the property, but has not yet transferred the property itself. To Cass. decide 1871, No. 546, it is expressed that the recognition of the enemy’s patrimonial rights to real estate, declared out of court in a letter, cannot in itself serve as legal evidence of patrimonial right and refute the force of serfdom, according to which the estate is registered in the name of another person (Constitution, Art. 479, Part I, X Vol. 420, 699, 708, Appendix I, Art. 18). In this case, the estate was listed as the exclusive property of one brother according to serfdom deeds, and the other brother, refuting those deeds, proved his rights to this property with household deeds, in which the enemy recognized the acquisition of this estate with common funds and the common use of income.
1872, N 1089. Issued by virtue of note. to 396 art. Est. o Poshl. (ed. 1857) the certificate of the District Court on the payment of serf duties for land does not have the force of an act of strengthening, but can serve as evidence of ownership based on possession (during prescription). These certificates were issued at the unilateral requests of the owners of the estates.
§ 83. Historical significance of scribal books. Scribe books as evidence in land survey cases. Relation of boundary evidence to patrimonial evidence. Can boundary acts serve to prejudice patrimonial rights? The importance of boundary plans in controversial patrimonial matters. The relationship between patrimonial law and boundary law
Of particular importance for us is the question of the meaning and power of the acts of old time: which of them should be considered acts of acquisition, fortresses, and which should not be given this significance. This question became especially important at the beginning of the general survey, when it was necessary to determine the boundaries of the district dacha and the amount of ownership of the participants in it by fortress. Where there was no undisputed possession, it was necessary to demand from the owners of the fortress to determine the dacha, i.e. area, which belonged to a separate name of the dacha. For this purpose, in those areas where scribal measurement and description of lands took place in former times, scribal books were adopted as the initial and most reliable method for determining the dacha.
Acts of this kind corresponded perfectly to the matter of land surveying: land surveying was not aimed at examining the patrimonial rights of each owner and therefore did not concern verification of the grounds for acquisition; The fortress was needed for land surveying only to the extent that it provided solid data for calculating the quantity and for determining the location of the property, and the person who should be designated as the owner in the land survey acts. Scribe books are not fortresses: they did not acquire or establish rights. These were acts of economic and financial description of the lands belonging to all dachas of the district and camp, with the designation of tracts, lands, settlements and other economic accessories of each property.
Therefore, the scribe book served only as a legal certificate of ownership found by the scribe in one area or another, but not as a certificate of right, which might not be firm at all, and in any case was based on fortresses, regardless of the scribe book; only from the scribe book could the surveyor most conveniently determine the real dacha (although, however, the land surveying law, allowing for the possibility of errors on the part of the scribes and preferring undisputed ownership to everything, did not attach unconditional significance to the scribe books, and the data taken from the scribe books had to yield to the consent of the undisputed owners and living tracts designated in the fortresses).
The compilation of scribe books dates back to three main eras: the end of the 15th and beginning of the 16th centuries - the era of acquisitions and conquests of Ivan the Terrible; to the first half of the 16th century, when the state was being restored after the Moscow and All-Russian devastation; and by the end of the 17th century, when the description of lands began to be carried out in a general system, by sending general scribes, and according to the rules of newly issued scribe orders.
The scribe books were supposed to include a complete economic description of all the components of the city and county. Everywhere the scribe was obliged to note what kind of property someone owned, on what right, i.e. on your own or on a government one. Signifying the participation of everyone in taxes and duties, the scribe divided the inhabitants into plows, according to income and trades; State quitrent articles, which were not given to anyone, were given as quitrent with detailed notes about this in the book. The description was also accompanied by verification of testimony given by local residents against ownership documents and previous scribe books.
In each camp, volost and churchyard, the scribe books list by name all those who own the land, name the villages, hamlets, settlements, settlements, settlements, wastelands, etc. listed under each, with an explanation of what acts and how much land someone owns, and when describing the lands granted to the patrimony, with an indication of for what merits what granted. Particularly significant were the older lands, i.e. not belonging to anyone and not given to the dacha, and written out, i.e. returned to the treasury from private ownership. The earth is divided, according to quality, into good, average and bad; In addition to arable land, there are also hay fields, forest lands, estate and pasture land. For each person or department, as well as in each camp, volost and churchyard, and sometimes in the whole county, the total of the land in possession, both income-generating (in the living) and lying in vain, is given, with the meaning: from what exact amount of land, howls, quarters, etc. ancient dimensions, taxes must be paid.
In addition to the land, all peasant and peasant households are listed, church buildings with utensils and the clergy's yards are described; also monasteries, deserts, churchyards; various lands are calculated, such as: fishing rivers and lakes, beaver runs, animal catches, livestock grooming, with the meaning of the quitrent paid for each article.
In addition to the actual scribal books, the following were also kept:
Lookouts and dispatchers. They contain additions and corrections that were made following the previous inventory, and as necessary, to bring awareness of those changes that could occur over time in one or another area, in ownership rights, as well as in the composition and distribution of property. To compile these books, watchmen and scribes were sent.
Construction and abatis books were compiled following the construction or founding of a new city, fort or fence in wild fields, on the outskirts of the state; they described in detail both the erected buildings and fortifications, and the distribution of lands to the newly settled service people.
Census books, in which all the people who made up the tax and tax-paying class in the described area were counted, indicating the age of each.
Boundary books, in which the boundaries of land holdings were especially described, sometimes with measurements of the lands or borders themselves: in this case, the books were called measured. They were composed of land surveyors and measurers. In some cases, the measurement between the boundaries was combined with a description of the lands, and the book was called a scribe's book and a boundary book.
The books of scribes and other names that have survived to this day relate to more than two hundred cities with counties and are stored in the Moscow archive of the Ministry of Justice, from where certificates or extracts from those books are issued to those who wish, as proof of patrimonial rights (for a description and list of scribe books, see the description of documents of the Moscow Architectural Min. of Justice. St. Petersburg, 1869).
Scribe books were, so to speak, a common act of the whole dacha; but the owners listed in the scribe book were not contemporary with the general survey; during this era, the possession of the previous owners, through hereditary transfers and other transfers, either intact or fragmented, passed to other persons who had to present their fortresses - old and new, on which they based their right to own a certain amount, or in a certain area; such as: letters of grant, legal, obedient, import, extracts from sentinel, separate, refusal books, court decisions, bills of sale, mortgages and other acts of private acquisition, with or without a certificate and refusal. Moreover, each of the bearers had the goal not to justify his patrimonial right, but to certify the extent of his legal ownership in the dacha, the right to be listed as a participant in it to a certain extent, since this was required for the purpose of land surveying.
During the land survey, he could be recognized as the owner to the extent of all his fortresses: and regardless of the land survey, his patrimonial right, based on these fortresses, could then be rejected by the verdict of the patrimonial court, and ownership in this case could turn, along with the right, to another person whom the court recognizes as a patrimonial owner. On the other hand, his fortresses or other links could have been completely rejected during the land survey; he could have been completely excluded from the ownership by a land survey act, or his possession could have been cut off against the fortresses; but regardless of the land survey, such an owner could then prove, using the same fortresses, his patrimonial right, and then was subject to inclusion in the number of owners on the plan. This is how boundary law differed from patrimonial law.
Legal fortresses were accepted as evidence during land surveying and regardless of the scribe books, unless the bearer referred to the scribe books; but if, referring to the possession of his predecessor according to the scribe books, he demanded for this possession more than the amount that was indicated in his fortresses, in this case he had to present arguments from the original dachas listed in the scribe books, that is, prove by the fortresses that those lands in the quantity that he exhibits actually came to him from the original dachas directly or by successive transfers.
