383. On occupation in general. Occupation (Aneignung) is the apprehension of a thing which belongs to no one, with the mind of acquiring it for oneself.

1. Occupation, if the due conditions are present, is a legitimate mode of acquiring ownership: for by the law of nature things belonging to no one become the things of the first occupier. Therefore just as at the beginning private ownership began by occupation of things which then were all things belonging to no one, so now things which belong to no one pass into the ownership of the occupier (n. 368).

2. The conditions which are required that some thing become the thing of the occupier are: a. that the thing belong to no one, whether it is vacant or abandoned; otherwise by occupation an injury would be done to the owner; b. that true or real apprehension be present; c. that the mind of making the thing one's own be present.

At the present time in our regions, where there are no parts of the earth not yet occupied by men, there occur only occupations of animals, which are made by hunting, fishing, and fowling, and occupations of found things, which are either buried, abandoned, hidden in the bosom of the earth, or lost.

384. Distinction of animals. Animals are distinguished into three kinds:

a. Tame or domestic animals, which by their nature use human society and therefore do not enjoy natural liberty, such as horses, sheep, oxen, chickens, dogs. These of themselves have an owner.

b. Tamed or domesticated animals, which of themselves indeed enjoy natural liberty, but by the industry of men are deprived of it and are subjected to their ownership, such as birds in a cage, bees in a hive, doves in a dovecote. Fish in private fishponds and wild animals enclosed by fences are also numbered among domesticated animals.

c. Wild or sylvan animals, which by their nature shrink from human society and enjoy natural liberty, such as hares, fish, birds. These do not have an owner.

385. On occupation of animals.

1. Tame animals always remain of the former owner, even if they wander off or depart from custody; for since they are domestic by their nature, they never become things belonging to no one.

a. Therefore they cannot be occupied by another, neither they themselves nor their fruits, but must be restored to the owner even when dead, wherever they have been found.

b. The same is also valid in the case in which they certainly would have perished for the owner unless they had been freed from destruction; for a thing does not cease to belong to its owner because it has been rescued from destruction by another. Therefore animals snatched from a fire or from a wolf must be restored to the owner; nevertheless, for the labor a just stipend is owed.

386. 2. Domesticated animals remain of the former owner as long as they are detained in custody; but as soon as they have escaped from custody and recovered their former liberty, they become the things of the first occupier.

a. Animals which are detained in custody are of a twofold kind: some which, once sent out from custody, are not accustomed to return, such as deer, hares, most birds, fish; and others which are accustomed to return, such as doves and bees. Now the former are judged to have recovered liberty when their pursuit has become morally impossible for the owner, or when the owner no longer pursues them; but the latter when they have lost the custom of returning. But they are judged to have lost the custom of returning if they do not return for some days, which positive law determines more accurately.¹

b. It is not licit without injustice to attract to oneself by fraud the domesticated animals of another, such as doves, for example, by throwing out more exquisite food, because the owner of a thing has a strict right that his own thing not be withdrawn from him by others through force or fraud.²

Whether it is licit to kill the animals of another (dogs, doves, chickens) which harm a field. It is licit to kill them lest they harm: for it is licit to repel force by force. But these things are required: a. that the damage cannot be forestalled in another way, for example, by driving them away or by warning the owner; beta. that the damage which they inflict be notable or at least equal to the damage which the owner of the animals suffers; but doves, chickens, and such things inflict notable damage only at the time of harvest and sowing; gamma. that the preservation of one's own thing be directly intended, but not the damage of the neighbor; delta. that the animals killed can be retained only as compensation for the damage inflicted.³

¹ From C. A., Section 384, a swarm of bees which the owner does not pursue for two days, and a domesticated animal which has not returned to the owner for 42 days, can be occupied by another. Cf. C. G., Section 961.

² Cf. Elbel-Bierbaum, II, pr. 5, n. 207.

³ C. A., Section 1320 ff.; C. G., Section 833 ff.

