point — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Point I. On Occupation
- Occupation is the real apprehension of a thing which belongs to no one, with the intention of acquiring it for oneself. It is a legitimate mode of acquiring dominion, provided the required conditions are present, namely: 1. that the thing be capable of private dominion and belong to no one; 2. that the one occupying wishes to make the thing his own when he apprehends it in fact; 3. that no law stands in the way of occupation 1.
1 Yet if a wild animal has been caught by a snare which someone placed against the will of the owner of the estate, the owner seems able to take possession of the prey; the reason is that just as he has the right that you not enter to place the snare, so also that you not enter even to take out the wild animal. Therefore he himself could release the wild animal; but plainly he can occupy it when it is to be released. Therefore.
The more frequent cases in practice regard the occupation of animals; therefore there will be speech of this alone. But animals are distinguished as of three kinds, namely wild, tame, and tamed. 1. Wild or savage animals are those which enjoy natural liberty and are subject to the dominion of no one, such as hares, deer, fish, birds, etc. 2. Tame or domestic animals are those which do not enjoy natural liberty and which are subject to the dominion of men, such as sheep, horses, hens 2, etc. 3. Tamed animals are those which are indeed born for natural liberty, but are deprived of this by man's industry and are subjected to his dominion, such as birds which become tame by art and industry, doves, bees, etc. 3.
2 The diversity between wild and tame is more aptly sought from the disposition which enjoys or shrinks from human association. For otherwise even wild animals are found which do not enjoy liberty, and tame animals which do not have an owner.
3 A fourth class is constituted by animals become wild, which either have cast off their connatural tame disposition, or have resumed their former wild one after they had been tamed.
- Principles. I. Wild or savage animals 4 become the property of the first occupant. For things which belong to no one are lawfully occupied by natural right, and therefore become the property of the first occupant, at least unless some positive law prohibits this. But once reduced into the dominion of someone, they remain under dominion so long as they are retained by custody, and have not recovered natural liberty. But they are judged to have recovered liberty when they have so escaped custody that their pursuit is difficult; and then they so cease to be under dominion that they can become the property of another occupant, as if they had never had an owner.
4 Reiffenstuel (Theol. Moral., tr. 7, dist. 5, q. 1, n. 5) better expresses this third condition, which a few add, thus: "Unless by some human law their dominion is applied to some other." You have an example of this (with the Author, n. 576, III) in goods which are called vacant. For their occupation is customarily reserved by positive right to the public treasury. I said that this condition is better expressed thus; for even according to what the Author says shortly (n. 571), mere prohibition of law does not impede dominion from being acquired through occupation.
II. Animals wild by their own nature, but tamed, remain the property of the prior owner, so long as they have not evaded his custody or lost the habit of returning; for animals of this sort belong to the possessor both by reason of occupation and also by reason of education and detention. Thus, moreover, all laws establish. - But if they have evaded the custody of the owner, or have lost the habit of returning, they become the property of another first occupant, because they have recovered their first nature. Thus Roman and French Law.
III. Tame or domestic animals remain the property of the prior owner, however much they wander; hence they cannot be occupied by another. The reason is that domestic animals can never be said to have recovered their liberty, since by their nature they are judged to have no liberty. Therefore as to these there can never be place for occupation.
- Questions. Q. 1. Whether and how does he sin who hunts or fishes against the prohibition of law?
Resp. The first probable opinion denies that he sins against justice 5, or even against obedience; because from custom and from the common estimation of men that law seems altogether penal 6. - Thus Roncaglia, tract. 13, c. 5. - St. Lig., De Leg., n. 145, etc.
5 This man does not sin against justice, and, as Lugo says (De Iust., disp. 6, n. 65), the common opinion of the Doctors is that a hunter acquires dominion of the wild animals or fish which he takes. The reason is that those wild animals are still in the goods of no one and remain in their liberty; and therefore they become the property of the first occupant.
6 Here, as is clear, the speech is not about canonical laws which interdict certain hunts to clerics.
The second opinion, likewise probable, holds that he sins only venially against obedience, but in no way against justice. For 1. he sins against obedience, because one must always obey the Prince commanding from a just cause. 2. He does not sin against justice, because the laws, although they prohibit hunting, nevertheless do not declare the acquisition of the prey invalid. 3. He sins only venially per se, because generally such violation of law does not seem gravely harmful either to the Republic, which does not suffer great detriment from it, or to private persons in whose estate the hunting is done. - Lugo, disp. 6, n. 64. - Bouvier, De Iust., c. 2. - Carrière, n. 301. - Lyonnet, etc.
