Article I: On Occupation

203. Occupation is the real apprehension of a thing which belongs to no one, with the intention of making it one's own. Therefore four conditions are required so that occupation may be a legitimate mode of acquiring: two on the part of the object: a) that the thing be capable of private dominion, that is, not common (as air) nor belonging to public dominion (as the main roads); b) that the thing occupied belong to no one, whether vacant or abandoned: for if it has a legitimate owner, occupation of it, when the owner is reasonably unwilling, is unjust; and two on the part of the subject, namely, c) that by a voluntary and external act the thing be truly and really apprehended (the intention of taking is not sufficient); this apprehension, however, can be physical (concerning movable things) or moral (by manifesting the will externally), according to the nature of the thing, or custom, or the civil laws: a wild animal is occupied in one way, a wood in another, a meadow in another; d) that the one occupying have the intention of making the thing his own, and that this intention be externally manifested; otherwise it can neither be known nor proved, and therefore cannot oblige others. Therefore, in order that someone acquire dominion of a place, a house, or a garment, it is not sufficient that he have the intention of passing through the place, or spending the night in the house for a few days, or returning to the owner the garment which he takes; that apprehension may be made for stable possession, there is required a sign known to others and enduring, impressed upon the thing, as the cultivation of land, or a hedge drawn around it.

Since now there are entirely few things belonging to no one, and since for the most part it is determined by civil law whose vacant goods are, today the right of occupation is greatly limited; nevertheless there are still various occupations, of which the chief are: 1) occupation of animals by hunting, fowling, and fishing; 2) extraction of mines; 3) gathering wood and pasturing; 4) also, in some measure, seizure of booty during war.

204. I. Occupation of animals regards three diverse genera. They are distinguished:

a) wild or sylvan animals, which by their nature naturally shrink from human association and are accustomed to be constituted under no one's dominion, nor could they be brought into dominion by human industry, and therefore by natural force enjoy free wandering and have no owner, as lions, eagles, vultures, stags, hares, fish, etc.;

b) tamed or domesticated animals, which by nature flee from human association and live of themselves in liberty, but by human industry are deprived of liberty and have been reduced under the perfect dominion of man, such as doves returning to a dovecote, bees in a hive, rabbits in a warren, and wild animals or fish enclosed in places from which they cannot escape;

c) tame or domestic animals, which by their nature incline toward human association in domesticity, and have become so accustomed to the society of men that they are not accustomed to flee from the power of the owner, but to serve domestic uses, for example, sheep, cattle, horses, hens, dogs, etc.

205. Concerning the occupation of wild animals the principles to be attended to are:

1. Wild or sylvan animals which enjoy their native liberty become the property of the first occupier: for they are things of no one, and therefore they become the property of the first taker or occupier; but they are occupied when they are so constituted in the power of man that morally they cannot escape.

2. Those which have recovered their liberty are again no one's, because the sole bond by which they have connection with the owner is broken; but they are judged to have recovered liberty when they have escaped and the owner no longer follows them nor intends to recover them [misprint in original: incendit], or when there is not for him a probable hope of recovering them, because pursuit has become morally impossible.

3. Sylvan animals do not belong to the owner of the land, unless the land is so enclosed that morally they cannot escape, and at the same time is not so very extensive that they are taken with equal difficulty as in an unenclosed place: under these conditions they have already been morally taken by the owner.

Hence a) a wild animal so wounded or entangled in a snare that it cannot escape is already sufficiently occupied, and cannot justly be apprehended or retained by another;

b) a wild animal wounded or entangled which can escape, or which the hunter has ceased to pursue, enjoys its liberty and can be retained by the first taker;

c) nevertheless, a wounded wild animal which flees onto another's land, if by civil law the owner of the land can prohibit the hunter from taking the wild animal there,¹ can also probably be taken by the owner; if nevertheless it is taken there by the hunter, it is certainly his, unless somewhere civil law should invalidate the occupation;