387. 3. Wild animals, as long as they wander freely, can be taken by anyone: for they belong to no one, and therefore become the things of the first occupier. Therefore he who takes an animal of this kind becomes its owner by the occupation itself, whether he took it on his own land or on another's land; and he preserves ownership of it as long as he detains it in his own custody, or, if it has escaped, as long as he pursues it with hope of recovering it.

a. A wild animal which is found on another's unenclosed land does not pertain to the owner of the land, but belongs to no one. The owner of the land indeed has the right of prohibiting another from hunting on his land and of demanding compensation for damage which has been brought upon the land by the hunter; but the wild animal killed or taken from a nest pertains to the hunter.

b. Wild animals which are in enclosed lands, and fish which are in preserves from which they cannot escape, pertain to the owner of the land or preserve, because through the enclosure erected to guard them they have already been taken. Therefore he who hunts in enclosed groves or fishes in private fishponds acts against justice and is bound to restore the animals taken or an equivalent price. Yet if the enclosed forests or lakes of water are of very great extent, so that the capture of the animals becomes uncertain, they are not judged to have lost their natural liberty. Therefore he who hunts or fishes in places of this kind indeed injures another's right, but the damage inflicted must be taken from the probable hope which the owner had of taking those animals.¹

c. A wounded wild animal belongs to the hunter wounding it if it has been so wounded that it can no longer flee away: for the hunter by the wounding itself apprehends it in fact. Likewise a wild animal caught in a snare belongs to him who placed the snare, provided it is so ensnared that it cannot escape; for by the snare it is in reality occupied.

It is asked whose a wild animal is which is caught in a snare which someone placed on another's land. a. Besides the owner of the land and the hunter, no one has a right in the captured wild animal; therefore any other person who either releases the wild animal from the snare or takes it away acts unjustly, unless it would have escaped; for if it would have escaped unless another extracted it, it belongs to the one extracting. beta. A wild animal caught in a snare is indeed of itself the hunter's; nevertheless the owner of the land, if the snare was placed against his will, retains the right of impeding him from approaching to extract the wild animal, and therefore of releasing it while still alive, and probably even of taking it for himself.²

¹ Laymann, l. 3, tr. 1, c. 5, n. 12; Holzmann, Theol. moral., t. 4, n. 31.

² Cf. Gury-Ballerini, I, n. 572, q. 3, note.

388. On the right of hunting and fishing. 1. In an open place accessible to all, whether public or private, each one can of himself hunt (fish), provided he does not bring damage upon another's lands. Nevertheless hunting (fishing) can be prohibited. From received custom this prohibition is judged to be merely penal, which obliges only to paying the fine or undergoing the penalty. But if the right of hunting has been leased, the tenant acquires the exclusive right of hunting in that place; and in our European regions the right of hunting is leased almost everywhere.

Yet laws which prohibit hunting (fishing, fowling) at a certain time to avoid a lack of wild animals (Schonzeit) rightly seem to most to be preceptive laws, which by reason of the common good in a matter of sufficiently great importance oblige in conscience from legal justice.

2. If the exclusive right of hunting (fishing) in an open place belongs to someone, whether because he has leased the right or because the owner of the land has reserved it for himself, by this fact he does not acquire a right in the animals which are found in that place, since they still enjoy natural liberty. But with the right of hunting there before others he has the hope of taking the animals which are found there. Therefore he who hunts or fishes in a place of this kind against his will, by the very hunting (fishing), injures the right of the tenant or owner, but makes the animals killed his own and can retain them; nevertheless he ought to repair the damage inflicted.¹ But damage is not judged to be inflicted unless either several or larger animals are killed.

a. If a great slaughter of animals or a great capture of fish takes place, the hope of the owner of taking at least some of them is manifestly injured. If only one or another animal is taken, the hope which the owner had of taking precisely that animal is injured. Now if the matter concerns smaller animals, and if there are many animals there, this hope is almost none and is worth little or nothing; wherefore no restitution must be made. But if there are few animals of this kind there, or if the animals are larger, this hope is judged to be worth about half the price of the captured animal itself.²

b. Where hunting is prohibited in public or private forests, the owners of the forests or tenants of the hunting: alpha. ought to beware lest wild animals be permitted to eat down or devastate fields or meadows; otherwise farmers have the right of defending their own goods not only by driving away the wild animals, but also by killing them if there is need; beta. they are bound to repair damages which are inflicted either by wild animals or by hunters on the occasion of hunting.

Article Second. On Invention

Invention is a species of occupation. But found things are of four kinds: treasures, vacant things, abandoned things, and lost things, concerning which one must treat in particular, because the rights of the finder are determined diversely by positive laws according to the diversity of the thing found.

¹ Positive laws can not only prohibit hunting, but also impede the hunter from acquiring ownership of the captured wild animal; statutes of this kind, if they certainly exist, oblige in conscience. C. G., Section 958.

² E. Muller, Theologia moralis, II, Section 102.

