OWNERSHIP OF PROPERTY AND ADVERSE POSSESSION FROM THE CATHOLIC PERSPECTIVE: YOU'VE GOT TO HAVE (GOOD) FAITH!

• Author: Miller, J. Kirkland

God destined the earth and all it contains for all men and all peoples so that all created things would be shared fairly by all mankind under the guidance of justice tempered by charity. (1)

The overall concept of property in most people's mind constitutes rights in or to a thing. That is, rights to the thing that can be enforced by the state. (2) The idea that man can own a thing or piece of land is so common to our daily existence that we rarely think about it from a broader perspective and fully consider its origins. Most would think that these rights are positive rights or those fully created and enforced by the state. However, some legal philosophers view property as rights stemming from a higher order of things arising out of natural law. (3)

There is a balance in natural law theory of what can be owned or possessed and how that must be limited by the fact that God created our world for the whole of mankind and not simply for individuals. Property law has developed to memorialize these beliefs but also to allow the "State" to maintain order in society and work toward the common good for all citizens. Out of the developed theory of property rights, the laws of prescription or adverse possession have arisen in "positive law." (4) Over time, adverse possession has varied in its application. The question, however, is whether it has remained connected to or consistent with the Catholic faith and Canon Law.

The intent of this Article is to outline the natural law and Catholic perspective on individual ownership of property. More particularly, this Article will explore the legal concept of adverse possession through the lens of Canon Law and Catholic social teaching. To give context, the first part of the Article will outline the concept of universal destination of goods. The second section will provide an historical background of property rights theory grounded in Natural Law and Catholic Social Teaching. Finally, within the context of the Catholic Church's stance on the ability to own private property and the universal destination of goods, this Article will look at the doctrines of prescription/adverse possession. It will take into account Canon Law and God's Commandments in an attempt to reconcile these with the current American law of adverse possession.

1. UNIVERSAL DESTINATION OF GOODS

   Universal destination of goods is a truth that the Church has revealed in the area of economics and industry. The universal destination of goods' defining principle is that "the original source of all that is good is the very act of God, who created both the earth and man, and who gave the earth to man so that he might have dominion over it by his work and enjoy its fruits." (5) Pope John XXIII clarified: "[I]t cannot be denied that in the plan of the Creator all of this world's goods are primarily intended for the worthy support of the entire human race." (6) Pope John Paul II reiterated that "God gave the earth to the whole human race for the sustenance of all its members, without excluding or favouring anyone. This is the foundation of the universal destination of the earth's goods." (7) The Church determined that the social and primary function of all property was created for the benefit of all mankind. "[I]nalienable human rights are founded upon the essential relationship of the human person with God . . . ." (8) In essence, the principle of the universal destination of goods "is an affirmation both of God's full and perennial lordship over every reality and of the requirement that the goods of creation remain ever destined to the development of the whole person and of all humanity." (9) This principal comports with the Catholic Social Teaching and natural law concept of "solidarity: a 'union arising from community interests and responsibilities.'" (10) The Catechism of the Catholic Church also speaks to this concept:

   2402 In the beginning God entrusted the earth and its resources to the common stewardship of mankind to take care of them, master them by labor, and enjoy their fruits. The goods of creation are destined for the whole human race. However, the earth is divided up among men to assure the security of their lives, endangered by poverty and threatened by violence. The appropriation of property is legitimate for guaranteeing the freedom and dignity of persons and for helping each of them to meet his basic needs and the needs of those in his charge. It should allow for a natural solidarity to develop between men. (11) It is under this guiding principle, founded in natural law, (12) that the Church began to address the question of private property.

2. THE CONCEPT OF PRIVATE PROPERTY

   "[M]an, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life." (13)

   While this Article is meant to inform on the Catholic perspective, some background from additional legal scholars and philosophers is necessary to contextualize later writings from the Church. In addition, historical events are addressed to understand the economic and political environment as well. Early Christian and Catholic thought did not necessarily provide specifically delineated rules on private property but followed the natural law; "rules ordained by God, to be observed by all his human creations on peril of divine punishment" which address the area of property ownership. (14)

   A. Saint Thomas Aquinas

   One of the first to address the idea of private property as it relates to natural law was St. Thomas Aquinas, a legal and Catholic philosopher. (15) Between the years 1265-1274, Aquinas wrote the Summa Theologica. In this work, Aquinas addresses many facets of the Catholic Faith and Catholic Social Thought. His commentary in relation to man's possession of "external things" is steeped in the belief that man has "natural dominion over external things, because, by his reason and will he is able to use them for his own profit . . . [P]ossession of external things is natural to man." (16) This idea extends from his belief that God has "sovereign dominion over all things" and has made it such that these things can be used to "the sustenance of man's body." (17) Aquinas clearly recognizes the uniqueness of humans in creation, and that God intended humans to utilize natural resources for personal benefit. Specifically, Aquinas states:

   The possession of all things in common and universal freedom are said to be of the natural law, because, namely, the distinction of possessions and slavery were not brought in by nature, but devised by human reason for the benefit of human life. Accordingly, the law of nature was not changed in this respect, except by addition. (18) It is this recognition of human reason factored into the equation that makes property rights part of natural law. Accordingly, Aquinas states that ownership is not in conflict with the natural law but, instead, a way for man to make life easier. (19) He ultimately determines that it is lawful for man to possess property.

   For Aquinas, the possession of property is necessary for several reasons. First, "man is more careful to procure what is for himself alone than that which is common to many or to all." (20) It is best for the common good as man will be more productive and will work to better that which is his and not for the community. Second, order is preserved when each man "is charged with taking care of some particular thing himself, whereas there would be confusion if everyone had to look after any one thing indeterminately." (21) Third, the state of things will be peaceful if each man is content in his own possessions. We will avoid quarrels. (22) In essence, "by avoiding confusion and promoting a sense of personal responsibility, property rights could actually help more effectively bring the fruits of the earth into general circulation." (23)

   The limitation or condition placed upon private ownership is that man is afforded the natural control over these things to use them for his own but also for the common good (universal destination of goods). (24) For Aquinas, according to God's law, property would be held for the common good, (25) but that the best and most effective use of land is made under the individual control of man. (26)

   B. John Locke

   John Locke, an English philosopher and physician, was extremely influential in American Politics (27) and, in his Second Treatise of Civil Government, Locke addressed property rights from a perspective steeped in natural law similar to that of St. Thomas Aquinas. (28) His theory of private land/property was grounded in his belief that there exists a natural right to private property borne out of man mixing his labor with the land to create something that is fruitful and of value rather than "lying in waste." Locke states:

   Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men. . . . (29) He indicates that the labor of tilling and planting, etc., does "inclose [the property] from the common." (30) Locke opines that "subduing or cultivating the earth, and having dominion . . . are joined together" (31) and that the appropriation of the land does not "prejudice" other men as there is enough land when the person who cultivates uses only what he can maintain and improve. (32) He theorizes that "[p]rivate property rights were acquired by natural, moral and rationale conduct which individuals...