¹ Thus, for example, French and Belgian law. - According to English law, sylvan animals belong to the owner of the land on which they were hunted and killed; if they were hunted on one field and killed on another, the first owner is preferred, if he claims the animals. By American law, sylvan animals belong to the owner of the field in which they are or are killed; hunted on one field and killed on another, they belong to the hunter, but he must satisfy both for usurpation of the field; but fugitive animals are held as abandoned, unless the owner at once pursues them. By Spanish law, from art. 37 of the law of May 18, 1902, on hunting, a hare killed in another's field belongs to the killer; from art. 38, however, it is divided if it is started up by one and killed by another.

d) he who hunts on perfectly enclosed land sins against commutative justice, because he steals animals rather than occupies them; and he is held to restitution at least according to the hope of capture and of profit ceasing, which the owner could have expected, or for the animals which the owner himself could otherwise have taken; and at the same time he must repair all damages brought upon the land from this. But he who hunts on open land is not held to restitution, unless sometimes by accident he has brought damages upon the land;

e) fish which live in the sea or in greater rivers belong to the first occupier because they enjoy liberty; but those which are in lesser rivers or in ponds (unless it is a very great lake) belong to the owners of the banks, by whom they can easily be taken.

206. Concerning the occupation of tamed animals the principles to be attended to are:

1. Tamed or domesticated animals of themselves remain in the dominion of him who legitimately possesses and guards them, and with whom they are accustomed to remain or to whom they are accustomed to return, because by that very fact they are subject to his power.

2. Nevertheless, if they obtain liberty, they are things of no one and become the property of the first occupier; but they have recovered liberty when they have escaped custody and have definitively lost the custom of returning: thus, for example, doves, fish, and rabbits not returning for a notable time; because by that very fact the bond by which they were bound to the owner is broken.

3. It is unjust to turn them away from the owner by unjust means, as by frauds and devices, and to attract them to oneself, in order to take them, or to detain them violently, for example by enclosure.

Hence a) he plainly commits injustice who takes fish from a fish-pond, oysters from a park, wild animals and birds from enclosed places;

b) doves which so betake themselves to another's dovecote that they have lost the intention of returning and are not claimed in time by the owner pass into the dominion of another; nevertheless, by fraud and device (for example, by nets or snares set out, or by feed much more choice than is usually given), another's doves would be unjustly enticed into one's own dovecote and detained there;

c) but if another's doves gravely harm fields, and damage cannot easily be averted by another means, of itself it is licit to kill them and to take just compensation therefrom, especially if the owner is unknown or can only with difficulty be warned; unless notably greater damage would be brought upon the owner. Moreover, at the time of sowing and of harvest they are presumed by civil law to harm gravely (law of Aug. 4, 1789);

d) bees whose swarm has escaped remain, by natural and civil law, under the power of the owner as long as he does not cease to follow or claim them; if he has ceased, they belong to the first occupier, or, if this is lacking, to him who has the ownership or use of that place on which the swarm has settled. Thus the Belgian law in the Rural Code, Oct. 7, 1886, a. 14. If the owner does not pursue, by German law they are judged things of no one and become the property of the first occupier; on the contrary, by French law they belong to the owner of the land; by Swiss law they remain with the owner, unless they have joined themselves to another's hive; by Italian and Spanish law, unless within two days the owner has pursued them, they become the property of the possessor of the land taking and retaining them, and for domesticated animals, after 20 days.

207. Concerning the occupation of domestic animals the principles to be attended to are:

Domestic animals, even if they have withdrawn from custody and have wandered far away, remain under the dominion of him to whom they belong: for by natural disposition they do not have native liberty, and therefore they are the object of permanent dominion; and they remain constituted within the moral power of the owner, nor is the moral bond by which they are bound with the owner broken as long as it is not impossible to recover them.

Hence a) if they have been lost, of themselves they must be restored to the owner, for example, a sheep wandering far away, even if they have been rescued from death by the industry of the occupier, for example, from shipwreck or fire;

b) if dead or partly destroyed, they must be returned to the owner, for example, a hen seized by a dog, a sheep by a wolf;

c) if they cause damage, their owner is held to compensate it (C.C., a. 1385); indeed they can be killed by the owner of the land, as long as they are on the land itself, if damage cannot otherwise be prevented and that damage is notable.²

² Thus in Belgium, also for rabbits and wild boars, from a. 6 and 7 of the law on hunting.

