Section 1: The Original Titles of Private Ownership

1. The right of ownership (dominium) is defined as “the permanent and exclusive right of retaining, controlling, and disposing of an object in one’s own interest and according to one’s own wishes.”¹ It is derived from nature itself and protected by the natural law.²

¹ Cfr. M. Cronin, The Science of Ethics, Vol. II, p. 113.—J. P. Gury, Comp. Theol. Mor., Vol. I, n. 533: “Ownership is the legitimate faculty of disposing of some thing as one’s own. Ownership is chiefly divided into perfect and imperfect, according as there is a right to dispose both of the thing itself and of its utility, or only of one of the two. Imperfect ownership, however, is subdivided into direct and indirect, that is, useful, according as it regards solely the ownership of the thing or solely its utility. They also commonly distinguish high and low ownership. The former is ownership improperly so called and is termed the right which the supreme authority has, for the gravest cause and for the good of the community, sometimes to dispose of the goods of private persons with due compensation, insofar as this can be done. The latter is the ownership of private persons, to which the definition properly applies.” Cfr. Pruner, Lehre vom Recht, Vol. I, pp. 248 sqq.

² Leo XIII, Encycl. “Quod apostolici,” Dec. 28, 1878: “The right of property and ownership, proceeding from nature itself, is sanctioned by natural law.”—IDEM, Encycl. “Rerum novarum,” May 15, 1891: “The right to possess things privately as one’s own has been given to man by nature. . . . The right of ownership which we have shown to have been bestowed by nature upon individuals must be transferred to man insofar as he is the head of a family. . . . Therefore, when relief for the people is sought, this must be held above all as a fundamental principle: private possessions must be preserved inviolate.”—IDEM, Encycl. “Graves de communi,” Jan. 18, 1901: “Therefore let nothing be more sacred to it [Christian democracy] than justice; let it command that the right of acquiring and possessing be kept intact.”

All ownership is based on some ground, usually called title. A title is a factor or an event by which a particular owner comes to have a right to his property. There is a variety of such titles, partly original or primary, partly derivative or secondary. An original title of ownership is one by which objects that belong to no one are appropriated, or by which existing private property is increased or improved. A secondary title is one based upon donation or legitimate purchase from a previous owner.

2. The chief original titles of ownership are: occupancy, accretion, and labor.

a) Occupancy (occupatio), the first and most primitive title of private ownership, is defined as the actual appropriation of ownerless objects with the intention to keep them as one’s own. This title of ownership (ius primi occupantis) presupposes that the object in question is by nature fit to become private property (res capax dominii privati). Hence it must not belong either to State or Church, nor be of such a nature that it cannot be occupied, e. g., the sea or air. Secondly, it must be actually ownerless, that is to say, it must never have belonged to anybody (res nullius), or, if it did, have been relinquished by the former owner (res relicta); third, the occupant must have the intention of acquiring the object as his own and of exercising the right of ownership in future. Fourth, the act of occupancy must be such as to convey to others some intimation that proprietary possession has been taken.³ This is usually done by some external act, e. g., in the case of a movable object, keeping it and turning it into something else; in the case of soil or real estate, by the act of cultivating it, fencing it in, setting out plants on it, and so forth.

³ M. Cronin, The Science of Ethics, Vol. II, pp. 139 sq.—Gury, op. cit., I, n. 558: “Occupancy is the actual taking possession of things which belong to no one. It is a legitimate mode of acquiring ownership, provided that the required conditions are present, namely: 1. That the thing be capable of private ownership and belong to no one; 2. That the occupant wish to make it his own and take possession of it; 3. That no law stand in the way of occupancy. The more frequent practical cases concerning this matter relate to the occupancy of animals.”

The principle that ownerless land in uncivilized countries may be occupied and thereby become private property is recognized by the law of nations.

The most common kinds of occupancy are: hunting (venatio), fishing (piscatio), and discovery (inventio). In civilized countries the right of hunting and fishing is regulated by positive laws and hence may not be exercised ad libitum, or if it is so exercised, entails the duty of making restitution for damage done. Hence the right of occupancy may be exercised:

α) In regard to ownerless objects (res nullius), e. g., wild animals (animalia fera) which have not yet become private property by the laws regulating the chase, or by being enclosed in parks or ponds; in regard to tamed animals (animalia mansuefacta) that have freed themselves from control; in regard to bees and pigeons which have lost their home, but not in regard to domestic animals (animalia domestica). The latter never become ownerless, even when they escape from their masters, except if they go astray, in which case they are to be treated as lost objects.

