68. On Occupation

1. City P., during a war, was pressed by siege and was harassed by the throwing of fire-bearing balls. Hence the palace of a certain rich man, the flames immediately increasing immensely, was set on fire. All the servants, altogether despairing of extinguishing the fire, fled away. Chrysophorus then secretly entered the house, and there carried off a little chest full of gold, and at once escaped, rejoicing over his happy lot. Moreover, he keeps the aforesaid money without any scruple, as the fruit of his extraordinary and audacious industry.

2. Fortunatus, after a city had been captured and sacked by enemies, bought from some soldier certain precious garments at an altogether trifling price. Then, examining these garments, he found in one of them various banknotes sewn in, each of which is of the value of 10,000 lire. Attributing this to divine providence, he keeps this whole sum for himself.

Q. 1. What is occupation? 2. What as to the cases?

R. To the first. Cf. I. M. 882 seqq. - To the second. Chrysophorus in the first case cannot keep the thing for himself. The reason is that that little chest full of gold belonged to the owner of the house, as the house itself belonged to him. Wherefore, just as, if the house itself had been preserved entire by the extraordinary and audacious industry of Chrysophorus extinguishing the fire, it would not have ceased to belong to its own owner, so also the little chest of gold, snatched from the fire, continues to belong to the former owner, and must be restored to him. La-Croix, l. 3, p. 2, n. 112; Elbel 172; I. M. 888.

Fortunatus is not held to return to the soldier the banknotes found in the garments. The reason is that, although that soldier in a just war and justly had occupied those garments and acquired dominion of them, nevertheless those banknotes, lying hidden in the garments beyond all his opinion, he neither occupied, nor consequently acquired dominion of them. But if the owner of the garments and of those banknotes can be known, to him indeed those banknotes are to be restored, since he did not cast aside the intention of possessing his own thing and of retaining its dominion. But if the owner can no longer be known, then he can keep the aforesaid banknotes for himself. Elbel ib.; I. M. 883; G. 510, 511.

3. Ambrosius has a garden open on every side. Hence the hens of Augustinus, the neighboring owner, freely enter his garden and devastate it. To prevent so great a loss to himself, Ambrosius kills the hens of Augustinus at night. Did Ambrosius act rightly?

R. Negatively. For hens are not wild animals, but tame and domestic. Nor is there present in the case a sufficient reason for preventing loss to himself. For he can easily remove this by closing his own garden, or by warning Augustinus that the hens not go out from his field and enter the neighboring garden; and, if he acts otherwise, by seeking reparation of the damage. Hence they also commonly say that it is not licit to kill another's doves, if they do not bring grave damage to one's own field, or can easily be driven away, for example, by setting up scarecrows, or by warning their owner. But it is otherwise if they gravely harm the estate and the damage cannot be avoided in another way. For it is licit for each one to preserve and defend his own thing, although equal damage indirectly follows to another. But doves are not presumed to harm gravely, unless in the time of harvest or of sowings.

4. Iacobus, a building craftsman, while working in a certain old house which had several times been sold by its owners and inhabited by several persons, found a huge sum of gold money of the seventeenth century, hidden between two neighboring walls, which appeared to be one wall. He hid half of this money and kept it for himself; the other half he yielded to the owner of the house.

5. Philippus, a servant, found a great quantity of money in a certain old and large chest, already placed for a long time in some room of the castle of his lord. In this room the old furnishings of the house were accustomed to be placed, and were preserved with great care in memory of the antiquity of the family. Rejoicing, Philippus took all that money to himself.

6. Blondina, a maidservant, bought fish. In gutting one of them she found an old gold coin; in another, however, she found a precious gem. Blondina keeps the gold coin and the gem for herself.

7. Praxedes, maidservant of a certain deceased priest, asked from his heirs for a certain chest which was found in his room. The heirs gladly gave it to the most faithful maidservant. Observing the chest, the maidservant notices that it contains a certain secret part, which she herself opens not without difficulty, and in it she finds 30,000 lire. It is unknown whether the priest knew of the thing; it is known only that he received a certain inheritance from a certain deceased blood relative of his.

Q. 1. What is treasure? 2. What as to the various cases?

R. To the first. Cf. I. M. 889. - To the second. 1. The money found by Iacobus has the true character of treasure. For, considering the circumstances of the case, there are no traces that that money belongs to such a person or family; nor is it morally possible to know this. Wherefore he acts rightly by keeping half for himself and yielding the other half to the owner. G. 523.

2. But the money found by Philippus does not seem to have the character of treasure. For from all the circumstances of the case it appears that that money had been deposited there by some person of that family, which always inhabited the castle; and therefore, although given over to oblivion, it is established that it belongs to the heir and his family. Otherwise, rich castellans of this sort, who often are ignorant of those things which they possess and which they receive by inheritance, would have to be despoiled of their own goods by their ministers and administrators.

3. As regards Blondina, some wish the whole to be adjudicated to the master of the maidservant, for the fish and whatever was in it was bought at his expense and for him; others, however, wish it to be divided between the master and the maidservant, just as treasure is divided, since that gold coin and that gem are not part of the fish, so that account of them could have been had in the purchase of the fish. Del Vecchio 36. But the whole seems to have to be adjudicated to Blondina herself. For first, nothing is owed to the fisherman, who, since he was ignorant that the gold coin and gem were hidden in those fish, did not occupy them nor make them his own. But nothing is owed to the owner of the fish, because the gold coin and gem enclosed in the fish do not have the character of treasure; for its definition is not verified in the case. Therefore Blondina can keep the whole for herself by title of simple finding and occupation of a thing which belongs to no one. I. M. 889, 931, 932, 933.

4. Praxedes must restore that whole sum to the heirs of the aforesaid priest, and she has no right to it. For first, that found sum is not a treasure. For it is essential to treasure that no one can prove the thing to be his own. But now the money contained in that chest, in order that it remain there so hidden, could not have been other than paper money, and therefore of altogether very recent time. Therefore that money was either placed there by the priest himself, who afterward wished the chest itself to be preserved in the room of the most faithful maidservant, or certainly it was placed there by that deceased blood relative of his, from whom perhaps he received this chest with other things. In either case the chest and the money contained in it belonged to the priest, and now it belongs to his heirs. Besides, that money is not a lost thing; for it never was in danger, but always was and is in a safe place, nor is the owner unknown. Hence it is that neither can the maidservant keep that money for herself, nor does she have a right to the reward constituted by law, which from C. I. 718 is the twentieth part of the sum, when this exceeds 2,000 lire. Nor, finally, is it management of affairs. For to find a sum of money by chance and to restore it to its owner constitutes no management of affairs. Wherefore the maidservant from a certain equity deserves only some reward for her outstanding fidelity in the case, by restoring that whole sum to the heirs. But this reward can well be practically defined, having before one's eyes the reward constituted by the law itself for things lost and found.