Thus, the scribal books, constituting the primary evidence of ownership for the purposes of land surveying, should have, upon completion of it, lost their force as proof of ownership: with the completion of land surveying, the final acts of ownership in the dacha became the land survey plan and the land survey book, and the law assigned exclusive significance to these acts. This is where the rule of land survey laws came from (704, 705 art.): “scribal books are accepted as evidence: 1) in disputes about the lands of those provinces in which there was no general land survey; 2) in disputes over lands in provinces demarcated between owners, whose villages and lands were surrounded by one circumferential boundary during the general survey, without special delimitation. On the contrary, in the provinces, disputes between demarcated lands should not be separated or resolved by any previous dachas, scribal books and all sorts of them, but they should be examined and resolved solely according to the issued plans and boundary books.” Such plans and books must, by law (724 Art. Int.
Zak.) to serve for the future as “an undoubted and unshakable proof of ownership of all those lands, all sorts of tracts and lands to which the village or wasteland is adjacent, and henceforth all disputes about those lands will be sorted out and resolved only by the plans and boundary books issued to their owners.” This article, which has often been reinterpreted in our country due to a misunderstanding, gives plans and boundary books unconditional force only in the sense of proving boundary law, in disputes about boundaries: the plan proves ownership of all lands belonging to a village or wasteland, and not to the name of one or another owner. The latter is already a patrimonial right of ownership, which requires patrimonial evidence: and therefore a boundary act or a boundary decision, in which it was positively forbidden to touch upon the analysis of patrimonial rights to land, obviously cannot serve to prejudice patrimonial rights, nor to refute patrimonial evidence: to admit the opposite would mean to confuse completely heterogeneous concepts into one.
Therefore, boundary plans and books do not have the power to create or approve a patrimonial right for the owner named in them, when his patrimonial acts do not confirm this right; On the contrary, they cannot prevent the recognition of his patrimonial rights, even if his ownership was not recognized on the plan. The first case is mentioned in Art. 725. Megève. Law. When, during a general survey, on the basis of survey evidence and conclusions, an entire dacha is demarcated into one possession, and subsequently, in a dispute about the patrimonial rights of the person to whom the possession is assigned, it turns out that his fortresses are invalid, then the plan does not serve as an obstacle to the alienation of the entire dacha from him. This law literally mentions the whole dacha, of course, only because the 6th article of Chapter IX of the Land Survey Instruction (from which the rule of the Code of Laws is extracted) foresaw doubt about the whole dacha adjacent to one person: practice could still go astray at this point; with the unity of the whole dacha with the patrimonial owner, doubt could arise.
But doubt was not expected on the question: can the designation of a person among the joint owners of a dacha on the general survey plan be considered evidence of that person’s patrimonial rights to the land, the ownership of which is shown to him? Obviously, the answer can only be negative, based on the same principle.
The application of the same principle also resolves the opposite case, regarding the question: can the failure to designate a person as the owner on the general land survey plan prejudice patrimonial rights? This question, however, remains confusing to this day for our judicial practice, especially in cases between the treasury or rural societies and private owners regarding disputed lands or the separation of lands in a common dacha. The Ministry of State Property very often based its objections to the patrimonial rights of private owners on the argument that the owners were not shown on the plan, and, unfortunately, the courts often agreed with this reasoning. Meanwhile, this question has long ago received a positive clarification in the sense that failure to name on the plan should in no way serve as a prejudice or deprivation of patrimonial rights.
This clarification took place on this occasion: the Minister of Finance in 1820 gave an order to all state chambers to consider only those single-lords and state-owned villagers as private owners of lands in fortresses, which during land surveying were named in plans and books as special owners from society within the district dacha. Guided by this instruction, the Penza Treasury Chamber suggested in a similar case: the lands of personal ownership in the village of Lamber, despite the decision of the district court, which awarded them to private ownership, to be turned into an allotment to state peasants; but the Senate destroyed her order and ordered the civil chamber to revise the case due to doubts encountered by the treasury chamber. Then, at the general meeting of the Senate, the question of the proposal of the Minister of Finance on the same subject was considered. The Minister of Finance justified his order, arguing that according to the force of clause 1 of Chapter XXXIII. Inter. Instr.
plans and boundary books should serve as a solid basis for the resolution of all disputes after land surveying, and all former fortresses should already be considered abandoned, except for those persons who are named on the plan inside the dacha and in whom, during internal delimitation, it was ordered to be sorted by fortresses, and therefore the Minister of Finance believed that at least before land surveying the land was written according to scribe books or fortresses personally in the name of single-lords or state-owned villagers; but if during the land survey they were demarcated into a common district and there were no complaints about the land survey, so that the survey turned into a fortification, then all such lands should be considered public according to this new fortification.
Although the decree of September 24, 1798, destroying all the affairs of the same-palaces among themselves, orders them to remain in the possession that they had before the land survey or before the start of the litigation, but, in the opinion of the Minister of Finance, this applies only to those who continued boundary disputes and had an appeal, and even those single-palaces who are named on the plans as special owners should remain only in the possession that was before 1765, because all sales after boundary instructions are destroyed; So, if private villagers bought public lands after 1765, then they should remain among the public ones.
But the Senate refuted this speculation. He found that “the boundaries of general surveying are established in relation to villages and wastelands, and not to the persons of the owners. This demarcation is not delivered to the internal owners of the fortress, but is ordered to separate them in case of disputes over the fortresses, and if the fortresses are invalid, then the person whose village is demarcated should not be placed in the fortress. During general land surveying, land surveyors are not given the right to examine fortresses, which are given in person and which are public, and for unquestionably interspersed dachas and fortresses they are not ordered to demand; It was not ordered to take away ancestral and purchased lands from single-yard owners, but sales and exchanges of them before 1766, only those made to landowners, were destroyed; those not named on the plans are not deprived of their part, and when calculating the souls, such serf parts are ordered to be left to those to whom they belong.”
Therefore, the Senate recognized that the actual ownership of such lands, which belong to the fortresses, but are demarcated in a common district, is more preferable than the mere failure to designate them on the plan as special owners, and should not deprive the single-lords of this property and turn it into a division as public land, before considering serfdom in their proper manner. Due to the disagreement of this conclusion with the opinion of the Minister of Finance and the Minister of Justice, the matter came to the State Council, and its Highest approved opinion was to approve the conclusion of the Senate and cancel the circular order of the Minister of Finance. See Mn. State owls December 1, 1828 (Full. Collected Laws, N 2474).
In high approved pl. State Council of 1854, for the village of Rybnaya, expressed that the plan (of the city of Pereslavl), meaning only the layout and circumference thereof, does not violate the property rights of everyone.
The above decree remains and is still in full force as it was. New confusion about it may arise in connection with cases carried out according to the rules of 1850 on the forced special delimitation of dachas in common ownership. These rules stipulate (944, 950 Art. Inter. Law, ed. 1893) that fortresses from owners not shown on the general survey plan are not accepted for court consideration and are not accepted as evidence. But this provision should in no way serve to prejudice the patrimonial right of owners, even if they are not shown on the plan. A new procedure for compulsory special delimitation has been established for dachas that are exclusively in private ownership, and for dachas in common ownership of private individuals with treasury and appanage (496 et seq. Art. Zak. Court. Civil.) - cases that were previously carried out by the controversial patrimonial judicial procedure.
Previously, in cases of this kind, questions of the division of ownership, together with questions of the patrimonial right of the owners, were discussed by courts of a general order, and decisions in these cases were considered final regarding patrimonial rights, since these rights were subject to a dispute between the joint owners and the treasury. Therefore, in matters of this kind it would be impossible to justify the above-mentioned assumption about the patrimonial power of plans and boundary acts. The current cases of special delimitation are aimed exclusively at separating the participants in the district dacha to one place of common ownership, and at distributing land and household supplies between the participants. The law (Article 945 of the Law of Int.) states that when considering what is presented from the owners of fortresses, the courts are limited to only analyzing and resolving mutual claims and disputes presented by them during special land surveying, and determining their own rights and the degree of participation of each of them in the common dacha.