β) Abandoned objects (res derelictae) are objects which once had an owner, but were given up by him because he no longer cared for them. This category does not include property that has been abandoned because of impending danger, or from which the owner has been separated against his will, e. g., on the occasion of a conflagration or a flood; nor does it include tame animals that have gone astray. Occupation based upon the so-called right of salvage, therefore, is morally inadmissible.

Occupancy is “not of much practical account in modern civilized States, since all the land of the earth is now practically ‘occupied.’ And even such unoccupied territories as still remain, like Central Africa, have been divided in such a way that the right of extension allowed to each competing government is fixed by special treaties or understandings. The only cases in which occupancy is still to be regarded as an operative title are those of finder, fisherman, and hunter. Their rights are . . . decided by special civil enactments in each country.”⁴

⁴ Cronin, The Science of Ethics, Vol. II, pp. 142 sq.—Cfr. Gury, l. c., n. 559–563.—Pruner, Lehre vom Recht, Vol. I, pp. 283 sqq.

γ) Lost treasures (thesauri) are movable objects of value, such as coins, gold or silver vessels, etc., which have lain hidden so long that their legitimate owners can no longer be ascertained. The finder of such treasures has a right to keep them if he is the owner of the soil.

If the treasures are found by a third party, one-half belongs to the owner and the other half to the finder if the discovery was accidental, and the whole to the owner if the discovery was the result of an intentional search.⁵

⁵ St. Alphonsus, Theol. Mor., l. III, n. 602 (ed. Gaudé, II, 85).—Gury, Comp. Theol. Mor., Vol. I, n. 564: “According to Roman law, treasure is a sum of money hidden in the earth, of which no memory remains. According to French law, it is any thing hidden or buried which no one can prove to be his own and which is found by chance.” Cfr. ibid., n. 565–566.

If valuables are found concealed in a movable article, and the ownership cannot be established, the same principles apply. Thus if a man finds money in a piece of furniture belonging to him, it becomes his property; if the furniture belongs to another, the find should be divided half and half; if it has been purchased, the money belongs entirely to the purchaser. If the owner of a house destroyed by fire sells the remaining logs, and valuables are found therein, they belong to the purchaser; if a treasure is uncovered in removing the débris, it is to be divided equally between the finder and the owner of the property.⁶

⁶ Göpfert, Moraltheologie, Vol. II, 6th ed., pp. 116 sq.

δ) Finding a lost article (res amissa) out of the possession of its owner per se confers no title of ownership, but rather imposes the duty of returning the article to its rightful owner. If the owner is unknown, efforts should be made to find him, and meanwhile the lost article should be properly taken care of. If careful enquiry fails to locate the owner, the finder may, after a reasonable time, keep the lost article⁷ and is not obliged to reimburse the rightful owner who appears on the scene later, provided he has not become richer by his find. A finder who does not take pains to ascertain the owner of a lost article, is as bad as a possessor malae fidei and bound to make restitution.

⁷ St. Thomas, Summa Theol., 2a 2ae, qu. 66, art. 5, ad 5.—St. Alphonsus, Theol. Mor., l. III, n. 603 (ed. Gaudé, II, 86): “It is asked whether the finder of a lost thing, when the owner has not been found, may keep it for himself. There are three opinions. . . . The third opinion, which is truer and is to be followed, distinguishes and says: When, after diligence has been exercised, it is still possible to find the owner, then the thing or its value must be preserved. But if neither can be preserved, the thing or its value must be spent entirely on pious uses according to the presumed will of the owner, who still retains ownership of that thing whenever the thing can return into his hands. Conversely, when, in view of the circumstances of length of time or distance of place, or because the thing can no longer be recognized by the owner as his own, as happens with ordinary coins, it does not seem possible that it should return to the owner, then it becomes ownerless and is therefore acquired by the first occupant, who is not bound to dispose of it according to the will of the former owner, since through the impossibility of recovering it the latter has completely lost the right of ownership. . . . The reason a priori is that the law of nations grants private persons ownership of things for no other purpose than that they may use them. Hence, when it is impossible for the thing to come to their use, it becomes ownerless as though abandoned and returns to the primordial law of nature, and therefore belongs to the first occupant without any obligation.”

