Article II: On Invention

213. Invention differs from occupation strictly so called: 1) for occupation supposes and includes the intention of acquiring for oneself the thing occupied, but invention denotes only the discovery of a thing, or at most its apprehension; 2) occupation is also and chiefly concerning things which have never belonged to anyone, but invention only concerning those which have had an owner but have ceased to be in his detention.

Therefore it is badly defined by some as a certain occupation of some thing separated in fact from its owner; but it must be defined as the discovery or bringing to light of some thing separated in fact from its owner. It is said:

1. discovery, and not real apprehension and occupation, because it can happen through merely intentional apprehension by sight alone, that is, by seeing the thing; indeed through the mere manifestation and bringing to light of the thing, that is, by rendering it visible (by oneself or by others hired for this);

2. of a thing separated in fact from its owner, either so that he retains dominion over it (a lost thing), or so that he is no longer owner (an abandoned thing), whether because the owner has died without an heir, or because he has renounced his dominion, or because he can no longer prove his dominion, and then the thing is called a treasure.

214. I. Concerning the finding of treasure. - Treasure among abandoned goods deserves special mention; it is defined as: any hidden or buried thing which no one can prove to be his and which is found by fortuitous chance¹ (C.C., a. 716). It is said:

¹ Concerning treasure, the Italian code, a. 714; the Spanish, a. 352 and 514; the Austrian, a. 392; the German, a. 984.

1. any thing, whether it was hidden long ago or recently, whether it is money, or any other movable thing whatever, whether precious or cheap, provided it is estimable by price, for example, the jewel of a ring, documents, precious vessels,² etc.

² By Austrian law, only money, jewels, and a precious thing are held as treasure; by English and American law, only coin, or also a golden or silver thing.

2. hidden or buried: for if it is in the open, it is not a treasure but a lost thing or simply an abandoned thing. Furthermore it is required that it have been hidden by the hand of man; or, if by a fortuitous natural event, for example, an earthquake or volcanic eruption, it was covered over, that at least by an act of man it had been deposited there, whether in an immovable thing, as in a field, or in a movable thing, as in a cupboard, an old garment, an ancient chest;³ hence treasures are not riches which by nature itself lie in some estate, as metallic or coal veins or precious stones, nor are tombs or sculptured stones buried in the earth treasures in the proper sense;

³ In the Netherlands they dispute whether a thing hidden in a movable thing is treasure; which seems strange, since the Dutch code (a. 642) borrowed the definition of treasure from the French code.

3. which no one can prove to be his, for otherwise it would have to be restored to the owner;

4. there is added: which is found by chance. It is disputed among interpreters of civil law whether this element pertains to the essence of the definition; but it seems rather not to pertain, and only to indicate the ordinary mode by which treasure is found.

Now concerning the finding of treasure these principles are valid:

1. Treasure is a thing of no one: for it is not the thing of him who is the owner of the land, since it is not certain that it was hidden there by his ancestors; nor is it any longer the thing of him who hid the treasure, since by hypothesis he cannot be found.

2. Therefore treasure, if natural law alone is considered, belongs wholly to the finder; but the finder is deservedly judged to be he who, whether by himself or by another hired for this end, first discovers it or renders it visible, although he has not yet apprehended it by hand.⁴

⁴ German law, however, requires both, for it says: "which is discovered and, when discovered, is occupied" (a. 984); likewise by Spanish law, he is held to be the finder who apprehends, not he who sees (a. 351, 610, and 614).

3. From present-day civil law, treasure found in another's land is generally to be divided equally between the finder and the owner⁵ (not the usufructuary⁶) of the land, because the law presumes that the treasure has a certain special connection with the land, or even was hidden by the ancestors of the owner, which in the more frequent case, in which possession of the land has remained in the same family for a sufficiently long time, is probable. This law is equitable and therefore obliges in conscience.

⁵ C.C., a. 716. The owner of the land is understood whether a private person, or the public treasury (the fisc), or a civil or ecclesiastical society. This last, however, is called into doubt by some, because it is not certain whether civil law is applicable in the case; on the contrary Vermeersch, applying can. 1529, with can. 20 considered. - Swiss law makes an exception, establishing that treasure belongs wholly to the owner of the land (a. 723); likewise English law, which attributes it to the public treasury (the fisc) if it claims it; otherwise it belongs to the first occupier.

⁶ C.C., a. 598. - In an emphyteutic good, by Italian law (a. 1361) and Spanish law (a. 1632), it cedes to the useful owner; by Austrian law, to each owner (a. 399).

4. Civil laws often prohibit another's land from being dug up, without the owner's knowledge, in order to seek treasures, so that he who by design and without the consent of the owner has sought and found treasure in another's land is deprived of his part and is held to cede the whole to the owner.⁷ Yet this disposition is a penalty inflicted for a delict, and therefore it does not oblige in conscience except after the sentence of a judge. But if the owner has been warned and has consented, the contract entered into with him must be observed.

⁷ Thus French and Belgian, Italian, Spanish, and Dutch law.

215. Corollaries. - 1. He who buys a field at the current price, in which he suspects a treasure lies hidden, uses his right, and is not held to divide the found treasure with the former owner. For treasure is not a part or fruit of the land, nor is it occupied together with the field, and therefore it was not the owner's thing, but before invention was a thing of no one, which has an owner by invention alone.

