II. On the Modes of Acquiring Ownership by Natural Law

What are the various modes of acquiring ownership? - To an exact knowledge of ownership and of the rights and obligations which derive from it, there pertains not only knowing its essence and its various species, but also the various modes by which it is acquired. - A mode of acquiring ownership is any title, or cause of itself suited to confer ownership. Now some modes arise from natural law or the law of nations, others from civil law, others from private will. The natural modes of acquiring ownership of goods of fortune can be reduced to occupation and accession. C. I. 710; C. H. 609; C. A. 317, 381, 404, 423, 424; C. G. 712, 714; Inst. 1. 2. t. 1. § 11; Gousset, Cod. Comm. in a. 712; S. Th. 2. 2. q. 57. a. 2, 3.

What is occupation? 1. Occupation is: the real apprehension of a corporeal thing with the intention of having it as one's own. Apprehension, namely, in that way which the thing permits and usage bears, for example by hand, feet, snare, net, inflicted wound; and not only by sight or view. Corporeal, for incorporeal things, such as rights, cannot be apprehended corporally.

2. It is a legitimate mode of acquiring ownership, provided that: 1. The thing is capable of private ownership and is no one's; or if it belongs to someone, the owner willingly yields his right, for instance by contract; or if he is unwilling, he is legitimately despoiled of his right, for instance by military occupation. 2. The occupier wills to make the thing his own when in fact he apprehends it. 3. That the thing has not already been occupied, as it were, by some law which has reserved it to a certain owner, for example to the state.

The reason is that man is master of things in first act from the very nature of external things and from divine institution. But in second act he does not become master of things except by some fact; and the most original fact of all is occupation. It is impossible to assign another. Hence all men and all laws hold this fact of occupation as a legitimate title of ownership. Occupation of this kind by man contains in itself industry and labor, which naturally bears fruit for the industrious and laborious man himself. A thing bears fruit for its owner.

3. The species of occupation are: finding, hunting, fishing, concerning which something particular must soon be said. C. I. 711, 758; C. H. 610, 956; C. G. 539, 713, 714, 768; C. A. 382, 760; C. B. 958; C. He. 658, 659; L. 493; S. Th. 2. 2. q. 66. a. 5 ad 2.

You will resolve: A soldier can keep all movable things if he has stripped an enemy killed by himself; for this is the general custom. He also seems to be excused if he has stripped other prostrate enemies. But if he has taken things from fallen comrades, he must restore them to the known parents or heirs of the dead, insofar as this can be done and the value of the thing requires. Gur. Cas. 512; Struggl, de V. Praec. dec. art. 5. nn. 49, 50; Reiffenst. tr. 7. d. 5. q. 1. n. 4; S. Th. 2. 2. q. 66. a. 8 ad 1; C. A. 402; Inst. 1. 2. t. 1. § 17.

What is finding? - To find and to acquire by finding is not only to see the thing, but also physically or morally, as the thing requires, to apprehend it. Things found are of three kinds. Some are those which have never been under the ownership of any man, and are called things belonging to no one, such as a gem found on the shore of the sea. Others are those which were under the ownership of man, but in fact lack an owner; either because the owner cast them away with the intention of possessing them no longer, and they are called abandoned goods; or because the owner dies without a testament and without heirs, and they are called vacant goods; or because the owner, who hid or deposited money or other precious things, has been dead for a long time, so that no memory of them any longer existed, and they are called treasures. Finally others are those which have an actual owner, but he is unknown, because they were lost by him, he not knowing with whom or where they may be found, and they are called things recently lost.

What about a thing belonging to no one? - Things belonging to no one, which have never had an owner, become the finder's. It is proved 1. from the common opinion of theologians. 2. From positive law itself. 3. Because that which belongs to no one, by the fact of occupation, legitimately becomes one's own. Meanwhile, however, as to the right of digging for metals, etc., particular laws of places must be attended to. For although the things belong to no one, nevertheless in order that they be occupied the rights of others can easily be harmed. Things belonging to no one, namely, per se; for by law the ownership of the soil carries with it the ownership of those things which are under it and above it. C. I. 440; C. G. 552; C. H. 350; C. B. 905; C. He. 667, 718; C. L. 465 ff., 2288, 2321 ff. - C. I. 711; C. H. 610; C. A. 317, 382; Inst. 1. 2. t. 1. § 18; S. Th. 2. 2. q. 66. a. 5 ad 2.

What about an abandoned and vacant thing? - By natural law, abandoned and vacant goods become those of the first occupier. The reason is that they no longer have any owner; therefore they yield to the first occupier, no differently than those things which have never had an owner. But by positive law they are commonly assigned to the state. C. G. 713, 768; C. I. 425, 758; C. A. 760; C. B. 928. Nevertheless this seems, from custom, to have to be restricted to immovables alone, at least before the sentence of a judge. Thus it is expressly drawn from C. A. 386, 387, 388; C. B. 928, 958, 959; C. He. 664, 718; C. L. 411. - Inst. 1. 2. t. 1. § 47; Carrière 285, 343; S. Th. l. c.

