§ 1. On the Occupation of Animals

Animals are of a threefold kind: some are wild or become wild, which enjoy natural liberty, as hares, birds, fish; or, although tame, have altogether recovered that liberty; - others are tamed or domesticated by training, which are deprived of liberty by the industry of men, so that, although they go out, they are always accustomed to return, as bees, doves; - others are tame or domestic, which by their nature use the society of men, as oxen, sheep, hens, etc.⁰¹

879. Principles. I. Wild animals or those become wild become the property of the first occupant. For things that belong to no one are licitly occupied by natural law.

Hence: 1. A nest occupied by you, even on another's land; animals reduced for a time into someone's ownership, if they have resumed primitive liberty (i.e. if they have escaped custody in such a way that their pursuit becomes difficult), pertain to you, by natural law, when you have occupied them.

2. He who kills wild animals enclosed by a wall or hedge; he who takes fish, oysters, etc., from a fish-pond or pond well closed, and a fortiori from another's net, commits injustice: for he occupies tamed animals. Lugo, l.c., n. 72.

3. A wild animal or bird wounded or ensnared on open land pertains to the one wounding or to the one setting nets, if it is certain that it could no longer escape; but it pertains to the one catching, if struck by a light wound or impeded by a light bond it could escape, or had already been abandoned by the hunter; finally it pertains to both, and is to be divided according to the proportion of hope, when the matter is doubtful.

It is asked: Whether laws that regard hunting and fishing oblige?

Resp. 1. Of these laws, some refer to external regime and good order: for example they determine at what time, or with what instruments, hunting or fishing is permitted. These laws (except those that protect the multiplication of wild animals) are merely penal (I, 145).

2. There are others that refer to the protection of another's right: for example a law prohibiting you from entering an enclosed field to place a snare, lest you cause damage. These laws oblige by force of natural law, and cannot be violated without lesion of commutative justice.

If, however, the fenced land is of great extent, take the gravity of damage from the hope that the owner had of catching wild animals.

3. Besides, other laws protect the right of hunting or fishing in an open place, conceded exclusively to someone by force of contract, for example of lease; and these bind by the same justice so that someone cannot be deprived of that right legitimately acquired. But he would be deprived of his right if others caught or destroyed such a multitude, for example of fish in a river conceded exclusively to him, that the right of fishing would thereby be notably injured. But the damage inflicted must be estimated not from the quantity of fish caught, but from the probable profit that on this account ceased (III, 605, 614; Konings, 644; Noldin, II, n. 388).

Note. a) A lessor of this kind, since he has the right of accusing delinquents, can accept money from delinquents, so that he desist from denunciation.

b) An illegitimate hunter makes animals his own (if they are in small number), unless some civil law opposes (cf. German Law, 958). Let the confessor always remember that the lessor is always held to avert damages from neighboring possessions. Therefore let him not easily condemn a farmer who, by making some wild animals his own, compensates himself.

4. Finally, there are laws that concede the right of hunting by way of mere privilege (for example if it has been conceded to nobles), or of mere license, even if it has been obtained by money. These laws bind in no way from strict justice, and there is no place for restitution (Lessius, l. 2, c. 5, n. 44).

880. II. Tamed animals remain the property of the prior owner, as long as they have not escaped his custody, or have not lost the custom of returning. For these pertain to the possessor, both by reason of occupation and also by reason of education and detention. - But otherwise, if they have escaped custody, etc.; for in such a case they have recovered their connatural liberty, and therefore become the property of the first occupant, provided that their escape is not procured by fraud, or their return to the possessor impeded.

Particular laws do not define in the same mode the time and other circumstances from which doves, bees, etc., are judged to have escaped the custody of the prior owner in such a way that they can be licitly occupied by another.⁰² At the time of harvest and sowing, doves inflict notable damage; hence they can licitly be killed by the owner of the land on which they are found.⁰³ - The law that in France adjudicates a swarm of bees to the owner of the land on which they settle, when the proprietor no longer pursues them, does not oblige before the sentence of a judge (Gousset, in art. 715). Cf. German Code, 833.

881. III. Tame animals remain the property of the prior owner, however much they wander. Hence, even when dead, they cannot be occupied by others, and natural fruits perhaps perceived from those occupied (for example milk, eggs, wool, etc.) must be restored.

But indeed: 1. if they inflict damage, the owner is held to repair it, insofar as theological fault or the sentence of a judge has intervened; - 2. if they are judged totally lost or abandoned, there is place for finding (cf. n. 886); - 3. if they are freed from danger, for example from a fire, there is place for a just stipend, but of themselves they must be restored. Cf. below n. 884.