2. On the contrary, he who hides a treasure already found, and after buying the field retains the whole for himself: by the very fact that he had found it, he is already held to hand over half the part to the owner.

3. If a precious thing has been made visible by a tempest, it already loses the character of treasure and will belong to the first occupier.

216. II. Concerning lost things. - A lost thing is called that which, against the will of the owner, has fallen out of his possession, although it is not hidden. Therefore it differs from treasure both because it is not hidden, and because it is not a thing of no one, but is presumed to have an owner. Hence:

1. A lost thing remains under the dominion of him who involuntarily lost it, as long as there is for him the possibility of recovering it.

2. If, all things considered, there is lacking the possibility of finding the owner, a lost thing probably becomes a thing of no one, and therefore can legitimately be retained by the finder, whatever many of the old authors may have said; because now it is impossible for the owner to exercise his dominion over the lost thing. For dominion of a thing is attributed insofar as utility can be perceived from the use of the thing; and this is impossible for one definitively losing it. Hence, the reason of dominion failing in him, his dominion ceases.

3. The finder is not held to pick up a lost thing, unless sometimes from charity, if it is notable and otherwise about to perish. But one taking the thing is now obliged from justice and quasi-contract: a) to guard the thing diligently, as a good father of a family, lest it perish for the owner, and if it cannot be preserved, to sell it and preserve the price; b) to inquire about the owner with moral diligence by apt means proportioned to the value of the thing found, not at his own expenses, however, but at the owner's; c) when the owner is known, to restore it to him, after deducting the expenses made in guarding and investigation, without being able strictly to demand a reward, unless the owner has promised it or civil law so establishes.⁸

⁸ Civil law establishes this, for example, in Germany, Austria, Switzerland, Italy, and Spain. Remuneration is not owed if the finder neglected to inquire; Austrian Code a. 389; Spanish 615-617; German a. 965-968.

4. The finder who culpably is the cause that the owner cannot be found, because he neglected to inquire or sufficiently to inquire about the owner, or hid the thing so that the owner cannot recover it, is a possessor in bad faith, and therefore can have nothing of the thing for himself, as will be said later, n. 303. Hence he is held to restore the whole either to the probable owner, if there is one, or to pious works, even if he has consumed the thing.

5. A finder for whom, after sufficient diligence has been employed, the owner remains doubtful and uncertain, must divide the thing among a few uncertain owners according to the proportion of doubt or probability.

6. A finder for whom, after sufficient diligence has been employed, the owner remains wholly unknown, with no hope of discovering him, probably can make the thing his own, as a thing of no one, and indeed at once (unless civil law establishes otherwise⁹), nor is he held to expend it on pious uses, although it is more praiseworthy that this be done.

⁹ Thus, for example, in Switzerland and Austria.

7. If, before the time for prescription established by law has elapsed, the owner appears, the finder who after an altogether diligent inquiry appropriated the thing to himself in good faith is held to restore it and its fruits, insofar as he still possesses them or has become richer from them; but if he has consumed it, or has completed the time required for prescription, he is held to restore nothing, as a possessor in good faith.

But the time established for prescription is various. By French and Belgian law (C.C., a. 2279), likewise Dutch (a. 2014) and Austrian law, it is 3 years, unless there are special dispositions for a particular case, for example, for things deposited in the montes pietatis, or transported or abandoned in public offices; by Italian law (a. 715-718) and Spanish law (a. 615 and 616), 2 years after publication; by Swiss law, 5 years; by German law, 1 year after denunciation. By English law prescription is not admitted in this case.

217. Observation. - It suffices to apply the general prescriptions of civil law as to a certain deposit of lost things or the mode of seeking the owner; nevertheless this does not seem obligatory, unless they regard special things or cases. In Belgium, for the rest, prescriptions do not exist except for things which are transported by public services (for example, by railroad or postal service), and are abandoned there or in tribunals.

218. III. Concerning abandoned things. - That thing is called abandoned which the owner has voluntarily abdicated without transferring it into the dominion of another. Such are fruits which are left after the harvest has been completed, dry wood which lies on the ground and is not collected, old rags which are thrown away; and also goods which, when the owner is dead, become no one's, either because the deceased neither has nor constituted heirs, or because they renounce the succession (vacant inheritances). Therefore these goods now are no one's. Now:

1. By natural law, abandoned goods, as things of no one, can legitimately be occupied.

2. By civil law it is sometimes established that goods which lack an owner or abandoned inheritances devolve to the State; which law obliges even in conscience, at least after the intervention of authority claiming the rights of the State or the sentence of a judge.

Thus by French and Belgian law (C.C., a. 539, 713, 768¹⁰). But these words regard only immovable goods and inheritances (as is supposed, a. 564, 715, 716, 717). Hence for the remaining movable goods the right of the first occupier remains.

¹⁰ Likewise Dutch code, a. 576; Italian, a. 742 and 758; Spanish, a. 913, 914, 956, 958.

219. Observation. - Things lost by shipwreck are not abandoned, nor things thrown into the sea to save a ship, or carried off by inundation (epaves; strandgoed): for owners did not freely and spontaneously cast these away, but intend to retain dominion over them as far as they can. Hence concerning these things the statements about lost things are valid; and therefore sometimes special civil laws are issued concerning these things,¹¹ or they even punish those who steal such goods.

¹¹ C.C., a. 717, and ordinance of the year 1681 concerning maritime things with decrees of 27 Thermidor, year VII, and 17 Floreal, year XX.