Note: To the title of occupation can be reduced the mode by which the poor occupy dry branches of a forest, ears of grain or chestnuts after their harvest, clusters after the vintage, etc., which are held as abandoned and generally conceded by owners to the poor. The same must be said of wood which the flooding of a river has carried far elsewhere and which can no longer be recovered without expenses which far exceed the value of the thing.

From the Constitution of Benedict XIV, Ex commissio Nobis, 17 May 1751, it is prescribed that, "the harvest having been made, the gleaning be altogether freely permitted to the poor by the owners of estates, so that without any impediment they may gather ears either scattered on the ground or passed over by the reapers, and may bring them home to their families." Goods lost by shipwreck, even if on the occasion of a storm they are voluntarily thrown into the sea, are not considered abandoned, because they are not thrown away with the intention that the owner, as it were, does not wish to have them, but so that he may escape that danger of shipwreck with the ship. Inst. l. c. § 48. Nor likewise are those things held as abandoned which are freed from fire, flood, or the hands of robbers, even if otherwise they would have perished, and someone saves them not without danger to his own life. Hence all these things must be restored to their owners, with expenses made and the price of the labor and danger which he underwent being repaid to him. From C. A. 403, he who preserves another's thing from certain danger can, besides compensation for expenses, demand a proportionate reward. - Cf. C. He. 725. Abandoned goods are not those which, although they have ceased to be in our power, can still probably be recovered. But when every hope of recovering them has vanished, they cease already to be ours, and begin to belong to no one. For ownerships of things exist so that we may use things. And, because intention is required for ownership, if it is prudently judged that the owner, when he knows his thing is in danger of perishing, is no longer solicitous about it, it can be held as abandoned; for example, if the thing is of slight value, and great expenses would be necessary to recover it.

As to vacant goods, Struggl, Theol. univ. P. 2. tr. 8. d. 2. q. 2. a. 2. VII, has this: "It is sufficiently probable that one sharing in vacant goods, or their possessor, is not bound before the sentence of a judge to hand over the same goods to the treasury... I judge this a fortiori if someone had diligently served such a deceased person, or had been his friend in such a way that he would have had a prudent hope of inheritance or legacy, if that man had made a testament."

What about treasure? Treasure, from C. I. 714; C. G. 716; C. H. 352, is any precious movable object which has been hidden by the hand of man or deposited under the earth, and therefore lies hidden there, whose owner no one can prove himself to be, whether the deposit is old or recent; but from C. A. 398 and from C. B. 984, it is an old deposit. Cf. C. L. 442 ff. By the hand of man, thus indeed L. un. C. de Thesauris: Treasure, that is, movable things hidden by unknown owners in a more ancient time. As to the various modern Codes, it is not sufficiently clear whether the thing must have been deposited by the hand of man; or whether by some other cause also it is held as treasure, and not as a thing belonging to no one, so that it simply becomes that of the first occupier.

Treasure, wherever it is found, by the law of nature belongs wholly to the finder. The reason is that treasure is reckoned among abandoned goods, and is not part of the land, or a fruit of the land. But to find treasure is not to apprehend it by hand, but first to see it, and to perceive, uncover, or know that it is treasure, and to apprehend it. L. 602; S. Th. 2. 2. q. 66. a. 5 ad 2. Treasure belongs, from C. I. 714; C. G. 716; C. H. 351, to the owner of the land. From C. A. 399, a third part is owed to the treasury. If someone by chance finds treasure in another's land, whether rural or urban, the treasure is to be divided by halves between the finder and the owner of the land.

If someone purposely sought treasure in another's land, the owner being unaware, by force of law the whole treasure belongs to the owner of the land. To the owner of the land, whether the owner is a private man, or the treasury, or a city, or a church. But if it is found in a place destined for public uses, as in a public road, square, or market-place, even if intentionally sought, by the common opinion it belongs wholly to the finder. C. I. 714; C. G. 716; C. H. 351. To the owner of the land, for it does not yield to the usufructuary, C. I. 494; C. G. 598; C. H. 471; C. B. 1040; C. L. 2216. But treasure found in emphyteutic land, from C. I. 1561; C. H. 1632, yields not to the direct owner, but to the useful owner; from C. A. 399, it yields to both.

From C. He. 723, treasure belongs to the owner of the thing in which it is found. The finder has a right only to equitable compensation, never, however, beyond half the value of the treasure. From C. B. 984, treasure belongs by half to the finder, in whatever way it is found, even purposely, and by the other half to the owner of the thing in which it was hidden. - L. 602; S. Th. 2. 2. q. 66. a. 5 ad 2; Lugo d. 6. nn. 114, 117; Inst. 1. 2. t. 1. § 39; C. A. 399-401. Ownership of treasure by force of law is acquired immediately by the owner of the land and by the finder. But the law which extorts half the part from the finder, when he purposely seeks treasure in another's land, seems penal. L. 602; Lugo d. 6. n. 131; Gur.