As for disputes between the owners of the demarcated common dacha, or with outsiders, about patrimonial or inheritance rights, such disputes, without stopping in any case the demarcation of the common dacha, are resolved separately from it by the same district court, on the basis of general civil laws. Consequently, even if it happened that one or another owner, himself or in the degree of his predecessor, not shown on the general survey plan, was excluded on this basis from among the owners of the dacha during its amicable delimitation, his patrimonial right is not suppressed, and the boundary decision cannot have legal decisive force in relation to his patrimonial right; so that he can still - and the law does not prevent him - from proving by patrimonial order his right of ownership in the dacha by fortress and, having proved this right, he can exercise it by actual possession. Wed. Cass. decide 1879, N 313.
The question of what is a boundary matter and what is a patrimonial matter has always seemed confusing for our judicial practice, and to this day it still seems unclear to many. Therefore, in practice there were many cases that called for clarification of this difference in Senate decisions; but all such explanations have a casuistic form, which is why they often confused practitioners even more, whose general concepts about this subject were unclear. The confusion of concepts about this subject in practice further intensified with the publication of a code of land survey laws, in which the arrangement of articles of land survey instructions was completely changed according to the system adopted by the editors, and some of them were completely excluded, others were placed in other parts of the code; so the general idea, expressed in the manifesto of September 19, 1765 and in the boundary instructions, was broken and confused in individual articles of boundary laws, which practice then became accustomed to finding and using mechanically.
After the publication of the code, the boundary instructions fell into oblivion, and yet the study of it itself in its original form is necessary for anyone who wants to understand the spirit of boundary laws.
The main motive on which the idea of land surveying is based, in comparison with patrimonial rights, is that “state land surveying assigns lands to villages, and not villages to owners.” Meanwhile, patrimonial right is the right of a known person to land; it is the ownership of land in the name of a known owner. The survey refers exclusively to the dacha with her name; patrimonial right refers to the owner with his land. However, patrimonial right to land is not an immeasurable right; the patrimonial owner’s consciousness of his ownership must be definitive, extending to an object that must be isolated, form a separate inheritance of the owner among other possessions: on the other hand, the area of the dacha, determined by land surveying, constitutes the possession of a known person or is composed of different possessions, one adjacent to the other. This is the source of difficulty when delimiting the area of boundary law from the area of patrimonial law.
Both, i.e. the basis and title of ownership, and the territorial border of it, seems inseparable in such a state of life when dachas and plots of ownership are once already limited: then, once the area of an individual dacha has already been determined, during the transitions and fragmentation of its ownership, the closing and opening of boundaries and the division of plots do not present significant difficulties and constitute an exclusively technical matter. This is not the state of our life in the era of general land surveying, when it is still necessary to draw a circumferential line around each individual dacha: for this, it is necessary for the first time to make known only the state of ownership; but when in the same place several persons show their ownership, it becomes necessary to sort them out: then each person must show on what he bases it - not his patrimonial right, from which ownership is supposed to flow, but his claim to be considered the owner in a certain area.
One can say: I own because I always owned like that, the other - because I owned until my possessions were seized; third - because my fortress indicates my possession here, etc. In all such claims during land surveying, the matter does not yet concern the question: is the owner really the legal owner of the dacha he owns, whether his serfdom deeds are correct, or whether the property came to him correctly. It is only necessary to figure out which tracts are made up of and by what features the area of the dacha is determined, and who the survey found in it as the owners, and how much was found in whose possession or how much should be recorded on the basis of those rules that are established by the general law of state surveying in case of uncertainty, doubt or dispute about actual ownership. It is only these issues that state surveying seeks to resolve. It resolves disputes about mine and yours in only one sense: where mine and yours lie this time; but does not resolve the issue of mine and yours in the sense of civil law, i.e.
what should rightfully be mine as my own, and what is yours, what is mine, what is your patrimony. “Landing,” said the decree of October 28, 1780, “does not cancel or approve dachas, but only determines the number of lands in villages and notifies dachas.” It is true that the boundary instruction, as shown above, in many respects served to define, to strengthen or create patrimonial rights where previously the right was not at all recognized by the state or was not yet expressed from simple, unconscious ownership: for example, the boundary instruction determines the right to land of various categories of service people, single-lords, state peasants, and in certain conditions gives the meaning and form of the right to the ownership of people who have settled without permission on someone else's and state-owned land.
But these were isolated cases, so to speak, of the state determination of property rights on possessions that directly related to state interest: and here land surveying did not sort out disputes, but only recorded the lands for those to whom they followed, according to the new rules, on certain rights, and this note in this case served as a kind of strengthening, given directly from the state power. And where it was a question of a clash of possessions that were established on their own private right, formed before land surveying, there the land surveying could absolutely neither discuss the previously former patrimonial right, nor legally create a new, non-existent right.
Cass. decide 1877, No. 367. The law establishes a special procedure for the production of cases of violation of inter-general land surveying; in such cases, only the plans and books issued by the boundary governments have evidentiary force (4 paragraphs 29 of Art., 11 Art. appendix to 202 Art. of the Establishment of the Gr. Court. on Prod. 1869). But this special procedure is not applicable to disputes not about the boundaries of estates, but about the right of the owner of one of the neighboring estates to a certain part of another; since such a dispute cannot be resolved by establishing the boundaries that, according to boundary acts, should separate neighboring estates, then when resolving it, the court must be guided by the general laws on the restoration of property rights and possession, and not by the rules on the conduct of boundary cases.
§ 84. The significance of scribe books and land survey acts in cases of compulsory special land survey and their relation to patrimonial evidence. Can the question of ownership within a common dacha, resolved according to boundary rules, serve to prejudice patrimonial rights? Cases in which arguments from original authors are required. The value of scribal books as evidence in litigation patrimonial cases
So, at the present time, with the exception of dachas in which general land surveying has not yet taken place, scribe books are accepted as evidence for the internal delimitation of a dacha between partners (944 art. Inter. Law, ed. 1893). But this applies only to dachas, which, during the general survey, were demarcated into common ownership, remaining internally not demarcated; If, during the general survey, the dacha was demarcated into a single possession, which was subsequently fragmented, then its distribution is carried out according to fortresses and according to prescription.
In matters of this kind, the treasury very often participates together with private owners, and from this comes the special property of such matters and the special significance attached to the scribe books in them. The treasury - as a representative of the state - appears in these matters, precisely where ownership comes from the scribe's dacha, as the original and, so to speak, main owner of all the lands belonging to the dacha, seeking for itself and for allotment to the peasants sitting on state land, the greater the amount of land, the less it will be necessary for the fortress of private owners; for upon presentation and dismantling of the fortresses, when the fortress dacha is determined, the rest of the amount of land will turn out to be approximate and should be distributed among the partners according to the proportion of the fortress dacha. Thus, all the documentary material from which patrimonial rights and possessions in the dacha are made up is presented in cases of this kind, so to speak, on two levels. In the background or main ground is a scribe's dacha, i.e.
the official designation of all private properties and owners found in the dacha during the compilation of the scribe book. Here we usually mean: 1) private owners, by patrimonial or local right - predecessors, from whom, in one way or another, in one piece or in fragmentation, ownership came to the present owners; 2) service people of various ranks of the previous time, who were allotted, according to their salary, collectively, land for the performance of their service: these are the ancestors of the current state peasants or single-yard owners, for whom this land retains the significance of state-owned public land. In the background or foreground are represented: 1) the cash possession of each of the accomplices, which ended up in the dacha; 2) fortresses and other evidence of modern times with which existing owners justify their possession; 3) local dacha of one-palace dwellers; finally, 4) if single-yarders settled in the dacha, then their ancestors could have had special lands that belonged to them in patrimonial right, which they could transfer on the same right to their heirs-single-yarders, and sell part of it to strangers.
But odnodvortsy could have lands of various properties, with or without the right of free disposal, and under the pretext of patrimonial rights, odnodvortsy often illegally sold lands that they could not dispose of due to numerous and changeable prohibitory decrees; Therefore, fortresses of this kind, and individual single-yard possessions in general, seem dubious and often require detailed consideration, which is complicated by transfers of ownership from one person to another, the application of prescription to ownership, consideration of many contradictory decrees of old times, etc. In such circumstances, for the treasury as the main owner of the dacha, the obvious interest is to subject to dispute and eliminate as many fortresses in the dacha as possible, because the less serf land there is in private ownership, the more approximate land, according to calculations, will go to the scribe's dacha of a single courtyard, into state ownership.