There is also a third opinion of a few, who say that one hunting when law forbids sins gravely both against obedience and against justice 7; but it is commonly held as less probable.
7 These authors judged that justice is injured not on account of the prey captured, but on account of the injury inflicted on him who has so great a right of keeping anyone from entrance into the place that he can even impede them by force. Nor do they suppose a mere prohibiting law, but besides this an exclusive right of hunting or fishing made to someone. Moreover, according to the same authors, that violation of justice brings on no obligation of restoring unless by another reason some damage has been inflicted.
- Q. 2. Whether he sins against commutative justice who hunts or fishes on another's estate without his permission?
Resp. 1. Negatively, if that estate is passable; for no sin is committed unless from this some other damage comes; the reason is that wild animals are by no means to be held as fruits of the estate.
Resp. 2. Affirmatively, if the estate is entirely enclosed, so that the wild animals cannot go out from it and can easily be caught there; because these are then judged to have lost their liberty and to belong to the owner of the estate. - Lugo, disp. 6, n. 72.
Q. 3. Whether the owner of the estate can take prey killed by another, or impede it from being taken by him?
Resp. Negatively to both; because although the owner has the right of preventing another from hunting on his estate, nevertheless a killed wild animal belongs to the killer 8. Yet the owner has a right to compensation for the damage which perhaps the hunter has brought in. - Lugo, n. 70.
8 Understand those which enjoy natural liberty, as the Author said. But they are judged to enjoy this when they can wander at will, as deer in the forests, fish in the sea, etc.
- Q. 4. Whose is a wild animal wounded or caught by a snare?
Resp. to the first: It belongs to the one wounding, if he has wounded it enough for taking it, and is morally certain that he will easily apprehend it; for thus he has already morally apprehended it. - St. Lig., Hom. apost., n. 71. - Lugo.
Resp. to the second: It belongs to him who placed the snare, if it has been so caught by the snare that it will not escape; the reason is that it is sufficiently occupied through the instrument itself. - St. Lig., n. 604.
Q. 5. Whether someone can kill another's doves harming his field?
Resp. 1. Negatively, if they do not cause grave damage, or if they can easily be driven away. - Thus commonly.
Resp. 2. Affirmatively, according to the common opinion, if they gravely harm; because it is lawful for everyone to preserve his own thing, even if from this there indirectly follows to another a damage equal to that which he directly wishes to avert from himself. But doves are not presumed to harm gravely except in the time of harvest or seeds. - Lugo. - Billuart. - Elbel.
Q. 6. If someone extracts another's sheep from the mouth of a wolf, can he make it his own?
Resp. Negatively, because the sheep even in the mouth of the wolf "cries to its owner," that is, it continues to be in the dominion of the same, even if certainly to be lost unless it is saved by another. The same must be said of him who extracts any thing whatever from a burning house, even if it would certainly perish there. Yet if he had suffered some damage, he could exact compensation for this, unless the damage exceeds the value of the thing.
- Resolutions. 1. A swarm of bees which has flown out from your hive is yours so long as it remains in your sight, and its pursuit has not become difficult for you. Otherwise it becomes the property of the first occupant. Under French Law it belongs to the owner of the estate in which it has settled.
- Doves fleeing of their own motion, without having been attracted by fraud, become the property of him in whose dovecote they fix their seat. Otherwise, if they have been attracted by fraud, for example, by food altogether extraordinary or very choice. - Lugo, d. 6, n. 42, etc.
- A hunter going beyond his own boundaries and going into nearby places of others does not ordinarily sin; because the neighboring proprietors know this, and themselves do the same in turn, content with the fine if they are caught. - Reuter.
- He who bought from the Government the right of fishing in some river cannot be deprived of that right without injustice; hence he would be bound to compensate the damage inflicted who would catch or destroy so great a multitude of fish that he would notably injure the buyer's right. But otherwise, if he caught not so many fish; because the right of the lessee is not thereby rendered less valuable, nor does it rigorously touch individual fish, since these can leave the place, or are not certainly to be caught there. - See Casus, n. 510 and following.
In France the Government leases the right of fishing in navigable rivers. In the others this right belongs to the adjoining proprietors. Everywhere, however, fishing with a cast-line is lawful.