Cas. 526; C. A. 400; C. I. 714; C. G. 716; Gousset, Cod. Comm. in this article; C. H. 351, 614. Someone can buy an estate at the common price, although he knows certainly that a treasure has been hidden there. The reason is that neither is the treasure a fruit of the land, on account of which he ought to pay a greater price for the land; nor does the certainty of the thing which he has bring any injury to the seller. For since that treasure has not yet been found by the owner of the land, it is not yet his, but the thing continues to belong to no one. Therefore the fact that the buyer certainly knows that treasure is hidden in that land, while buying the field at the common price, injures no right of the seller. Lugo d. 6. n. 126; S. Th. 2. 2. q. 66. a. 5 ad 2.

What about a lost thing? - Concerning a thing lost by someone, if someone takes a thing found by chance, he must take it with the intention of restoring it and of asking about the owner; and to this he is bound from quasi-contract. The reason is that the finder in this way freely receives another's thing into his custody; and therefore he is considered to bind himself by quasi-contract to restoring it, and consequently to asking about the owner of the thing. Moreover, the owner of the thing ordinarily wills that the lost thing be the finder's after the latter cannot discover the owner; and therefore, on account of this favor, he is considered to bind the finder by quasi-contract to the burden of asking. Hence if the finder culpably neglects to inquire after the owner, those goods are due from delict. Add that, as often happens, when the finder apprehends the thing, he is the cause why the owner, commonly remembering the place in which he lost it, seeks the same thing in vain in that place. Lugo d. 6. n. 132; Struggl l. c. III; L. 603. D'Annibale, ed. 4. p. 2. n. 132, thinks that the finder "must seek the owner, but not from justice, unless he himself, by taking it away, made it so that the owner could find it with more difficulty. But to hide it is almost theft." But if he takes it away, and does not inquire, how will the owner find his thing? And if he takes it away and does not inquire, does he not hide it?

The finder in bad faith, who has hidden the lost thing and neglected to search for the owner at the due time, is bound in conscience to distribute the found thing to the poor, or to apply it to pious causes, even if afterward he cannot discover the owner of the found thing. The reason for this is: 1. because by the very fact that someone hides a thing lost by another, or neglects to search out the owner, he sins against justice by detaining another's thing. Therefore no less than a thief, from unjust detention, he is bound to restitution. Since then he can no longer discover the owner, he is bound to distribute it to the poor, or apply it to pious causes. 2. Because it cannot prudently be presumed that the owner of the lost thing wills that such a finder have an advantage from his own delict; but rather that, after he has neglected due inquiry, he have the burden of expending the found thing in alms or other pious causes, so that the owner may at least receive a spiritual advantage. S. Th. 2. 2. q. 62. a. 5 ad 3; L. 603; Struggl l. c. XIV. The finder who has employed due diligence in inquiring after the owner, and could not discover him, more probably can licitly retain the lost thing, without an obligation of justice of giving anything to the poor, or of expending it on other pious causes. The reason for this is that the owner of the lost thing is prudently presumed to will that the thing found, after diligent and sufficient search for him has been employed, be the finder's. Therefore, by reason of the title of finding, and of the similar will of the owner prudently presumed, the finder can prudently and licitly appropriate the found thing to himself. The consequence is clear, because, with these things supposed, nothing prevents the finder from being able to appropriate the thing to himself. The antecedent is proved: 1. The owner of the lost thing wills the finder to be bound to inquire diligently and sufficiently who the owner of the lost thing may be. Therefore by this very fact he is prudently presumed to will that the finder, after he could not discover the owner, be able to appropriate the lost thing to himself as a reward of his industry, because no one is presumed to will to oblige another to burdens without remuneration, especially if this can be done without his own damage. 2. The owner of the lost thing is prudently presumed to will that the lost thing be preserved in that way by which he can recover the same more easily and more securely. Therefore. The major is clear; for owners of lost things ordinarily have such an intention. The minor is also established, because the thing is more easily recovered from one finder than from many poor persons or from pious causes. Cf. 893. Struggl l. c.; Lugo d. 6. n. 100 ff.; L. 603; S. Th. 2. 2. q. 66. a. 5 ad 2; C. I. 715; C. G. 2279; C. H. 615; C. A. 388.

Is one who finds another's thing able to leave it in the place where it is, or is he bound to collect it? He is certainly not bound from justice to collect that thing; and the reason is that by no special office and by no contract is anyone bound to collect another's found thing. - Nevertheless he is bound from charity to collect that thing for the owner, if otherwise it would perish, or the owner would no longer be able to recover it. The reason is that from charity we are bound to avert a neighbor's damage which we can easily prevent. Hence, generally speaking, if the thing found is of great price, and there is a great probability of discovering the owner, and no damage is to be feared on the part of the finder, that obligation is grave.