208. Concerning violation of civil law about hunting or fishing, it must be noted: of itself he probably does not sin who hunts or fishes in open places against the prohibition of civil law alone, for example, if he has not purchased the faculty of hunting, or hunts at a prohibited time or with a prohibited instrument: not indeed against commutative justice, because he occupies a thing of no one; nor against obedience or legal justice, because by custom such laws are considered as merely penal, as those which regard only external rule and order, nor is there sufficient certainty concerning the contrary intention of the legislator, at least in many regions.³ Yet by accident such hunting can be illicit and sometimes unjust:

³ Unless, as it seems, for Germany, because art. 958 of the German code denies acquisition of dominion to an illegitimate hunter.

1. illicit, by reason of the state of the person hunting, as of a religious, or of a cleric (for whom noisy hunting is prohibited); by reason of the danger to which the hunter exposes himself, for example, of exposing health, neglecting family affairs, incurring grave penalties with detriment to the family (and then it is against charity toward himself and his own); by reason of intention, for example, because he is prepared to resist violently those who by office are held to apply the law, and to wound or kill forest guards (and then the intention is unjust);

2. unjust, by reason of the damage which is brought upon the owner of the land, for example, by destroying crops, or of the damage which is brought upon him who has purchased the right of hunting, for example, by hunting too frequently or out of season: for then the right becomes notably cheaper. In which case the hunter must restore, not indeed the whole value of the animals taken, because he who buys the right of hunting is not the owner of the animals, but only acquires the right of hunting with impunity, but according to the hope of capture which he would have had to whom the right of hunting belongs.

209. II. Concerning the occupation of mines, especially of fossil coal and veins of metal, many of the Scholastics taught that by natural right they belong to the owner of the land, because they are an accessory part of the land, since it does not consist in the surface alone, but in the whole depth, indeed even to the center of the earth, and therefore the owner of the land has the power of receiving fruits from it. Nevertheless, several contradict this, as D. Soto and Lessius do for metallic veins, and today all jurists, who rather hold subterranean things as things of no one which become the property of the first occupier, at least if they are enclosed not near the surface but more deeply. And indeed he who occupies the surface does not seem by that very fact sufficiently to have apprehended the whole subterranean depth.⁴ This, when the present necessities of human industry and the conditions under which mines can perfectly serve the utility of men are considered, is understood still better.

⁴ "Veins which lie deep in the earth, so that they can be worked while the soil is untouched, in reality are not thereby occupied because you have built on the soil or have begun to cultivate a field. For you neither exercise dominion over these nor have you thought of receiving any utility of this kind also from the thing. Therefore they are things of no one, until by digging you have effected that your occupation may lie open to those veins." Thus Vermeersch, Quaestiones de Iustitia, n. 218. - To others it does not seem equitable to consider a precious thing, as a vein of gold, as an accidental part of a thing of much smaller price.

For 1) many are situated under the earth so deeply that in certain places they are distant from the surface by more than 1000 meters; and therefore where surface properties are somewhat divided, it can scarcely be discerned to what determinate part of the surface they correspond.

2. The direction and extension of those veins is so irregular and uncertain that a new difficulty arises from this in referring them to the part of the surface which corresponds to them, and the simultaneous acquisition of several veins would have to be necessary.

3. Much knowledge and great expenses are needed so that they may be acquired, of which the private owners of those parts of the surface which correspond to the veins are scarcely capable.

4. Their acquisition can greatly contribute to the public good, because today it is of very great importance for such a good that metals and fossil coal be had easily and abundantly.

5. Many dangers inhere in the acquisition of those veins, both for those acquiring and for the buildings on the surface; which demands the intervention of public authority.