389. On the finding of a treasure. A treasure is a precious thing, buried or hidden, which no one can prove to be his own.

a. Therefore three things are of the notion of a treasure: alpha. that it be a precious thing; beta. that it belong to no one; gamma. that it be buried or hidden. Therefore, in the proper sense, metallic or coal veins which are found in the bosom of the earth are not treasures.¹

b. The owner of the land in which the treasure is found is he who has its direct ownership. Therefore if a treasure is found in the land of an ecclesiastical benefice, the owner of the land is not the beneficiary but the Church;² if it is found on public land, the owner is the community or city (the fisc), which administers public goods.

c. He is not called the finder of another's thing who first sees it, but he who sees and apprehends it. He is not called the finder of a treasure who first sees and apprehends a treasure already uncovered or dug up by another, but he who uncovers it or makes it visible. The first right of apprehending the treasure belongs to the detector; if the detector does not use this, the treasure can be apprehended by another.

¹ It seems to make no difference whether the thing has been hidden by the hand of man or by the powers of nature; therefore C. A., Section 398, refers ancient things which are dug up (antiquarische, archaologische Funde) to treasures; likewise C. G., Section 981.

² From C. A., Section 399, each is considered as owner of the land: both he who has direct ownership and he who has usufruct.

390. 1. By the law of nature a treasure seems to be a thing belonging to no one and therefore a thing of the first occupier, that is, of the finder, who by finding occupied it. For it was not born in the land in which it is found, but was placed there by an external force. Yet positive laws consider a treasure in some way as a part of the land and therefore adjudicate part of the treasure to the owner of the land.

2. Recent laws nearly agree with the dispositions of Roman law:¹

a. A treasure which is found in one's own land belongs wholly to the finder. (A law which ascribes the whole treasure or part of it to the fisc is penal.)

b. A treasure which by chance is found in another's land must be divided; therefore half is of the owner of the land, but half is of the finder.

This law must be observed in conscience, and indeed before the sentence of the judge (n. 356). At what time the owner of the land acquires a right in part of the found treasure, whether by the finding itself or after the finder apprehends it, depends on the disposition of the law. Ordinarily from the codes the treasure found, not only apprehended afterward, must be divided between the owner of the land and the finder. Therefore the finder could not without injustice bury the treasure again, buy the land, and retain the whole for himself.²

c. A treasure which deliberately and without the knowledge of the owner is sought and uncovered in another's land, after the sentence of the judge, either wholly belongs to the owner or must be divided between the owner and the fisc.

alpha. The law prohibiting that the lands of others be dug up was established to protect the rights of owners; but transgressors of this law are deprived, as a penalty, of part of the found treasure. Because the law was established as a penalty, the finder of the treasure is not bound to undergo the penalty before the sentence. Hence if the finding remains hidden, he can licitly agree with the owner of the land concerning dividing the found treasure.

beta. If money or another precious thing is found in a chest, or in an old garment, or in a corner of a house, whose owner cannot be found, it can be considered as a treasure; and therefore the whole is of the finder if he himself is the owner of the thing in which it is found. Otherwise the found thing must be divided between the finder and the owner of the thing which contains the treasure.

¹ C. A., Section 398-401. By decree of 16 June 1846, political authority renounces the part reserved to itself there. C. G., Section 984.

² Cf. Matt. 13:44.

391. On occupation of a vacant thing. Vacant things by the law of nature become the things of the first occupier, unless by human law their ownership, either in whole or in part, belongs to another: for things belonging to no one by the law of nature become the things of the first occupier.

a. Mines or useful things hidden in the bosom of the earth, such as metallic, marble, sand, coal veins, etc., are considered by some (Lugo) as accessory parts of the land in which they are found, which therefore pertain to the owner of the land. Yet others (Lessius, Soto) adjudicate mines to the first finder, because it does not seem equitable to them to consider a precious thing, such as a vein of gold, as an accidental part of a thing of much lesser price. Concerning this matter the codes must be consulted.

b. Movable vacant things, such as little stones, gems, fragments of gold, and things of this kind, become the things of the first occupier.