Does he sin who first takes another's found thing, but afterward puts it back in the same place? - He sins not only against charity, but also against justice, if there was probability of discovering the owner, by retaining the thing. The reason is that he exposes another's thing, already existing in a safe place, to the danger that it perish for the owner, just as he who throws into the fire a cloth rescued by himself from a fire. Moreover, by collecting another's thing he undertakes an obligation from justice of restoring it to the owner, if he can. Except, however, if you foresee that you will suffer damage from it; for then "you can put it back in the same place and permit another to carry it off, although by doing this you put the thing into a worse state; for then the taking by the thief comes about from his own malice, and your cooperation is only permissive of another's loss, which you are not bound to avoid with your own damage." L. 569. D'Annib. ed. 4. p. 2. n. 199 holds that this is against charity, not against justice, because there is a certain quasi-compensation of both acts. And he affirms this generally for a thing rescued from any danger and put back in the same. But this is mere caviling. The second act, once the condition of the thing exposed to danger has already been changed, and once the obligation of restoring that thing has already been undertaken, no longer compensates the first.

Can one who has found another's thing, and after sufficient diligence, the owner not having been found, has made that thing his own, nevertheless keep the thing as his own by title of prescription, when the owner becomes known after a time sufficient for prescription? - R. Affirmatively, probably. The reason can be taken from St. Alphonsus, l. 3. n. 590; for he says: "When, after all circumstances have been considered, it is no longer possible" (understand morally speaking) "that the owner be found," if the thing, after due diligence has been employed to find the owner, has been handed over to a poor person, and afterward the owner appears, the poor person is not bound to restore it, because "then the poor person acquires absolute ownership of the thing without any burden of restitution." Therefore, by parity, the same must be said of the finder himself, if, as he can, he himself keeps the thing with himself. And the reason a priori is because, as the same holy Doctor says, l. c. n. 603: "When a thing, considering the circumstances of length of time, or distance of place, or the fact that the thing can no longer be recognized by the owner as his, as happens in ordinary coins, does not seem possible to return to the owner; then it becomes the thing of no one, and therefore is acquired by the first occupier, who is not bound to give it according to the will of the prior owner, since he, through the impossibility of recovering it, has entirely lost its ownership...; because the law of nations attributes to private persons ownership of things for no other end than that they may use them; hence, when it is impossible for the thing to come to their use, it becomes, as abandoned, the thing of no one, and returns to the primeval natural law, and therefore becomes that of the first occupier without any obligation." - S. Th. 2. 2. q. 66. a. 5 ad 2.

From C. I. 715-718; C. H. 615, 616, the finder of a movable object which is not treasure must restore it to the preceding possessor; if he is ignorant of him, he must without delay hand it over to the Syndic of the place where the object was found. The Syndic makes the thing known by publication, to be repeated according to the accustomed forms on two successive Sundays. After two years have passed from the day of the second publication, without the owner appearing, the thing, or its price, if circumstances required that it be sold, belongs to the finder. But if the owner of the lost thing appears at the opportune time, he owes a reward to the finder. The same as to substance is had from C. A. 388-392, from C. B. 965-982, and from C. L. 415 ff. - The finder of a lost thing makes it his own after three years have passed, from C. A. 392, 1466; after a year from C. B. 973. If in the meantime the owner appears, he owes a reward to the finder.

From C. G. 2279, the owner of a lost thing can reclaim it within the space of three years. From C. He. 720 ff., the finder of a lost thing is bound either to notify the police, or to make due inquiries for the owner. If the owner does not appear, he acquires ownership of it only after five years have elapsed. - C. L. 419 establishes a varied space of time according to the varied value of the thing.

How are the various animals distinguished? As regards hunting and fishing, animals are of four kinds. Some are tame or domestic, which from their disposition enjoy human association, such as horses, sheep, hens, etc. Some are wild, or beasts, which from their disposition flee human association, such as wolves, deer, hares, birds, fish, etc. These sometimes exist in their natural liberty, as a deer in a forest open on every side, a fish in the sea; sometimes, with such full liberty removed, they are enclosed by some custody, as a deer in a grove surrounded by high hedges, etc. Some are tamed, and these are wild animals or beasts which are made tame by human industry, and are cared for in such a way that they have the custom of going away and returning, as doves in a dovecote, rabbits in a warren. Finally some are become wild, and these are animals which, after putting off a prior custom, either assume their former wild nature or contract it. C. B. 960.