Cases of this kind were previously carried out, as explained above, according to the judicial-patrimonial order, so that the power of the court decision extended to the patrimonial rights of the accomplices. Nowadays, these cases are carried out using the judicial-landmark procedure, and the judicial-landmark decision does not deprive persons who have been removed from the list of owners or have been cut off from their possession of the legal opportunity to prove their patrimonial right to fortresses separately, using the judicial-landmark procedure. But this does not make it any easier for private owners, because with the removal of fortresses during judicial boundary proceedings, they must lose possession, and with possession, in addition to material benefits, other advantages are associated. In the process of dividing common property, the position of all participants is equalized, for everyone is an owner and enjoys the benefits of ownership; everyone, presenting their supporting documents, has the right to demand the document from everyone; criticizing the titles of his own possession, at the same time subjecting the same criticism to other people's titles, without leaving a calm position, i.e.
from possession; each at one time a plaintiff and a defendant. On the contrary, it is very unprofitable, without having possession, to refute someone else’s possession and prove one’s right against someone else’s possession. Under the terms of joint ownership, it is much easier and more convenient for the actual owner to explain and justify his ownership than for a person who has lost ownership to prove his patrimonial right. In the first state, an incomplete or conditional right can be acquired through possession into an unconditional form. In the latter state, in addition to ownership, it is necessary to immediately deduce and prove unconditional patrimonial right. Meanwhile, according to the new rules of judicial and boundary proceedings, it is absolutely forbidden to accept for consideration by the court such acts that, under the previous procedure, could be considered in a general case on the separation of lands, not separately from ownership, for example, acts in which there will be no clear evidence that they belong to the dacha being surveyed, deeds of sale for estate lands executed after 1765 by single-owners, etc.
I do not intend to touch upon the complex casuistry developed in cases of this kind of practice and related to the analysis of documents of private ownership; but I consider it necessary to dwell on one question that has often aroused confusion in cases of this kind, and, of course, will often be renewed in them - namely, the question of in what cases there is a basis for demanding from private owners of their fortresses the so-called arguments from the original dachas.
In cases of demarcation of common ownership from the treasury, and precisely where there is a scribe's dacha, it often happened that the treasury, having in front of it the fortresses of private individuals, serving as sufficient proof of the legality of their personal ownership and the legality of the acquisition of patrimonial rights in the persons of the owners themselves or their closest predecessors, was not satisfied with these proofs and also demanded that the existing owners justify their patrimonial right in all degrees of transition, to complete their right with fortresses and by measuring to the first summer residents listed in the scribe book, they would prove exactly how ownership came to them from these first summer residents and to what extent, by fortress. Obviously, in only rare cases, the actual owner could satisfy this requirement and collect, using certificates from old fortresses and from the books of the patrimonial department (Moscow archive of the Ministry of Justice), reliable information about the transfers of ownership according to deeds from the first summer resident to the last of his successors.
Moreover, it is known that in the old days, especially with the mixing of the principles of the patrimonial record and with the continuous change of institutions in the first half of the 18th century, transfers of ownership through inheritances, wills, sales and other transactions were very often carried out unannounced, through one silent transfer and possession, and to require documentary verification of all these transfers, despite the fact that they were covered by ancient ownership and indisputability, would mean more In some cases, the land is simply taken away from its rightful owner under illegal pretext. However, the word: “arguments from the original owners” for a long time remained a terrible word for owners, because it happened, unfortunately, that judicial places, yielding to the demands of the treasury and not having a clear consciousness of the cases in which the demand for arguments was allowed, deprived of ownership those who were not able to present arguments. This ignorance stemmed from nothing other than insufficient familiarity with the boundary instructions.
Arguments from original dachas can only take place where there is still a common undivided ownership, originating from one original foundation, from one common source of patrimonial rights. In a dispute between two parties about patrimonial right, and not about the amount of possession, these arguments do not matter: one, at least the closest, immediate act, or two or three, is enough in order to confirm the basis of the acquisition when it is connected with possession that has lasted for a long time. Each party puts forward the basis of its right, which is derived from one indisputable former patrimonial owner, and at this, so to speak, indisputable point, from which the acquisition of both parties is derived, the court will have to compare the title of one party with the title of the other, and recognize one as legal and reject the other. This indisputable field is usually located in the same or in the next generation, therefore the arguments are not long and in rare cases difficult.
It’s a different matter when several properties of different origins converge in a dacha, and the question is not about justifying one’s patrimonial right, i.e. the legality of the acquisition, but about how to justify and withdraw your possession when there is no agreement between the accomplices on this subject. The ownership of each of them, or many, is based on acquisitions of various kinds, from certain persons who were previously the owners of the dacha: these, in turn, acquired their possession from the previous owners, and so on, until the ownership reaches those who first formed or who had patrimonial rights in the dacha recorded by scribal acts. It is obvious that if all the existing owners in this way brought their ownership of the fortresses to the first summer residents, it would clearly become clear what who has the right to own in the fortresses, and how much serf land should be allocated to whom and in proportion to the approximate lands. But the legislator, in the era of the publication of boundary instructions, understood very clearly the impossibility of such a requirement: it would be tantamount to revision and reduction - an idea that the government completely eliminated.
That is why the boundary instructions, when it comes to fortresses, prescribe to take fortresses, even the closest ones, as the basis, as long as the owner bases his demand on fortresses alone and is content with following the fortresses on which his possession is directly based. But when the owner, not being satisfied with what is written in the fortresses, or not having complete fortresses that would justify his entire possession, himself refers to the scribe books and demands for himself more from the scribe books than is written in his fortresses, demands everything that was written from the scribe books for his original predecessor (for example, for his great-grandfather), - in this case, the boundary instruction rightly puts the owner under the obligation to present arguments. He is looking for himself in the scribe's books - let him prove that everything that was then listed as his ancestor came to him intact, without being split up by inheritance into other clans, without being sold, bartered, etc., to outsiders.
Scribe books certify the ownership that existed at the time of their compilation; and because at that time a well-known person had a well-known property, one cannot yet conclude that after a hundred and fifty years the same property in the same form and quantity should belong to another person, an outsider. This is the direct and just reason why, in such cases, boundary instructions require the presentation of arguments; but when the owner is not looking for excess land against the fortresses, then there is no fair basis for the demand for these arguments.
Scribe books can often be found as evidence in litigation between private individuals regarding patrimonial rights; but one should not conclude from this that it is possible in any case to take them into a fortress, instead of fortification. In a patrimonial case, everything can be accepted as evidence, the consideration and recognition of which in one way or another depends on the discretion of the court, and in this general sense, scribal books can serve on a par with sentinel books, construction books, etc. books and other official acts of old times, evidence of one or another circumstance or condition that was noted in those acts.
This is a case in which scribal books constitute the main evidence. In strength 770 art. Forest Est., ed. 1893, the owners whose dacha was assigned the right to enter the state forest were allocated plots of property from this forest in the amount of 20 dessiatines for every hundred quarters of the scribe’s quarter, i.e. arable dacha, to which the right of entry was attached. Therefore, in order to allocate a plot, the owner must certify with scribe books or fortresses the amount of his original quarter dacha. Moreover, if the original dacha is not entirely in the possession of one person, but has been split into plots by further transitions and transfers, then each of the last successors of the property is obliged to explain his possession with arguments from the original dacha owners, i.e. to certify exactly what share of the original quarter dacha of the first dacha owner belongs to him, i.e. at the present owner, in possession by transfer; for only to the extent of this share can he be allocated, within the meaning of the law, a plot of land from the incoming forest. The question about this was raised in the interim. dept.
Senate (1871 and 1872) in the case of the incoming Tsensk forest Tamb. lips In this case, there was a scribe book, according to which generally settled residents of the Tambov district were given the right to enter the Tsensky forest for cutting for mansion buildings, for fuel, etc. The existing owners, based on this general right and having neither evidence about the number of scribe quarters of each property, nor arguments from the original dacha owners, sought that the allocation of plots from the incoming forest be made by them based on the actual ownership, which is listed for each according to plans and boundary books.