The American law on the subject is briefly stated as follows by Bolles: “The finder does not take title to every article found and out of the possession of its true owner. To have even a qualified ownership the thing must be lost, and this does not happen unless possession has been lost casually and involuntarily so that the mind has no recourse to the event. A thing voluntarily laid down and forgotten is not lost within the meaning of the rule giving the finder title to lost property; and the owner of a shop, bank, or other place where the thing has been left is the proper custodian rather than the person who was the discoverer. If a lost article is found on the surface of the ground, or the floor of a shop, in the public parlor of a hotel, or near a table at an open-air place of amusement, or in the car of a railroad, it becomes, as against the loser, the property of the finder, who appropriates it regardless of the place where it was found. . . . The law regards the possession of an article which is lost as being that of the legal owner who was previously in possession, until the article is taken into the actual possession of the finder. If the finder does not know who the owner is, and there is no clue to the ownership, there is no larceny although the finder takes the goods for himself and converts them to his own use. If the finder knows who the owner is, or has a reasonable clue to the ownership, which he disregards, he is guilty of larceny.”⁸

⁸ Putnam’s Handy Law Book, pp. 27 sq.—Gury, Comp. Theol. Mor., Vol. I, n. 566: “Question 4: What is to be done if at length the owner appears, when the thing has been expended or consumed in pious uses? Answer: (1) If the thing still exists, it must be returned to the owner, because wherever it is, it cries out for its owner. The finder, however, is bound, at least with slight inconvenience, to see that it can be restored, e. g., by warning the possessor or the owner of the thing himself; (2) If the thing has been consumed after sufficient diligence had previously been employed to find the owner, nothing is to be restored except that by which the consumer has become richer; (3) If it has been consumed without the finder having employed the necessary diligence, he is bound to repair the whole damage arising from its destruction.”—Cfr. A. Lehmkuhl, S. J., Theol. Mor., Vol. I, 11th ed., n. 1089 sqq.

b) Accretion or production (accessio sive productio) is that mode of acquiring ownership whereby something is gradually added to what is already one’s own,—either by some process of nature (accessio naturalis), as when animals give birth to young, or real estate grows by alluvial deposits; or, secondly, by human labor (accessio industrialis), for instance, planting, sowing, cultivating, and so forth, or, lastly, in both ways together (accessio mixta). Where no law or contract provides otherwise, the rule is that “accessorium sequitur principale.”

Whatever is sowed, planted, or raised on ground belonging to another, belongs to the owner of the soil, but he who did the sowing, planting, etc., if he acted in good faith, has a claim to indemnification. He who employs materials belonging to another for the manufacture, e. g., of a piece of furniture or a picture, is the owner of what he has made, but must indemnify the owner of the material used.⁹

⁹ Gury, op. cit., Vol. I, n. 580 sq.: “Accretion is a mode of acquiring ownership in some thing from the fact that that thing is added to ours and united with it. Accretion usually occurs in various ways, namely: 1. By birth, or when an animal conceived by a male belonging to another is born to us. He who has the mother has the right to all the animals born from her. Hence the maxim: The offspring follows the womb; 2. By alluvion, or when an increase by the force of waters is gradually added to someone’s estate. Ownership cannot, however, be acquired by sudden alluvion; 3. By adjunction, or when two things belonging to different owners coalesce in such a way that they cannot be separated; then the whole composite belongs to him whose material is superior in size or in value within the composite, but he must indemnify the other; 4. By specification, or when a new bodily form is fashioned by art from another’s material. Then, by Roman law, if the form cannot be returned to the former material, the thing belongs to the artisan, who is bound to pay the price of the material or compensate any damages; 5. By commixture or conjunction of two equally principal things belonging to different owners. Then, if the mixed things can be distinguished and separated, let them be separated; but if they cannot be distinguished, the thing will be common and must be divided in proportion to each one’s own quantity. Nevertheless, the owner of the superior material can keep the whole mass, due compensation having been made; but if the mixed things are altogether inseparable and approximately equal, the composite belongs to both owners in common and must be sold so that the price may be divided; 6. By building, or when a building is constructed from another’s material on one’s own land, or from one’s own material on another’s land. In general, ownership of the land draws with it whatever is placed above or below it. The building therefore belongs to him whose is the soil, upon due compensation. Almost the same must be said about planting and sowing. Hence the common verses: ‘Whatever is planted, sown, or built upon, all yields to the soil, provided, however, that it puts forth roots.’” Cfr. Pruner, Lehre vom Recht, Vol. I, pp. 293 sqq.