What about tame animals? Tame or domestic animals remain those of the prior owner, however much they wander off; hence they cannot be occupied by another. The reason is that animals of this kind are subject to the ownership of a particular man, and are morally recoverable; and therefore, since the owner does not put away the intention of recovering them as his own, he always retains ownership of them. For the same reason, if someone has snatched your sheep from the jaws of a wolf, he preserves it not for himself but for you. Meanwhile, however, in this and a similar case, the one preserving another's animal can ask the price of his work at least from equity, but the price of necessary fodder even from justice. Inst. 1. 2. t. 1. § 16; C. B. 960; C. L. 404 ff.; Lugo d. 6. n. 41.

What about tamed animals? Wild animals that have been tamed, as long as they have the custom of returning, or are enclosed by certain custody, do not become those of the first occupier; but they do become so after they have lost such a custom, or after they have escaped custody. The first reason is that animals of this kind belong to the possessor both by reason of occupation and also by reason of training and detention. Moreover, all laws so establish. The second reason is that, if they have lost the custom of returning, or if they have escaped the custody of the owner, they cease to belong to the prior owner; for they have recovered their first nature and liberty. - Inst. 1. 2. t. 1. §§ 12, 15; C. B. 960; C. L. 400 ff.; C. He. 719; Lugo d. 6. n. 41.

You will resolve: When an entire swarm of bees flies away from a hive, and the owner loses probable hope of recovering it, the swarm of bees becomes that of the first occupier. From C. G., Law of 6 Oct. 1791; C. He. 725, it belongs to the owner of the land in which it settles. From C. I. 713; C. H. 612, unless the owner has pursued bees flying from his own land into another within the next two days, and likewise unless someone has vindicated for himself, within twenty days, tamed wild animals which another has caught, the former become those of the owner of the land, the latter those of the one catching and retaining them. Doves, as long as they have the custom of returning home, are not those of the first occupier; just as neither are other tamed animals. Hence it is not lawful by specially prepared food, or by other enticements, to attract another's doves to one's own dovecote. If, however, doves, rabbits, or fish have betaken themselves of their own accord into another dovecote, enclosure, or fishpond, they belong to the owners of these. C. I. 462; C. G. 564; C. H. 613. Fish in a large lake and wild animals in vast forests, even enclosed ones, become those of the first occupier; for they are left in their natural liberty. Inst. 1. 2. t. 1. §§ 14, 15; C. A. 384, 3121; C. B. 961 ff.; C. L. 400 ff.

What about wild animals? - Wild animals which lack an actual owner and enjoy natural liberty become those of the first occupier. The reason is that, as is said in Inst. 1. 2. t. 1. § 12, "that which previously belongs to no one is granted by natural reason to the occupier." Hence a wild animal wounded by one person and captured by another, if it is established that it can no longer escape the hand of the one wounding, belongs to the one wounding, not to the one capturing. The same must be said of a bird for which one person has set a snare, but another has nevertheless taken it. Inst. 1. 2. t. 1. § 13.

C. I. 711; C. H. 610; C. A. 383; C. B. 960; L. 604.

How do laws which prohibit hunting and fishing bind? - Laws which prohibit hunting and fishing at some determined time, or with some determined instruments, or without payment of the tax for the due faculty, according to the common and probable opinion, are merely penal laws; and therefore they do not oblige except to undergoing the fine and penalty, if someone is caught. The reason is that laws of this kind regard only a material and external good, and indeed one not of great moment: the due procreation and multiplication of fish or birds. L. 1. 1. n. 145.

In Germany, however, they seem preceptive from C. B. 958, which invalidates occupation of a thing legally prohibited, or when by apprehension of possession another's right is harmed; unless, namely, some other custom at least obtains as to hunting, or unless it is said that the law in the case does not really prohibit occupation of such a thing, but only in such a mode, time, etc. Laws which prohibit hunting or fishing in a closed private estate are prohibitive laws in conscience. For these laws confirm the natural law, lest anyone use another's thing against the owner's will and cause him damage. Therefore those transgressing these laws sin against commutative justice and are bound to compensation for damage. L. 604; C. I. 712; Inst. 1. 2. t. 1. § 12. Laws which prohibit hunting or fishing in some public place, by force of a contract entered, for example of lease, are prohibitive laws in conscience, by force of commutative justice.

Therefore, if someone in that place were to take so great a multitude of fish or other animals that another's right would be notably harmed, he would sin gravely against commutative justice and would be bound to compensation for damage. L. 605, 614, 617; H. A. tr. 10. n. 71; Lugo d. 6. n. 189. Laws prohibiting hunting and fishing in a determined place, from an exclusive privilege conceded to others, are likewise prohibitive in conscience; for they prohibit violation of a conceded right. But if there is a simple reservation, "Diana with Dic. etc. excuse the hunter from restitution and from grave sin, if the places are not enclosed.