If these things are kept before the eyes, no argument seems to be made from which it may be concluded with certainty, according to natural right, that the owner of those veins is either the State, or the finder, or the owner of the surface to which the veins correspond; indeed not even he who would occupy them and at the same time would have means sufficient for the best acquisition. Hence the matter seems rather to be determined by positive human law, with the public good considered.⁵ But if the opinion which holds that natural right attributes dominion to the owner of the land has pleased so many Scholastics, this proceeds from the fact that they very much had before their eyes veins which were not far distant from the surface and which could be considered almost as an integral part of the land.

⁵ This conclusion is confirmed from the history of legislation: for no constant legislation appears determining to whom dominion belongs. Only one thing appears, namely, that always and everywhere some interference in the administration of veins of metal and of coal was attributed to the State or ruler.

For the sake of example, in Belgium, the civil law which was established on April 21, 1810, May 2, 1837, and June 5, 1911, perfectly distinguishes between mines (mines; mijnen, bergstofwerk, bergwerk) - and metallic strata brought by alluvion (minieres; ertsgroef) - and quarries and combustible earths (carrieres et tourbieres; steen-, kalk-, zand-, mergelgroef, en veenderig, veengrond of turfland), which both are on the surface.

A. As to quarries and combustible earths, the law confirms the right of nature, according to which they belong to the owner of the land in whose surface they are found (a. 81-83).

B. As to metallic strata brought by alluvion, it confirms the right of the owner of the land set forth in what precedes; nevertheless, on account of the common good, it establishes certain particulars:

1. they cannot be acquired without the permission of the State (a. 57); 2) if furnaces stand around for liquefying metals, the owner of the land is held to acquire the metallic strata after he has declared the matter to the authority. But if he himself does not acquire, the directors of the furnaces can, after the owner has been warned and a month has elapsed after the warning, and after the authority has been made more certain concerning the matter, acquire the strata; if, however, crops exist on the land, the director of the furnace is held to wait until the owner of the land has gathered the crops (a. 59, 60, 61). But a fitting indemnity is acknowledged to the owner (a. 66).

C. As to mines properly so called, the law constitutes a special regime concerning dominion in veins of metal and fossil coal. In such a regime the State appears almost as tutor of the common good, lest it suffer detriment from the ignorance or cupidity of private persons; hence it itself attributes the concession of dominion for the acquisition of mines to those whom it judges more fit for this (a. 14 and 16); nevertheless the law acknowledges, as seems equitable, some right both to the finder (a. 17), and to the State (a. 33), and especially to the owner of the land (a. 171), who, other things being equal, also has preference of concession (a. 11 of the law of 1837). And indeed:

1. before the acquisition of the vein is conceded by public authority, so that the owner may be held himself the owner of the surface, he therefore enjoys the right of digging, conformably to the Civil Code, a. 552 (a. 10 and 12);

2. if he to whom the acquisition has been conceded, going beyond the limits of the concession, should come beneath someone's land, he is held to indemnify its owner;

3. a concessionary who unduly extracts beneath someone's land must refund to him the whole of what he extracted, with the expenses of acquisition deducted;

4. if beneath someone's land the concessionary extracts material which is not included in the concession, he must pay indemnity to the owner of the surface;

5. from a decree of the council of veins of metal and coal (conseil des mines) of March 17, 1848, a vein not conceded is outside commerce, in this sense, that it cannot be the object of sale or of any agreement which would separate it from the surface.

But once conceded, a new dominion is created, distinct from the surface, capable of undergoing mortgages, perpetual, transmissible, and inviolable, as other dominions are (a. 7 and 11). Yet special burdens are imposed on this dominion, for a twofold payment is owed both to the State (a. 33) and to the owner of the surface (a. 42; and a. 9 of the law of 1837): one fixed, another proportioned to the quantity of metal or coal extracted; likewise to the finder, if he did not obtain the concession of some mine, an indemnity is owed (a. 11 of the law of 1837). Likewise, damages to be repaired are those which come to the owners of the surface in buildings, fields, and industrial works from the acquisition made (a. 15 and 43-45).