Chapter three. On the application of limitation to subjects of boundary and patrimonial law
§ 85. The meaning of undisputed possession during general land surveying. The difference between undisputed possession and prescription. Establishment of zemstvo prescription and its application to boundary matters. Can, and under what conditions, limitation be applied to joint inter-strip ownership on subjects of patrimonial law? Application of statute of limitations to cases of special delimitation
The application of prescription to subjects of land and patrimonial law is also significantly different. The general survey did not concern the analysis of patrimonial rights, and when examining the actual possession found in the dacha and the titles that explain it, the question of whether this or that patrimonial right on which the ownership is based is strong - the question of the foundations of the patrimonial right is not of significant importance for survey purposes. With a definite, urgent prescription of possession is connected the legal assumption that possession is based on the unconditional right of ownership; and for land surveying, only ownership that existed undisputedly before 1765 in a certain area was important, regardless of the period during which such a state lasted and with which the assumption of ownership could be associated: moreover, in 1765, i.e. When publishing the manifesto on land surveying, we had not yet established a general ten-year limitation period for zemstvo. Hence it is clear why the land survey instruction does not mention prescription at all among the land survey evidence.
According to the instructions, boundary evidence could be considered to be generally ancient possession not limited to a certain period of time, if it was indisputable: i.e. such a calm state of possession, to which no one remembered the opposite or which no one refuted. This state, as was shown above, was sometimes preferred even to fortresses, in the sense of boundary proof.
But when the rule about urgent zemstvo limitation appeared in our laws, then, in essence, the application of it to boundary matters did not seem to be a legal possibility. In fact, prescription has acquired a general force for all civil rights in property, at least a general negative force; those. the statute of limitations generally lost the right to claim; on the one hand, on the other hand, the right was acquired to confirm a legally known state of ownership, to repulse from this state any claim in the name of law. In this sense, nothing prevented the application of prescription to land surveying rights, so long as the recognition of ownership in a dacha for land surveying was not confused with the assertion of ownership as a patrimonial right. It is one thing: can a known possession, undisputedly continuing for a long time, serve as a legal basis for recognizing the owner as a participant in the dacha and showing him on the plan; this is a temporary right, a conditional right to be listed as the owner, to participate in the state act of land surveying.
Another thing is whether such ownership can turn into an unconditional patrimonial right through prescription. One question does not depend on the other, and the very name “indisputable” possession has different meanings in land surveying and patrimonial matters. A boundary dispute about ownership may not yet touch upon the foundations of patrimonial right, having a special purpose - to prove that the enemy’s ownership is not what it should be, or where it should be, or should not take place at all. A boundary dispute over possession is a clash of adjacent and opposite claims, with each party indicating where it owns, where it owned, where it should own; and even if at the same time he explains why exactly one should own, with reference at least to fortresses, still such a dispute, even regarding fortresses, does not yet acquire the significance of a dispute about patrimonial right. Consequently, the prescription of possession in boundary matters cannot serve to prejudice the prescription of patrimonial property, and vice versa.
In land surveying, possession is most important, and fortresses serve only as an explanation and justification for existing possession; therefore, during land surveying, fortresses for which there is no ownership are denied, not taken into account, and the applicant is sent to the patrimonial court, where he must prove his patrimonial right to the fortresses. But in a patrimonial case, on the contrary, the most important thing is serf proof of patrimonial right, and fortresses, even though there has never been ownership of them, serve to confirm patrimonial right for the applicant and to destroy the possession of the opposing party, so long as he does not lose the right of action for fortresses by prescription.
However, in the practice of boundary and patrimonial proceedings, due to the unclear concepts, boundary law was often confused with patrimonial law, and there were attempts to apply prescription to boundary matters unconditionally; but the central government did not dare approve such an application. Thus, in the well-known decree of 1778 on May 15 (14750), which took place at the request of the land survey office about the inconvenience of some decisions of the land survey instructions, it is clear that the land survey office intended to eliminate all disputes about surface forests, when there were no petitions for their acquisition before 1765, and the manifesto of 1775 about the zemstvo prescription was cited as the basis.
But the Senate at this time recognized it as impossible to apply zemstvo prescription to boundary matters, reasoning that “for many lands, indispensable tracts, contiguities and exact measures have been written for fortresses, and all this is clear evidence: if we read 10-year silence in the lands, then neither living tracts, nor contiguities, nor measure, nor fortresses will have force: it will be necessary to have one certificate of ownership of third-party people who can easily be persuaded: Moreover, not every owner could have accurate information about the number of lands owned before the survey, which is why even during the taking possession he was refrained from making requests, especially since since 1731 it was ordered to send surveyors, therefore everyone expected the survey, and in the manifesto of 1765 it was announced that no one would dare to search before the start of the survey, if they had not looked before 1765, If the owners were prohibited from doing so, then how can they be accused of silence? Subsequently, no doubt about the confusion of concepts of limitation, noticed in the verdicts of judicial places, it was prescribed by the Senate decree of 1824 (N 29981) that boundary places should be guided in controversial cases by the general laws on limitation, where they may be appropriate; but about every decision based on these laws, the boundary office is obliged to first report to the Senate and expect orders for execution from it.
But at a time when the institution of zemstvo prescription was not established in general Russian legislation, this institution existed for a long time in the law of Western Rus', in the Lithuanian statute. Therefore, when the instructions for land surveying of the Mogilev and Polotsk provinces (N 15654) were published in 1783, it was decided that there were no scribe books in that region, and the first rule for resolving land survey disputes was 10 years ago and undisputed possession until 1767. This year was adopted as the initial limit for calculating the limitation period because by the decree of 1767 it was prohibited in that region to enter into granted, leased and remaining estates in the treasury and to bring the owners to court; therefore, having a prohibition in the claim, no one could lose his right. So, whoever did not file a claim before 1767, in 1767, by silence, lost his right to everything that was borrowed from him before 1767. This rule was ordered to be applied in 1801 (Uk. Feb. 16) to the land surveying of Lithuanian provinces, with the difference that here, since the Lithuanian region was annexed to Russia in 1793, 1783 was ordered to be considered the initial statute of limitations.
According to the rules on the delimitation of the Chernigov and Poltava provinces (P.S.Z. 1859, N 35036), it was decided that the delimitation in this region is carried out according to the present undisputed possession. When resolving disputes about boundaries, the first rule and basis is the zemstvo 10-year prescription of possession; Before the promulgation of this provision, it was ordered not to accept any disputes from those owners or departments from whom no appearance or claim petitions for possession of lands were filed during the limitation period, or there were no such requests for 10 years, or after the decision of the case there was neither possession nor a petition to enforce the decision. Acts are ordered to be accepted for the resolution of boundary disputes only when they are written with a known measure or with living tracts and other signs that have been accepted by custom since ancient times.
On demarcation in the Transcaucasian region (P.S.Z. 1861, N 37186) it was also decided that it is carried out according to existing ownership. Evidence of rights to lands owned by another is accepted with respect only in this case, if this last owner has not acquired rights to these lands by force of zemstvo prescription. Participants in common dachas or in common undivided estates who have the right to a certain share of those dachas or estates, but who are using their arbitrary space prior to division, cannot demand the allocation of the next part to them based on their actual ownership, even if such ownership continued during the zemstvo prescription.
When the rules on judicial special delimitation of dachas were published in 1850, cases were identified in which statute of limitations may apply to cases of this kind. And here it is necessary to distinguish between boundary rights and patrimonial rights. It was explained above why the acquisition of land by ownership on the basis of prescription is impossible in case of inter-lane ownership, when the tracts are mixed and the boundaries of ownership of each of the partners are vague: then the very object of ownership does not have unity and integrity - the necessary conditions for continuous ownership that are required for the application of prescription. In this sense, prescription is not proof of patrimonial right and does not serve to acquire rights that are not asserted on anything other than prescription 327. However, it should be noted: 1) that not every common and undivided possession is at the same time interstriated and mixed.