Lessius also admits this, if the damage was not notable, since the wild animals are not of great price, or are not many; for then he says that the prohibition, from the common judgment, is understood as made only under venial sin. Indeed he adds that hunters can always be excused from restitution when a penalty has been enjoined, because Princes then seem to intend that alone." L. 605. Likewise, if there is a simple license, even though it is obtained only by money, others hunting or fishing without that license do not injure commutative justice; nor do they regularly injure legal justice, because the law is then commonly held as penal; and therefore one is bound only to undergo the penalty, if he is caught.

As to animals captured contrary to the aforesaid laws prohibiting hunting and fishing: if they were under the ownership of the owner of the place, or of the one having the right either from contract or from privilege of hunting or fishing, they must be restored, since someone by capturing them cannot make them his own. But if those animals were not under the aforesaid ownership; since, for example, although fish are in some large lake, or wild animals in some large enclosed forest from which they cannot go out, nevertheless they can still escape the nets of him who wishes to catch the fish, or wander and escape the hunter; then no restitution of them is to be made, since the one catching them makes them his own. Lugo d. 6. n. 72. A wild animal becomes that of the first occupier, even if it is caught on another's land.

The reason is that although the wild animal exists on another's land, and therefore passing over there is illicit, nevertheless it does not exist under another's ownership; unless the land is closed, so that the wild animals cannot go out from it and can easily be caught there; for these are then considered to have lost liberty and to belong to the owner of the land. Likewise, although the owner of a territory can appropriate to himself the right of hunting in his own territory, nevertheless he cannot appropriate a free wild animal, since he has title of property only to that territory, not to the animal. But the owner who has his own right of hunting in some territory can not only release a wild animal caught in a snare, but also take away the snare or other instrument, without being bound to its restitution, as theologians commonly teach.

The reason is that such taking away is considered by common custom as a penalty for the right of hunting having been injured. Hence, since by this title he can release the wild animal, by the same title he can also retain it for himself. Inst. 1. 2. t. 1. § 12; C. L. 384 ff. If the owner of the land from his magnificence thinks little either of the captured wild animal to be restored, or of the damage inflicted to be repaired, and is content with the fine or penalty alone, so that the wild animals may be safe, neither restitution nor reparation of damage is to be urged, even if perhaps the fine also was not paid, because the crime remained hidden. - But where damage must be repaired, an estimate is to be made according to the judgment of a prudent man, with attention to all the circumstances.

For this, if the wild animal was not under another's ownership, does not depend on the price of the captured wild animal, but on how much it mattered to the owner, or to the one having the right of fishing or hunting, that the animals not be captured, because more animals would have been captured by him or by his men, unless someone had unjustly taken them. Therefore, if that act, with attention to the multitude of wild animals, did not prevent him from capturing as many as he wished, nor caused their price to decrease, reparation of damage is not to be urged. L. 604, 605.

What is accession, and of how many kinds is it? Accession can be taken in two ways, generically and specifically. Considered generically, it is an addition made to some thing, either on account of the production of a thing, or on account of the union of a thing with another, or on account of the alteration of the same thing. C. I. 443; C. G. 546; C. H. 353; C. A. 404; C. L. 2284. Cf. here 902, 905.

Is ownership acquired by production of a thing? - By reason of production of a thing there is distinguished generally the production of fruits, and specifically birth.

By production of fruits, whether natural or by fiction of law, the proprietor of a fruitful or lucrative thing makes its fruits his own, whether natural or civil, such as the fruits of fields and the rents from lease of houses or revenues. Hence the common saying: A thing bears fruit for its owner. C. I. 444; C. G. 547; C. H. 354; C. A. 405; C. B. 953; C. L. 2290. - From C. B. 954, 956, ownership of fruits is not acquired by others than by the owner himself of the fruitful thing, except by their separation. But birth is the offspring of animals, by which ownership is acquired of the animal generated from one's own animal. For this title it makes no difference whether the offspring was conceived from one's own or from another's male animal. Hence the legal saying: The offspring follows the womb. C. I. 443, 444; C. G. 546, 547; C. A. 406; C. H. 357; L. 494, 609, 610. He who receives the fruits of a thing has the obligation of compensating third parties on account of expenses made for cultivation, seeds, and works. C. I. 445; C. G. 548. Inst. 1. 2. t. 1. §§ 19, 35.

Is ownership acquired by union of a thing? - The union of a thing with another also comes under the name of accession, and accession taken in this way, although more determined, is still taken generically. And thus accession, taken generically but more strictly, is a union by which something accidental is joined to the principal. But this union can be made by nature or by art; hence there are various species, concerning which we shall speak immediately. Since the accessory follows the principal, the property of the principal thing generally grants a right in the accessory thing united to it. - R. I. 42 in the Sixth; C. I. 443; C. G. 546; C. H. 353; C. A. 404; C. L. 2289, 2299.