392. On occupation of an abandoned thing. Abandoned things likewise belong to the first occupier, unless their ownership is attributed to another by positive law: for things belonging to no one become the things of the first occupier.

a. Goods found on the shore of the sea or on the bank of a river after a shipwreck or flood, likewise goods thrown out from fear of shipwreck, cannot be held as abandoned and therefore do not become the things of the first occupier.¹

b. Wood or other goods which are carried from one place to another by flood are not abandoned things unless from the circumstances it appears either that the owner is no longer solicitous about them or has no hope of recovering them.

c. Fruits, such as nuts, grapes, ears of grain, etc., which remain after the harvest has already been completed, from the presumption that owners do not care about them, are held as abandoned. Therefore the owner can also forbid their collection.

d. He who finds coins in a shop or in a church (for example, by sweeping it) or in a public street can retain them for himself when, on account of the great concourse of men into that place, there is no hope that the owner will be found. Yet if the found thing is of some value, it ought to be deposited in the sacristy or with the pastor, where things lost in the church are usually sought by the owner. But if after some time (about two months) the owner does not claim the thing for himself, it belongs to the finder.

e. In doubt whether a thing is lost or abandoned, it must be treated as lost.

f. Goods left by one who has died without a testament and without an heir, whether movable or immovable, fall to the fisc.²

¹ C. A., Section 388.

² C. A., Section 760; C. G., Section 1936.

393. On the finding of a lost thing.

A lost thing differs from a treasure in two ways: a. in that it is not hidden; b. in that it is not a thing belonging to no one, but has an owner, although unknown. But where, with the circumstances considered, there is no longer any hope of finding the owner, it is judged to have fallen from his ownership and is held as abandoned.

1. The finder can leave the found thing in its place; nevertheless ordinarily there exists an obligation, not indeed of justice but of charity, of carrying it with him.

An obligation of justice does not exist because, with special contract excluded, no one is bound from office to carry another's thing with him; but an obligation of charity can exist. For from charity we are bound to avert damages from the neighbor if it can be done conveniently. Hence if otherwise the owner would not recover his thing, and if there is hope of detecting the owner, the obligation of taking the thing urges, unless inconvenience excuses. This obligation is greater according as the detriment which the owner suffers from the lost thing is greater.

2. He who has taken the found thing is bound from justice to seek the owner, not at his own expense but at the owner's, and meanwhile to guard it diligently.

a. He who takes a found thing, by that very fact, spontaneously receives another's thing into his own custody. But he who has another's thing in his custody is bound diligently to preserve it for the owner and to render it to the owner; and if the owner is unknown, to seek him by suitable means.

b. He who culpably neglects to investigate the owner, and a fortiori he who deliberately hides the found thing, when hope of finding the owner exists, is the cause why the owner cannot recover his own thing. Therefore he becomes an unjust possessor of another's thing and cannot retain it, but, if the owner does not appear, ought to distribute it to the poor or to pious uses.

c. A certain mode of investigating the owner is indeed not prescribed by the law of nature, but any mode suffices which is judged suitable for the end; but by positive law the mode of investigating the owner is accurately determined.¹

d. If the found thing is not of lesser importance,² the mode of investigating the owner prescribed by law must generally be observed in conscience: for private inquiry is not judged an apt and sufficient means of finding the owner. Therefore he who knowingly and willingly does not observe the statutes of positive law does not become owner of the found thing, not even by prescription, because good faith does not assist him.³

3. If the owner has been found, the finder is bound to restore the thing to him; nevertheless the expenses made in investigating the owner, and the reward if any has been promised by the owner or by law, he can by right demand or deduct for himself from the thing.

4. If, after diligent inquiry has been employed, the owner is not detected, the finder can retain the thing for himself by right of occupation; and if afterward the owner appears, he is no longer bound to restore the thing to him.

a. Once sufficient diligence has been employed in investigating the owner, it can prudently be judged that the owner can no longer be found. But where there is no reasonable hope of finding the owner, the thing by natural right or from the tacit consent of men is judged abandoned. But an abandoned thing becomes the thing of the first occupier. Therefore by occupation the finder acquires ownership of the found thing, not by prescription.

b. Some positive laws establish that the finder acquires ownership of the found thing after a year, others after three years.⁴ By this statute there is defined the time after which the owner is judged to lose ownership in his thing; for it is prudently presumed that after this time has elapsed the owner can no longer be found.

Article Third. On Accession

Accession (Verbindung, Vermischung, Umbildung, Verarbeitung) is a mode of acquiring ownership by the fact that something is joined to one's own thing. Three species of accession must be distinguished: natural, industrial, and mixed accession, according as something accedes to one's own thing either by the powers of nature alone, or by human industry alone, or from the concurrence of each.