210. III. Concerning gathering wood and pasturing, that is, concerning the collection of dry branches in woods and of grasses in pastures, it must be said:

1. If woods and pastures have their private owners or lessees, no one else can enjoy them, when the owner is unwilling, without injustice; nevertheless:

a) Sometimes the owner does not care about these things, for example, if in vast woods poor persons collect only dry wood, broom, thickets, and similar small green wood which is assimilated to thorns, or lead their animals to pasture those things which the owner is not going to collect nor give to his own animals as fodder. Nevertheless, let them take care lest they bring damage to green wood;⁶

⁶ They themselves must carefully take care: 1) lest they dry out green wood by cutting the roots; 2) lest they cut down small or younger trees; for from this great detriment will arise if another tree is not substituted; 3) lest they carry away little trees planted in a row, especially next to a public way; for often it is difficult to find other similar ones.

b) From custom there sometimes exists vague pasturing, that is, the right of pasturing flocks in any unenclosed estate (by water, wall, iron), after the crops or first grasses have been collected, or from a determinate time to a determinate time; then the customs of the places must be consulted, which have the force of law. Thus the Belgian Rural Code, Oct. 7, 1886, a. 23-28.

2. If woods and pastures belong to the community, and have not been leased to others, any citizen of the place can enjoy them according to the customs of places, which are also consecrated by law. Thus the Rural Code, l.c., and the Belgian Forest Code, Dec. 19, 1854, art. 82 and 84 sq.

Yet those laws are judged merely penal, except where they prohibit notable damage to be caused to the community or to a third party, as can easily happen in practice.

211. IV. Concerning occupation of booty made in a just war, it must be said:

1. public goods (for example, arms) left by the enemy or violently taken away can be occupied; but occupation can be made not by private soldiers for their own advantage, but according to the law or command of the leader and for the public good, for booty taken does not belong to individual soldiers but to the government;

2. according to natural law even private things of enemies (not goods of the Church, nor of guests or foreigners) can directly be taken away and occupied; nevertheless, according to the convention of positive law, today in land war this is not licit, because war is not waged against simple citizens and private persons, but against the whole kingdom, unless by accident, as if some private person or village had exercised hostility;

3. nevertheless, from the authority of leaders, requisitions can be made from the goods of private persons, but according to certain limits, conformably to the Hague Convention, with due payment nevertheless being made to the owners.

Hence a) soldiers cannot retain for themselves except those things which are attributed to them by law or by concession of the leaders, and provided that the injustice of the war or of the concession is not evident;

b) outside the case of necessity, individual soldiers cannot even by their own authority snatch from enemies food to be eaten;

c) those things which by private authority they have usurped or plundered or destroyed, if they are of notable value, they are held under grave obligation to restore to those who have suffered damage, or, if these are unknown, to superiors (bishops, magistrates), who will distribute those goods to the poor of the places; unless nevertheless after the war the rulers have mutually condoned damages unjustly brought.

212. Observation. - Fr. Vermeersch well observes: from the nature of the thing, prescinding from the determination of civil law, occupation alone is not sufficient insofar as it manifests the will of having the thing, because then a public edict without occupation would better suffice, and because such a will, even most manifest, of itself does not touch the thing, and therefore does not bind it to anyone by a stable bond. Therefore true occupation is required, not merely legal occupation, by which the thing, according to its nature, is shown to be subject to someone's power or serving him for exclusively proper use.

"Nor do others more happily establish labor itself as the primordial fact. For either they understand the work by which the thing changes species: but then by what title do many things which of themselves are adapted by nature to our uses (think of fruits, animals, gold found by chance, etc.) enter private dominion? Or they are already content with that work which is contained in every occupation: and what labor then formally provides is not demonstrated. And, speaking universally, it is not doubted that each one acquires the fruit of his labor; but beyond this, from labor nothing can formally be concluded. Therefore those themselves who have labor for a title, if they are asked concerning the reason why they so judge, cannot argue except from the connection which is introduced by labor between the thing and the craftsman: so that at length they sometime formally name another cause" (o.c., n. 215). Labor, that is, is materially suitable for inducing this destination; formally it does not avail, except because it is a mode of subjecting the thing or converting it to one's own uses.