Is ownership acquired by alluvion? - Alluvion is a species of accession in a matter of soil, not by man's industry, but by nature alone. Four things are to be distinguished here: alluvion, avulsion, change of riverbed, and an island born. Alluvion is a hidden increase which is gradually added by a river to some estate. By alluvion, ownership is immediately acquired of that increase which, by the force or even by the recession of water, is insensibly and successively added to an estate. C. I. 453, 454; C. G. 556, 557; C. H. 366; C. A. 411; C. L. 2290, 2291; L. 494. Except, however, places left by the sea, which are of the domain, and lakes or ponds of private persons, which, whether they increase or decrease, grant or confer no new right. C. I. 454, 455; C. G. 558. Avulsion occurs when a whole part of land, torn away by the force of a river, is joined to another estate. Ownership of this is not acquired immediately, but, possession of it having been taken, after a year, unless the owner has vindicated it for himself. C. I. 456; C. G. 559; C. A. 412. Cf. C. H. 368, 369; C. He. 659; C. L. 2292. Change of riverbed. If a river gradually recedes from one bank and invades the other, the place left belongs to the proprietors of the fields along the bank, with no damage repaid. C. I. 454; C. G. 557; C. H. 370. If a river, having left its whole natural bed, forms a new bed for itself, the former bed left behind is divided among the proprietors of the fields of both old banks. C. I. 461; C. L. 2293. Cf. C. G. 563; C. A. 409, 410. A new island born in the middle of a river likewise belongs to the proprietors of the fields of both opposite banks, provided that the river is not suited to navigation or to carrying goods; otherwise the island belongs to the State, unless a contrary title or prescription is present. C. I. 457, 458; C. G. 560; C. H. 371, 373; C. A. 407 ff.; C. L. 2294, 2295. Born; for if it was made from a river flowing around a field, it remains his whose it was. C. I. 460; C. G. 562; C. A. 408; C. H. 374; C. L. 2296.

Inst. 1. 2. t. 1. §§ 20-24.

Is ownership acquired by building, planting, sowing? Building, planting, and sowing are likewise certain species of accession in a matter of soil, made, however, through man's industry. Whatever is built, planted, or sown in the soil yields to the soil. For ownership of the land generally draws with itself whatever is placed above or below. C. I. 447, 448; C. G. 552, 553; C. H. 350, 358, 359; C. Ps. 946; C. He. 671, 673. Now he who has built, planted, or made other works on his own land from another's material must repay the price of the material to its owner, and if he acted in bad faith he must repair damages to the same owner. C. I. 449; C. G. 554; C. H. 360; C. A. 416, 417. But the owner of the material cannot vindicate it for himself if the built work would be destroyed or the planting would perish, from C. I. 440; and from C. G. 554, he simply cannot vindicate it for himself.

But if someone from his own material has built, planted, or made other works on another's land, C. I. 450; C. G. 555, the proprietor of the land has the right of retaining the works, or of obliging the other to remove them at his own expense and with damages repaid; but if the proprietor of the land prefers to retain these works, he must, according to C. G., pay their price, or, according to C. I., the increased value of the land. - But the proprietor cannot compel the removal of works made by a third party who has suffered eviction and who by reason of his good faith has been exempted from restitution of fruits; rather, he is bound to pay for them in one or the other way. C. I. 450; C. G. 555.

Cf. C. H. 361-364; C. A. 418; C. B. 946, 951. If finally some third party builds, plants, etc., on another's land from another's material, the owner of the material cannot vindicate it for himself, but can seek from that third party compensation for damages, and from the owner of the land the price of the material not yet paid, if he retains the building. C. I. 451. Cf. C. A. 419, 420; C. H. 365. From C. B. 946, 951, when a movable thing is so united to land that it becomes an essential part of it, the ownership of the land extends to that thing, with damage repaid to the owner of that thing; who, on the contrary, must make good the damage inflicted on the proprietor of the land, if he acted by an illicit act. L. 500, 501; Inst. 1. 2. t. 1. §§ 29, 30, 31, 32; C. L. 2304 ff.

What is adjunction, and is ownership acquired through it? - Adjunction or accession, specification, mixture or confusion, are species of accession in a movable thing. Accession here is not taken generically, for any union of thing to thing, but specifically, for a certain special union of things. Now adjunction, or accession specifically so called, occurs when two things are so joined together that from both one integral body is formed, namely because one thing is completed from the other, while nevertheless the substance of each thing remains distinct.

And thus adjunction or accession occurs by weaving, as if another's purple is woven into your garment; by insertion, as if another's gem is inserted into your gold; by writing, painting, etc. Adjunction or accession is governed by natural equity. C. I. 463; C. G. 565. But in whatever way the union is made, if the thing united belongs to another, and can be separated from the other without grave detriment, the owner of the accessory thing has the right of seeking separation, and each thing is to be returned to its owner, from C. I. 464; C. A. 414, 415; C. H. 378, as, for example, stakes joined to vines, tiles joined to buildings, etc.; but from C. G. 566 the whole belongs to the owner of the principal thing, with the price of the accessory thing paid.