There may be cases such that in a common dacha, undivided by fortresses, there is no striping, but from time immemorial they have owned it - one on the right, the other on the left, one on one side of an undoubted and unshakable tract, and the other on the other side. In this case, one can ask: do not all the conditions for the application of prescription in the separation of owners come together here, especially if the fortresses of both do not have a clear and definitive measure? The mere fact that the owners had an undivided right of ownership, can it deprive the actual, actual separateness of ownership of any meaning and eliminate the application of prescription to it? I think not, because the elimination of patrimonial prescription in dachas of common ownership is based not on direct law, but on consideration of the necessary legal and factual conditions for the operation of prescription. There is no law that would stipulate unconditionally that where there is undivided property, there cannot be patrimonial prescription.
And therefore I believe that if the individual conditions of ownership converge in a case, under which it can legally be subject to limitation, then limitation can be applied to it. Prescription requires possession that is actually separate and determinative, and if this property in this case is undoubted, then there seems to be no need to demand that possession be legally separate, i.e. limited by a legally drawn boundary. We can also point to the decisions of the highest courts that have taken place in this sense.
2) The above-mentioned consideration that prescription of possession does not have patrimonial force in dachas of common inter-strip ownership applies exclusively to the ownership of partners among themselves, precisely in the sense that one of the partners, who has his own patrimonial possession in a dacha, cannot, having seized, under the pretext of his right, part of the property from another partner, and then extend the force of patrimonial right to the seized place due to prescription. It is a completely different matter when the question is raised between the partners in a common dacha and an outsider who, having entered into the rights of one of them, owns his inheritance and dacha instead, even illegally. Prescription has an application to such possession. Let us imagine, for example, that a person who was not the owner of the dacha, Gregory, arbitrarily or under the wrong pretext took possession of one of the participants in the dacha, Peter, and owned it as the owner for more than 10 years ago, calmly and undisputedly.
In this case, his possession can receive the force of patrimonial right against the claims of not only Peter and his successors, but also against the dispute of other partners in the dacha. On the contrary, if Gregory, without having a special title, was himself one of the common participants in the dacha before taking over Peter’s inheritance, then he cannot refer to prescription. And if there was a special title, in this case the accomplice who took possession illegally can acquire the right by prescription: for here he no longer acquires by virtue of simple possession, but by virtue of a title sanctified by prescription. Ivan was listed as the owner of the common dacha after Peter, his illegitimate parent. In essence, he had no right to inherit, but took over. Ivan transferred his possession - at least illegally and unofficially as the owner - to a person or a stranger who was not previously the owner of the dacha, or at least to the former (in the present case it makes no difference), Gregory. Gregory continued his quiet and undisputed possession for a long time.
Then the legal heirs of the first owner, Ivan, are deprived of the right to refute the patrimonial inheritance right of Peter, and as a result the right of Petrov’s successor, Grigory. And as soon as they are deprived of this right, then the remaining partners in the dacha, seeing before them ownership based on a special patrimonial right, can no longer, by virtue of their joint ownership with Gregory, demand unconditional evidence from him.
The effect of limitation on the right of boundary in dachas of common ownership, in cases of their special delimitation, is expressed in the following resolutions of 1853.
Accepted as evidence: undisputed possession since the time of the general survey, and the prescription of possession (942 art. Inter. Law, ed. 1893). The following are not considered evidence and are not accepted for consideration by the court: scribe books and serfdom deeds from owners who are not shown on the general survey plan by summer residents, or, although shown, but who do not have actual ownership in that dacha and have not asked for it anywhere for 10 years and have not started a lawsuit (Article 943). If in dachas of common or inter-strip ownership there are owners who will be named in the general survey plan and own non-hereditary land, but will not provide fortresses on it, and meanwhile, after a search it turns out that they have indisputably owned their plots for 10 years or more, then such owners should be assigned the full amount of land according to their existing ownership only when other partners in fortresses or without are satisfied fortresses, with peasants listed during the general land survey (Zak. Mezh., ed. 1893, art. 950, note 1).
A similar rule applies to participants in ownership in wastelands that are specially demarcated (Article 954).
All these rules apply to such dachas, which were undoubtedly demarcated during the general survey into common ownership; and those dachas that, during the general survey, were approved as a single possession, but in which after that a common and even multi-lane possession was formed, are allocated on the basis of the general laws of patrimonial legal proceedings for fortresses and prescription (Article 951). On the application of prescription to interstitial possession, see Cass. decide 1880, N 19.
§ 86. Explanation of the law on the inviolability of the general boundary. Does prescription apply to possession inside a dacha that is generally demarcated?
The general rule of civil laws stipulates that the boundaries of general surveying cannot be destroyed by prescription, and likewise the rights associated with the decree of these boundaries cannot be destroyed by prescription - rights that consist precisely in the fact that they define the space of possessions and remain forever indisputable; any disputes about the boundaries of property in dachas, generally demarcated, must be resolved, in relation to the circumference of the dacha, by boundary laws (563 art. Civil Code).
There has been and continues to be confusion about the meaning of this law. It is alleged that the intention of the legislator when issuing this rule was not only to protect the inviolability of the general boundary and to establish the border of the district dachas forever, despite any seizures that could violate its integrity, but, in addition, the intention was to protect the owners of the demarcated dacha from the seizures of neighboring owners: in a word, they claim that within the boundaries of the dacha, generally demarcated, there is one possession of one or another participant, if it is not based on a serfdom or legal transfer; in itself, as possession, it cannot, by the expiration of any prescription, turn into a right of ownership.
This opinion is obviously based only on a misunderstanding, or, more directly, on a confusion of concepts about the difference between boundary law and patrimonial law. Opinion of the State Council of 1845, from which the latest edition of Article 563 is extracted. Zach. Citizen, does not contain anything that could serve as support for such an interpretation, or explain the thought of the legislator in the sense that the said interpretation gives it. A careful consideration of the opinion of the State Council of 1845 shows that in its reasoning about the inviolability of the general boundary, the State Council had in mind exclusively cases of taking possession through the boundary during its existence, or after its erasure, i.e. matters of a purely boundary nature. In such cases, the State Council argues, there can be no talk of other evidence of ownership other than a plan and a land survey book.
The inflexibility of boundary boundaries does not only refer to the time of general land surveying; it is impossible to allow that, due to any subsequent takeover through the boundary, due to the long-standing nature of the boundary itself, change its direction: this would contradict the rule of the boundary instruction and the decree of 1823, which confirms that in the analysis of disputes about borders should be guided only by the boundaries established by the general survey, and if anyone complains that the owners of neighboring, especially delimited dachas, having crossed the boundary approved between them, according to the general land survey, re-taken possession, then be guided by special rules, without at all violating the general boundaries.
“Not only reason (as stated in the cited opinion of the State Council), but also the very words of the laws (Articles 579 and 580 of the Holy Interst. Law of 1832 and Articles 715 and 716 of 1842) clearly determine that litigation about entire dachas, even if they were demarcated, or about lands not bypassed by the general boundary, are subject to quite an effect of prescription, but disputes about land seizures within the boundaries of the general survey are resolved solely by plans and survey books, without any searches about the ancient possession that existed before the approval of the boundaries. It cannot be otherwise, because to allow the possibility of violating the boundaries of the general survey by the prescription of possession would mean subjecting land ownership to the primitive disorder that existed before the boundary regulations, when border disputes were resolved not so much by judicial proceedings, as by fights on boundaries and other violence.
Then neither the boundary lines in the fortresses, nor the descriptions of contiguity, nor a certain measure, nor the fortresses themselves will no longer have their power; All that is needed is evidence of the ancient ownership of third-party people, who are sometimes not difficult to persuade even to give unjust testimony. On the contrary, only through observing the fundamental basis of land ownership, i.e. By recognizing the boundaries of the general survey as unshakable, seizures and their inevitable consequence - land surveys - can be prevented. Given the existence of common and inter-strip ownership and the resale of rights to plots that have not been finally demarcated from hand to hand, the subordination of the right based on general land surveying to the law of prescription would lead to the destruction of the last signs of undisputed ownership.”