¹ C. A., Section 389, 390, where a diverse mode is prescribed for the diverse value of the found thing; C. G., Section 965 ss.

² A thing is of greater importance from C. A., Section 389, if it exceeds the value of 2 crowns; from C. G., Section 965, if it exceeds the value of 3 marks; from custom, if it exceeds the value of 10 (according to others, 20) crowns.

³ Cf. Lehmkuhl, Das burgerliche Gesetzbuch, at Section 965 ff.; Carriere, De iustitia, I, n. 336, 347.

⁴ C. A., Section 391, 392, 1466; C. G., Section 973.

394. Natural accession can happen in three ways:

a. By fructification, by the fact that fruits arise from someone's tree or land without human industry. Their ownership is determined from the principle: a thing bears fruit for its owner.

b. By birth, by the fact that an animal arises from someone's animal. Its ownership is determined by the rule: offspring follow the womb, that is, whose the generating animal is, his also is the generated animal, whether it was conceived from one's own or from another's animal.

c. By alluvion, by the fact that earth is added to someone's land. If it accedes gradually, it immediately pertains to the owner of the land;¹ but if a notable part of earth accedes suddenly (avulsion), the owner of the land acquires ownership if the prior owner has not claimed it for himself within the time prescribed by law (within a year).²

¹ C. A., Section 411.

² C. A., Section 412.

395. Industrial accession can happen in four ways:

a. By specification, when another specifically diverse form accedes to one's own thing, as if someone makes cloth from my wool, or a garment from cloth, bread from my wheat, a ring from my gold. From the law of nature the ownership of the new thing is determined according to the axiom: the accessory follows the principal. But since frequently it cannot be determined whether the principal is the substance of the thing or the new form, one must stand by the dispositions which the civil code contains concerning this matter.¹

From the codes, some establish that the new thing pertains to him who gave the new form to the matter, with the price of the matter paid, unless bad faith intervened or the value of the matter is greater. But others establish that the new thing pertains to him whose the matter is, with the price of the art employed paid, unless the price of the art far exceeds the price of the matter and unless bad faith intervened.

b. By adjunction, when another thing is so joined to one's own thing that both make one whole, as if someone makes a painting on my canvas or inserts a gem into my ring. If the two things cannot be separated, ownership of the whole is determined from the same axiom: the accessory follows the principal, which positive law determines more accurately.

c. By commixture, when solid things belonging to diverse owners are joined; by confusion, when liquid things are joined, as if wheat is mixed with another's wheat, wine with another's wine.

alpha. If the united things can be separated, separation ought to be made and each thing must be restored to its own owner, unless someone uses another's thing only for repairing his own, for example, another's thread for sewing his own garment. In this case the owner of the principal thing becomes owner also of the accessory thing, but he is bound to pay to the owner of the accessory thing its price.

beta. If the united things cannot be separated, as if the wheat of one is mixed with the wheat of another, both are owners of the whole mass, which must be divided between them in proportion to the part previously pertaining to them. Yet if the part of one can be considered as principal, because it is greater or more precious, he, if he wishes, becomes owner of the whole, which therefore he can retain for himself, yet with the obligation of paying to the other the price of his part.

d. By building, when a building is constructed on one's own land from another's material or on another's land from one's own material. The laws nearly agree in this, that according to the principle, the accessory follows the principal, they establish that the building, as accessory, pertains to the owner of the land, who nevertheless ought to compensate the other, unless he acted in bad faith.

He who knowingly and in bad faith builds on another's land loses ownership of the building and cannot demand compensation either of the material or of the labor. In this way the S. C. of Bishops and Regulars, 11 March 1892, following Roman law, decided a particular case;² nevertheless modern laws do not all define the matter in the same way.³

¹ C. A., Section 415; C. G., Section 946-950.

² Cf. Acta s. sedis, XXIV, p. 550.

³ Cf. C. A., Section 417-419; C. G., Section 910, 947.

396. Mixed accession happens in a twofold way:

a. By sowing, when seeds scattered in another's field germinate. b. By planting, when plants placed in another's land grow. Ownership of the thing which grows in his land is attributed to the owner of the land, according to the little verse:

Whatever is planted, sown, or built, All yields to the soil, if nevertheless it has set roots.

Yet if something is planted in a movable thing, for example, a flower in a pot, ownership of the whole must be determined from the principle: the accessory follows the principal. Therefore according as the flower or the pot is of greater price, the whole pertains either to the owner of the flower or to the owner of the pot.