But if the accessory cannot be separated from the principal, it yields by force of accession to the principal thing, but the owner of the latter is bound to pay the price of the former. C. I. 464; C. H. 375; C. B. 947, 948, 949, 951; C. He. 727. Cf. C. A. 415; L. 487. But accessory is that which is applied for the sake of adorning a thing, that which cannot stand per se without the other, that which is cheaper, that which is smaller. C. I. 465, 467; C. H. 376, 377; C. G. 567, 569.

But if the accessory surpasses the principal, it is in the power of the owner of the accessory thing either to vindicate the whole for himself, by paying to the owner of the principal thing the value which it has, or to take out his own thing, even though this cannot be done without detriment to the other thing. C. I. 466; C. H. 378; C. G. 368. Cf. C. A. 415; C. H. 379. And if the accessory altogether far surpasses the principal, then the accessory is held as principal and the craftsman can retain the whole, with the price of another's material repaid. C. I. 470; C. G. 561. - Finally, if neither thing surpasses the other, and one cannot be separated from the other, neither yields to the other, but to each owner his own thing remains, and the whole remains common to the owners.

C. I. 469; C. G. 572. From C. B. 947, 951, when two movable things are so united together that they become essential parts of a new thing, the prior proprietors become co-proprietors of this thing in proportion to the value of their own thing at the time of the union. If one of those things is to be considered as principal, its owner exclusively acquires ownership of the new thing, with damage repaid to the owner of the other thing; who, on the contrary, must repair damage to the other, if he acted by an illicit act. - Inst. 1. 2. t. 1. § 26; C. L. 2299 ff.

What is specification, and is ownership acquired through it? Specification is the introduction of a new form into matter. To have specification, although a substantial change of the thing is not physically required, nevertheless a substantial change is required morally; for example, if someone makes cloth from another's wool, a ring from gold, a ship from boards, wine, oil, or grain from grapes, olives, or ears. Whether the matter can be reduced to its prior form, or cannot be, the new species yields to another's material, with the price of the art employed being repaid. C. I. 408; C. G. 570.

If, however, the price of the industry far exceeds the price of the material, the craftsman can retain the species made by him, with the price of the material paid; and, if he acted in bad faith, he is bound besides to repair damages. C. I. 470, 475; C. G. 571, 577. - Therefore if a craftsman made a vessel from another's silver, the owner of the silver vindicates the vessel for himself, with the price of the workmanship repaid. If a sculptor made a statue from another's marble, he retains it for himself, with the price of the marble repaid. Gousset in C. G. 570, 571. From C. H. 383, the matter yields to the form, with the price of the matter paid, unless the value of the matter is more precious, or bad faith intervened.

From C. He. 726, the new thing belongs to the craftsman, if the labor is of greater value than the value of the material; otherwise it belongs to the owner of the material. From C. B. 950, 951, he who by his own industry so transforms several movable things that a new movable thing is produced acquires ownership of it, unless the value of the industry is notably lower than the value of the material; and then the rights in the preexisting material are extinguished. Nevertheless its owner must be rendered indemnified. Writing, drawing, painting, printing, and any other work performed on the surface of a thing are recalled to industry. L. 496; Inst. 1. 2. t. 1. §§ 25, 33, 34; C. A. 414, 415; C. L. 2302, 2303.

What are mixture and confusion, and is ownership acquired through them? - Mixture is the union of several solid things. But confusion is the union of several liquid things. - If the mixture or confusion is of several things of diverse kind, and a new species has been made from both, for example if mead has been made from honey and wine, to whom it ought to yield must be sought from the law of specification. If no new species has been made, and the things can be separated, he who did not provide assent to the mixture or confusion can seek separation.

If the things can in no way be separated, as the grain of Titius mixed with the grain of Caius, or cannot be separated without detriment to the things, the whole mass becomes common, in proportion to each one's portion and price. C. I. 471; C. G. 573; C. He. 727. Nevertheless, if the portion of one can be regarded as principal, or as much more precious, and the things cannot be separated, or not without detriment, for example if grain of the best quality has been mixed with grain of the lowest quality, or with rye, the owner of the former can retain the whole for himself, with the price of the other portion repaid. C. I. 472; C. G. 574; C. He. 727. Cf. C. H. 381, 382; L. 498, 499, 607, 608, 611, 612, 686.

And this Lugo, relying on Roman Law, L. Si alieni nummi 78. ff. de Solut., understands both as to coins and as to other things, whenever that which is added is less than the preceding thing to which it is added, and the admixture is made with the intention of acquiring ownership. D. 6. nn. 164-166. - Inst. 1. 2. t. 1. §§ 27, 28; C. A. 414, 415; L. 498. From C. B. 948, when two movable things are inseparably mixed or confused, the preceding dispositions of a. 947 are applied with due analogy. To the impossibility of separation is equated the case in which mixed or confused things would be separated only with excessive expenses. Cf. here 905.