It is clear to careful consideration that in all these considerations the State Council concerns patrimonial right, which stems from prescription, only insofar as it can be connected with the boundary of general land surveying, and has in mind exclusively the inviolability of the boundaries defining the space of ownership in a certain dacha. And the edition of 563 art. Zach. Citizen is expressed very definitely, mentioning only the rights associated with the resolution of general boundaries, and disputes regarding the boundaries of ownership in dachas, generally demarcated. So, if in this case a patrimonial right cannot be formed by prescription without violating the boundaries of general land surveying, such a case directly falls within the scope of Article 563, and the right cannot be formed by prescription. So, for example: according to the general survey, the border was drawn between the Petrovskaya and Ivanovskaya dachas.
Subsequently, one of the owners of the Ivanovskaya dacha, arbitrarily spreading his possession, crossed the boundary line and, under the pretext of the patrimonial right belonging to him in the Ivanovskaya dacha, begins to own in the lands of the Petrovskaya dacha, where he has no right; At the same time, he could consciously violate the border, consciously enter the Petrovskaya dacha, but he could also unconsciously plow the land, thinking that he continues to own his land within the Ivanovskaya dacha. In any case, when it comes to a dispute, such an owner does not have the right to confront the owners of the Petrovskaya dacha with the prescription of his possession; has no right to assert that, due to the long history of ownership, the space owned by him, seized by him in Petrovskaya dacha, should be considered his, Ivanovo land. His possession is terminated by the simple renewal of the boundary according to the plan, and he must enter the limits indicated on the old plan.
In a word: the identity of the area designated by the general boundary is unconditionally protected by law, and the land, which is shown on the plan as belonging to a certain dacha, forever belongs to it.
On the contrary, when a patrimonial right can be formed as a result of prescription, within the boundaries of a district dacha, without violating the boundaries of the general survey, 563 Article Gr. Zach. does not in any way interfere with this education. So, for example, if an outsider, even one of the owners of the neighboring Ivanovskaya dacha, took possession of the Petrovskaya dacha, arable land, estate, meadow, wasteland, etc., arbitrarily, without strengthening and without any title, and continued this ownership in the form of property for 10 years calmly and indisputably, without a doubt, he can oppose his long-standing possession to the claim for takeover and establish a patrimonial right to the occupied land. This right of his does not at all concern the general survey boundary and has no significant connection with it. The general survey did not at all mean to secure for the future in the dacha only those owners who are shown on the plan, or their successors; it did not mean to prevent seizures, to assign firmness to each patrimonial right: it was only necessary to draw a firm, unshakable boundary of the district dacha.
And therefore, there is no reason to impose goals alien to the general land survey and to deduce from the provisions of land survey law consequences for the rights of patrimonial property, which belong to their own special sphere and are governed by special principles (cf. the opinion of the State Council in the case of Beck, P.S. Zak., N 44433).
The decisions of the Senate were made in the same sense (Cass. decision 1870, N 901; 1871, N 471; 1872, N 1238; 1874, N 839; 1875, N 1047). The law - it is said in these decisions, establishing the inviolability of the boundaries of dachas, generally demarcated, did not remove these dachas from transferring from one owner to another, as a whole or in parts, by all legal means, including prescription. The inviolability of boundaries will not be shaken in any way if, by virtue of possession by prescription, the entire dacha or part of it, inside or on the border itself, passes to another owner: in this case, the boundaries of the general survey will not change at all and will remain inviolable for determining the limits of the dacha, and not special possessions, the number of which in this dacha can increase and decrease by all legal means.
Our judicial practice held firmly to this only true principle until 1874, when V.U.Mn. State With. on the Kokhanova case, published in Sobr. Uzak. that year under No. 629 (Full Collection of Laws, No. 53223). We present it in full.
The essence of the dispute that has arisen in this case is as follows:
On the basis of the Nominal Highest Decree of January 30, 1826, the appanage department received ownership of the former state-owned village of Vina with the lands belonging to it, the space of which is indicated with precision on the general survey plan. One of the adjacent owners, having crossed the border established during the general survey, took possession of 8 dessiatinas of the designated lands, which then passed into the hands of other persons through merchant fortresses and are now in the possession of the merchant Kokhanova. Currently, the specific department, based on Art. 563. 1 part X t. St. Zak. Citizens, by virtue of which the boundaries of the general survey cannot be destroyed by prescription of ownership, and the rights associated with the resolution of these boundaries and defining the space of ownership cannot be destroyed by prescription and remain forever undisputed, demands the return of the indicated 8 dessiatines to the property of the appanage, while the merchant Kokhanova, based on the prescription of undisputed possession, demands the approval of ownership in her favor.
When discussing this dispute, the real issue should be clarified both from the point of view of the law and from its practical application. Turning to the provisions of the law, the full clarity of the wording of the above 563 Art. Zach. Citizen leaves no room for any doubt. The ownership right of the appanage department to the lands of the village of Vin was strengthened by the Nominal Highest Decree of 1826, and the space of the land was determined by the general survey plan and designated in kind by the border drawn during the general survey. To allow a reduction in the designated space of land due to the seizure of unauthorized persons would mean to allow a gradual reduction of property assigned to the estate by the above-mentioned Nominal Highest Decree and approved by the general land survey plan, which would contradict the very essence of the above-mentioned provisions of the law. The said law (563 art., 1 part X t.), which took place in addition and development of the regulations of the Boundary Laws (883 art. t. X part 3, ed. 1857, corresponding to 724 art. t. X part 2, ed.
1893), included in the Code of Land Survey Instructions of 1766, is based on the opinion of the State Council on April 23, 1845. At the same time, the State Council reasoned that “disputes about land seizures within the boundaries of the general survey are resolved solely by plans and survey books, without any searches about the ancient possession that existed before the approval of the boundaries. This cannot be otherwise, because to allow the possibility of violating the boundaries of general land surveying by the prescription of possession would mean plunging land ownership into the primitive disorder that existed before the Land Survey Instructions, when border disputes were resolved not so much by judicial proceedings, but by fights on boundaries and other violence. Then neither the tracts living in the fortresses, nor the descriptions of the contiguity, nor the known measure, nor the fortresses themselves will no longer have their power; all that is needed is evidence of the ancient ownership of outsiders, who are sometimes not difficult to persuade even to give unjust testimony. On the contrary, only through observing the fundamental basis of land ownership, i.e.
By recognizing the boundaries of the general survey as unshakable, seizures and their inevitable consequence - land surveys - can be prevented. Given the existence of common and inter-strip ownership and the resale from hand to hand of rights to plots that are not finally demarcated, the subordination of the right based on general land surveying to the law of prescription would lead to the destruction of the last signs of undisputed ownership. As a result of this, the State Council decided to decide: 1) the boundaries of the general survey cannot be destroyed by prescription; 2) in the same way, the rights associated with the resolution of these boundaries cannot be destroyed by prescription, the rights that consist precisely in the fact that they determine the space of ownership and remain forever undisputed, and 3) any disputes about the boundaries of ownership in dachas, generally demarcated, must be resolved, in relation to the circumference of the dacha, by Boundary Laws.”
Consequently, the legislative act recognizes that disputes about land seizures within the boundaries of the general survey are resolved solely by plans and survey books, but not by the prescription of ownership. On this basis, many cases of similar seizures have been resolved by both the Governing Senate and the State Council.
Only in 1867, in the case of the hayfields of the landowner Bek, in the state wasteland of Romanovshchina, these mowings, by the opinion of the State Council, awarded the Highest approval on April 3 of that year, were awarded, by prescription, to the property of the owner Bek, but the case presented in this case was completely different. Precisely, as explained in this opinion, the disputed land in the Romanovshchina wasteland was located inside the demarcated dacha and did not in any way violate the general survey. In the case now under consideration, there is a dispute about land on the very border of the general survey, so that the alienation of this land from the appanage department, into whose possession the dacha is allocated, would lead to an inevitable violation, contrary to Art. 563. X t. Zak. Civil, boundaries of general surveying.