From what we have said it is plain that labor, too, is an original title of ownership. By labor is meant human industry, spiritual or corporal, suitable for producing goods. As the effect follows its cause, so does the fruit of labor belong to the laborer.¹⁰ Some writers, taking their cue from the so-called classics of political economy, have exaggerated the importance of labor by declaring it to be the only just title of ownership and reducing the occupation of ownerless property to labor as a title of ownership. This is a manifest exaggeration, for all labor deals ultimately with some pre-existing raw material. The work which a man does, gives him a right to the fruits of his labor, but the ownerless property that a man occupies is plainly not the fruit of his labor nor of his activity in taking possession of it.¹¹

¹⁰ Leo XIII, Encyclical “Rerum novarum,” May 15, 1891; English in The Pope and the People, London 1912, pp. 178–219.—J. A. Ryan, Social Reconstruction, pp. 68 sq.

¹¹ J. E. Ross, Christian Ethics, pp. 28 sqq.—Cfr. M. Cronin, The Science of Ethics, Vol. II, pp. 143 sq.; Jos. Biederlack, S. J., Die soziale Frage, 7th ed., p. 112, n. 1. Cfr. V. Cathrein, S.J., Moralphilosophie, Vol. II, 5th ed., pp. 313 sqq.

Authorship, too, entails a property right in the true sense of the term. The real object of this right is not the spiritual content, but the concrete and therefore palpable form into which that content has been cast and in which it is capable of mechanical multiplication. The usual rules governing property may therefore be applied to the products of authorship. The civil laws on the subject of copyright and patents bind in conscience.¹²

¹² J. E. Ross, Christian Ethics, p. 287.—Cathrein, op. cit., II, 323.—L. Geller, Das Gesetz betr. das Urheberrecht an Werken der Literatur, Kunst und Photographie, Vienna 1896.—J. Kohler, Urheberrecht an Schriftwerken und Verlagsrecht, Stuttgart 1906.—Drone, The Law of Property in Intellectual Productions, N. Y. 1910.—IDEM, art. “Copyright” in the Encyclopedia Americana, Vol. V.—A. Tanquerey, Synopsis Theol. Mor. et Past., Vol. III, pp. 18 sq., 1*–6*.

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 66, art. 2 (Rickaby, Aquinas Ethicus, II, pp. 53 sqq.).—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 582 sqq., 620 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 493–502 (ed. Gaudé, Vol. II, pp. 17 sqq.).—V. Cathrein, S. J., Moralphilosophie, Vol. II, 4th ed., pp. 301 sqq.—Schaub, Die Eigentumslehre nach Thomas von Aquin, pp. 343 sqq.—A. Vermeersch, S. J., Quaestiones de Iustitia, 2nd ed., pp. 240 sqq.—H. Pesch, S. J., Lehrbuch der Nationalökonomie, Vol. I, 2nd ed., pp. 189 sqq.—F. Hitze, Kapital und Arbeit und die Reorganisation der Gesellschaft, Freiburg 1880, pp. 99–145.—Th. Meyer, S. J., Institutiones Iuris Naturalis, Vol. II, pp. 126–201.—Castelein, S. J., Le Socialisme et le Droit de Propriété, Paris 1896.—J. Kelleher, Private Ownership, Dublin 1911.—D. Merino, Natural Justice and Private Property, Eindhoven (Holland) 1922.—M. Cronin, The Science of Ethics, Vol. II, pp. 113 sqq.—H. Parkinson, A Primer of Social Science, ed. by T. J. Shealy, S.J., N. Y. 1913, pp. 135 sqq.—V. Cathrein, S. J., s. v. “Property” in the Catholic Encyclopedia, Vol. XII.