§ 2. On the Occupation of Things Found

Goods that can be found are reckoned of a fourfold kind, namely treasures, abandoned goods, vacant goods, and things recently lost.

882. Notions. Treasure, in the new Codes, is generally called: any thing whatever estimable by price, hidden or buried for a long time, which is found by chance and which no one can prove to be his own.⁰⁴

If therefore the owner of a hidden or buried thing could be found, the thing would not have to be held as a treasure, but as a lost thing. - Similarly, if it could be proved that the thing had been put away there by the actual or prior possessor. Cf. the case apud Ami du Cl., 1910, p. 203. Metallic or coal veins are not equated with treasures.

Abandoned goods are things that the owner has rejected, with the intention of renouncing ownership of them. Of this kind are grapes, chestnuts, ears of grain, etc., which remain after the fruits have already been gathered.

Vacant goods are called those that are left by one intestate, to whom no heir according to law succeeds, or wishes to succeed.

Lost things are those that the owner has lost involuntarily, and that for this reason are judged still to have an owner.

883. Principles. I. Treasure, from natural law, becomes the property of the first occupant. For it is judged to be a thing belonging to no one.

From positive law: Treasure found by the owner of the land himself belongs wholly to him. But found by chance on another's land, it is to be divided equally between the owner of the land and the finder; found in a public place, it is to be divided between the finder and the fisc, if namely the place was profane; but if it was sacred, between the finder and the fabric or prelate; and authors commonly teach that such division obliges in conscience. If the finding was made deceitfully, not only must half the treasure be restored to the owner of the land, but the whole treasure, as penalty for the delict of the finder, must be restored; nevertheless not before the sentence of a judge. Thus French, Italian, Austrian, Spanish, German Law, etc. (cf. St. Alphonsus, III, 602; Code, l.c.). - English Law adjudicates all treasures to the king or state. But, Crolly testifying (I, n. 642), that law does not oblige before the sentence of a judge, for it is merely penal.

It must be observed: 1. He is the finder of a treasure who uncovers it and renders it visible, or even who sees and apprehends it, but not he who only sees it after it has been uncovered by another. Wherefore if some servant, in the presence of his master, labors and renders the treasure visible and apprehends it, the master would retain such a treasure unjustly, because he is not the finder.⁰⁵ - 2. If some owner, suspecting a treasure, hires a wage-earner to seek it, not the wage-earner, but the owner is judged to have found it. - 3. He who buys a field at the common price, drawn by suspicion that a treasure lies hidden in it, commits no injury. But otherwise, if after he has by chance found a treasure on another's land, he covers everything again and buys the land, lest he be compelled to divide. Thus theologians most commonly, although others think otherwise. - 4. According to the more recent Codes, it matters little whether the treasure was found in a movable or immovable thing, for example in a garment or in the corner of a house, provided it is certain that it is truly treasure, i.e. a thing not pertaining to such a person or to such a family (Gury, n. 577, q. 2).

884. II. Abandoned and vacant goods belong to the first occupant. Thus from natural law, because they belong to no one.

From positive law, these goods can pertain to the state. And in fact, in several kingdoms, the goods of him who died intestate, and to whom neither wife nor other blood relatives up to the tenth degree are surviving, devolve to the fisc.⁰⁶ Likewise, from positive law part of a gold, coal, etc., vein is ascribed to the state.

Of themselves, things cast away, or left in danger, are not to be reckoned among abandoned things: for no one is presumed to renounce ownership of his own things as long as there remains hope of recovering them. - Yet he who has rescued things from danger retains the right to the price of his industry.

Hence: 1. Goods found on the shore after shipwreck cannot be held as abandoned; things saved from a fire (even with some danger or labor); wood that in a flood is carried from one place to another; another's sheep snatched by your dog from the jaws of a wolf, etc.

2. But a thing can be held as abandoned if it is prudently judged: a) that the owner is no longer solicitous concerning it, for example because he is too far distant, or because the thing is of small moment (as nuts, grapes, remaining after the fruits have already been gathered [cf. n. 910, 5]); - or b) that he has lost every reasonable hope of recovering the thing

whether by himself, or through another: hence little stones, gems, coins, which are found at the bottom of a river, belong to the first occupant (cf. Lugo, l.c., n. 99; Ami du Cl., 1907, p. 183, 844; 1910, p. 349; Lehmkuhl, Cas. consc., I, n. 601 seq.).

885. III. Lost things, if they are found, must be restored to their owner. The reason is that the thing cries out for its owner, nor does the adverse fortune of him who lost it effect that it cease to cry out. Hence St. Augustine: "What you found and did not return, you have seized."

A manifold obligation can arise from the finding of a thing.

1. He who finds it is held from charity (unless grave inconvenience excuses) to take care of it upon himself, if otherwise it would perish for the owner.

2. He who has apprehended a lost thing is held, from justice: a) to take care of it, and to guard it from the quasi-contract that is called management of another's affairs; - b) not to conceal it, but to employ suitable and proportionate means (or those determined by civil law), so that knowledge of the thing existing with him can come to the owner. If he has deliberately neglected these, he is certainly held to restitution.

3. The owner of the lost thing is held, from justice: a) to reimburse to the finder or holder all those expenses that were made both that the thing might be preserved and that the owner himself might be found; - b) to give that remuneration which either he himself freely promised, or civil law established.

Note. Civil law, for only things of greater moment exceeding 4 francs, indicates the means to be employed so that the owner can thus be found. - Of themselves, no obligation in conscience urges to employ these. - Yet if the finder has neglected them, the owner of the lost thing is not held to give the remuneration indicated by law, although the finder of the thing claims it.⁰¹

886. It is asked: What if, diligence having been made, the owner of the thing is not found?

Resp. Dist. 1. If no hope of finding the owner remains (which must be judged either from the determination of civil law, if it is present, or from circumstances of time, distance of place, or impossibility of recognizing the thing, as happens in ordinary coins), the finder can retain the thing for himself, even if the owner appears afterward, because then it is held as abandoned; and it is only counseled that he give it to the poor.

Note. If, however, law attributes to an appearing owner the right of reclaiming the thing after some time, and the finder has omitted the legal modes of detecting the owner, restitution must be made to the owner, even if on the part of the finder moral diligence for seeking the owner was present (see Code, l.c.).

2. If some hope remains, the thing must be preserved for a suitable time; or if it cannot be preserved, its price must be preserved. But if neither can be preserved, or the thing cannot certainly be transmitted to the owner, it must be expended for pious causes.⁰² The reason is that, while such hope lasts, the owner preserves ownership of the thing, and therefore that thing is to be expended according to his presumed will. Cf. also those things that will be said in n. 999.

But to the owner appearing after the thing has been handed over for pious causes, if it exists in equivalent and has not been prescribed, it must be restored by the poor person or by the one having it; for such handing over seems to include this condition: unless the owner becomes known. Thus St. Alphonsus with St. Thomas, Lugo, etc., against others thinking otherwise (III, 589 seq.; H. Ap., X, 69).

From these things you will resolve: a) A maidservant of an inn who, while sweeping the tavern, finds some coins, when there is no hope, namely on account of the great crowd, that the owner will be found, can retain them for herself. - b) He who retains animals wandering from their owner, diligence for finding the owner having been omitted, is guilty of injustice; and thereafter, if the owner cannot be found, or he himself cannot reveal the thing without infamy, because of omitted diligence he must expend the price for pious causes (Konings, n. 656).

Note. Whether and how the goods of absent persons can be occupied, see in the Codes themselves.⁰³