Turning then to the practical significance of resolving the present case in one sense or another, one cannot help but admit that the confiscation of 8 dessiatines of land from the appanages has very little importance in practice, especially since even when leaving this plot for the appanage department, this department, according to the certification of the Minister of the Imperial Court, does not at all intend to force the merchant Kokhanova to demolish her buildings from the occupied part of the appanage land; on the contrary, it will not encounter any obstacles to leaving this land in permanent use by Kokhanova, on the only condition that the right of ownership granted to her by the inheritance is established, by mutual agreement between them, by an appropriate act in the manner prescribed by law. But the resolution of the general question arising in the present case cannot but be of very significant importance.
In the Manifesto of Empress Catherine II of September 19, 1765, the purpose and significance of the general land survey are very clearly and definitively expressed: “Our will and command about State delimitation,” the Manifesto says, “has its sole object of true benefit for the whole society, the establishment of peace, rights and reliability of each owner in his acquired estate.” This goal can be achieved exclusively only by the inviolability of the general land survey, with which inviolability is connected that important principle by virtue of which land ownership, within the boundaries approved by the Government, is protected by law itself from its arbitrary violation, and according to which everyone who has a general land survey before him must know that this boundary has been set by the Government to protect property, and that he is not allowed to arbitrarily take possession of this boundary. This essential and fundamental principle of state land surveying is completely violated when appropriation is allowed.
Land surveying then loses all practical significance, and the resolution contained in Art. 563. X t. Zak. Citizen remains one dead letter. The very meaning of protecting property by force of law is thereby destroyed, and every owner is left to resort to physical force and arbitrariness to protect the inviolability of his borders. The practical consequences of such an order would be especially noticeable here in Russia. Many private individuals, placed in difficulty and sometimes in the impossibility of driving around, inspecting and constantly protecting their vast land borders from outside acquisitions, would be irrevocably deprived of their land property, but the application of the said principle to the lands of the State Property Department would be especially painful. Given the vast tracts of these lands, often uncultivated and lying waste, such acquisitions would be an extremely easy and convenient way of acquisition, and the State could thus lose a significant share of its fortune.
However, this decision of the State Council remains valid only as a decision in a private case. Its publication itself followed only by order of the Minister of Justice, and not by virtue of a resolution of the State Council. His disagreement with the established principles of judicial practice was so obvious that it was considered necessary to provide a detailed explanation of these principles through legislation.
In legal Bulletin of 1892 N 7–8 there is an article by G. Amchislavsky, objecting to our opinion on the application of prescription to general survey boundaries. These objections do not induce us, however, to change our opinion.
Appendix to § 64. Family plots
The abstract principle of equality, which has taken possession of minds since the French Revolution, is reflected everywhere in laws, and, by the way, in the law of inheritance. This is how the famous 826 Art. fr. citizen code, which passed along with it into many other legislations. Everywhere, and especially in France, it was the cause of significant economic disasters. By virtue of this article, when dividing the inherited property, each of the co-heirs has the right to demand an allocation in kind of the next part from the immovable and movable estate. On the other hand, franc. The law, by decreeing the legal share of the heirs, restricts every owner from the right to dispose of the estate in the event of death at his own discretion and to transfer his entire estate into trustworthy hands at his discretion. Thus, the law introduces into the economic sphere the compulsory principle of fragmentation of property, operating continuously and consistently, and, moreover, mechanically, without any distinction between persons and property.
The effect of such a law, over the course of several generations, turned out to be destructive everywhere both economically and politically - the disruption and destruction of mainly small farms, and the corresponding destruction of solid family life. For the state, the existence and multiplication of well-organized family unions, successively, from generation to generation, associated with an economically organized land dacha is extremely important. The owners of this type have been from ancient times and still constitute the political force of England: its institutions that ensure the freedom of the nation are established on them. On the contrary, the destruction of this type, characteristic of modern democracy, leads to the fragmentation of society into monotonous units, mutually unconnected and cut off from the earth, therefore powerless and groundless 328 .
No matter how diligently the head of the family organizes and cultivates his estate, which may have been built long before by the labors of previous generations, a repository of good family traditions, all this serves for nothing when, upon death, his estate is condemned to fragmentation, and the new owners of individual parts are condemned to resume economic work for themselves, which also ends with their death. Moreover, with each new fragmentation, when it is necessary to settle again, capital is required, and it is more difficult to get it: hence the debts - and credit, facilitated by the mortgage system, but detrimental to the estate, which the smaller, the more difficult it is for it to bear the debt. – Estates fall into insolvency and are sold at public auction. Thus, little by little, with the destruction of small estates, agriculture loses all attraction, and the population, previously settled and contented in rural life, flees from the village to the city, where the mass of homeless proletarians increases, dissatisfied, hungry and completely dependent on any random and material interest.
On the other hand, in the countryside, lands that were previously productive in the hands of the owners fall en masse into the hands of capitalists and become the prey of predatory farming or the site of factory industry.
Such are the sad fruits of the fragmentation of inheritances, which have already been fully discovered in France, where prudent people have long been looking for a remedy for these evils - in changing the law on inheritance.
All these are issues of paramount importance that have come to the fore - not in France alone, but more or less everywhere. And these questions are not new at all: they are inextricably linked with a subject of primary importance - at all times and among all peoples: - with the protection of the economic integrity of the family, which everywhere has constituted and will constitute the main support of order and well-being in the state. The center of the family in this sense is the home: its economic supports are housing and land, connected together. The earth requires care, labor, the art of waiting and counting: it requires a skill that not everyone has, and - due to physical conditions, it requires luck, which does not always happen. It is difficult for many to protect their home, their home and land - without outside help. Hence the formidable role that the lender plays in the history of the rural state - from the most ancient times - to the present day. Therefore, the fencing of small farms was a subject of care and concern everywhere.
Everywhere there was a need to arrange for the owner such a situation that his home would be protected from seizure during his lifetime and would remain indivisible after his death.
This special significance of hereditary transfer was expressed in strict English property law. According to the English view, the right of ownership, protected by a strong and definite patrimonial claim, is a right subject to inheritance, acquired by legal inheritance - a right in which complete ownership is combined with complete dominion over a thing. An inheritance is a significant, true acquisition; it constitutes the starting point and strong beginning of every acquisition. “All rules relating to sales,” says Stephen, “by which the legal course of descent is interrupted and altered, constantly refer to this fixed law of inheritance, as a datum or first principle universally known.” It's called Freehold by descent."
In practice, out of ignorance, they often confuse the personal ownership of the lands of former black-plowed peasants in the northern provinces with the personal ownership of former single-lords of the steppe areas, they mix it up because both are state peasants, and there is no special article in the Code of Laws about the personal ownership of northern peasants. But both possessions have a special history and mixing one with the other leads to mistakes that have been repeated many times in our court decisions. The historical study of our law is of particular importance for our judicial practice, which our clerks and judges were not always fully aware of.
In 1853, in the case of Stepanova (Collection of Sen. Resolution, vol. 1, no. 678), the general meeting of the Senate reasoned: having considered the legal provisions that existed both during the general survey and after it regarding common and inter-lane dachas, it turns out that prescription in relation to the space of ownership in these dachas cannot be recognized as valid, because by the manifesto of September 18 1765, paragraph 24, by land. the instruction of February 13, 1766 and the land survey instruction of May 25, 1766 ordered: owners who do not amicably divorce each other should be left without internal delimitation, and therefore the government, by blocking the division between these owners and postponing their proceedings until a special survey, thereby removed the possibility of applying to such dachas the law on zemstvo prescription in the form and space in which it is applied in cases of full ownership.
England introduced its own inheritance laws in conquered Ireland; but in 1701 a special law was passed for Catholics, by virtue of which their estates were subject to equal division: this was done precisely with the aim of fragmenting land ownership and dispossessing the owners.