§ III. On the Acquisition of Dominion

Dominion can chiefly be acquired: 1st. by occupation; 2nd. by prescription; 3rd. by accession; 4th. by contracts. Concerning contracts we shall treat in the particular tractate; but now only concerning the first three modes of acquiring dominion.

Occupation is the real apprehension of a thing capable of dominion with the intention of acquiring it for oneself. Wherefore five conditions are required; for on the part of the subject it is required 1st. that some external act be posited, because a simple desire or intention is not sufficient; and 2nd. that there be the intention of acquiring dominion. But on the part of the object it is required 1st. that that which is apprehended be some corporeal thing, as, e.g., some part of land; 2nd. that that thing be capable of dominion, of which sort certainly the ocean or air is not; 3rd. that besides it belong to no one, because a right cannot arise against a pre-existing and remaining right. - Many theologians also require that the occupation not be prohibited by some positive law which reserves the thing to another owner, e.g., the State; but this condition is contained in the others.

I say. All the aforesaid conditions having been verified, occupation is a legitimate mode of acquiring dominion. The reason is taken both from the right of nature and from the practice and positive right of all nations.

Since the more frequent cases of acquiring dominion by occupation occur concerning animals and found things, we shall speak only of these.

Animals are distinguished into three kinds, namely wild, tame, and tamed. - Wild or undomesticated animals are those which by nature live freely outside the society of man, such as hares, stags, fish, birds, etc. Tame or domestic animals are those which have a natural accustomed association with man, and return to him of their own accord, such as sheep, horses, hens, etc. Tamed animals are those which indeed are born to natural liberty, yet by man's industry are deprived of it, and become accustomed to his society, such as birds which are tamed by art and industry, doves, bees, etc. Many add a fourth class, namely those gone wild, which either have now put off a connatural tame disposition, or after they were tamed have resumed their former wild one. - Cf. Baller., note (a) and (b), p. 500.

I say 1st. Wild or undomesticated animals become the property of the first occupier, because they belong to no one, and otherwise their occupation is licit by natural right. But if they have been reduced into someone's dominion, they belong to him as long as they are kept in custody and have not recovered natural liberty. But they are considered to have recovered liberty when they have escaped custody in such a way that pursuit of them is difficult; and then they so cease to be under dominion that they can become the property of another occupier, just as if they had never had an owner.

I say 2nd. Animals wild by their own nature, but tamed, remain with the prior owner as long as they have not escaped his custody or have not lost the custom of returning; for animals of this kind belong to the possessor both by reason of occupation and also by reason of training and detention. But if they have escaped the custody of the owner or have lost the custom of returning, they become the property of another first occupier, because they have recovered their first nature.

I say 3rd. Tame or domestic animals always belong to the first owner, however much they wander; whence they cannot be occupied by another. The reason is that domestic animals can never be said to have recovered their liberty, since from their own nature they are judged to have no liberty.

You Will Resolve. - 1st. A swarm of bees which has flown out from your hive is yours up to that point as long as it remains in your sight and pursuit has not become difficult for you; otherwise it becomes the property of the first occupier. Yet he who finds in another's field a tree in which a swarm of bees is contained does not by this already acquire dominion, but it is necessary that he enclose them in a hive. - Cf. Kenrick, loc. cit. n. 56. - Kent, Comment., vol. 2, part 5, lect. 35, n. 350.

2nd. Doves going off by their own movement, without having been attracted by fraud, become the property of him in whose dovecote they settle. Otherwise if they have been attracted by fraud, e.g., by wholly extraordinary or very choice food. Cf. Lugo, disp. 6, nn. 42 and seq.

3rd. Fish which are in the sea or in navigable rivers and into which the tide of the sea ascends, belong to those taking them; but in lesser rivers the right of fishing is generally reserved to neighboring owners of the banks. - Cf. Kenrick, loc. cit. n. 57. - Kent, Comment., vol. 3, part 6, lect. 52, nn. 411 and seq.

4th. He violates justice who takes oysters in that part of rivers where they have been reserved by another, or in which someone has an exclusive right of fishing; for through this they are reputed enclosed.

5th. He does not sin against commutative justice who hunts or fishes on another's land without his license, provided nevertheless that the land is accessible, or, if it is enclosed, is of such extent that individual animals can easily escape the hunter or fisherman; because animals of this kind are neither part of the land nor can they in these circumstances be considered as already apprehended by the owner of the land. - Cf. Lugo, disp. 6, n. 72.

6th. A wild animal wounded or caught by a snare belongs to the one wounding or to him who set the snare, if it is so wounded or caught that it is not going to escape, because then, and not otherwise, it will be said to have been apprehended. - Thus the theologians, with whom our Kent agrees, who says: "The possession must be so far established by the aid of nets, snares, or other means, that the animal cannot escape." - Cf. St. Alphonsus, n. 604; and Hom. Ap., n. 71. - Kent, Comment., vol. 2, part 5, lect. 35, n. 348.

Goods which can be found are distinguished into four kinds, namely: treasures, things recently lost, abandoned goods, and vacant goods. It will be said in particular concerning each what they are and to whom they belong.

I. Treasure from Roman Law is a hidden sum of money, of which no memory exists. But according to the laws of many nations, just as among us, by the name of treasure today is understood not only money, but also any other hidden movable thing estimable in price. - Wherefore Kent says: "Goods found hidden in the earth go under the denomination of treasure-trove." - Cf. Kent, Comment., vol. 2, part 5, lect. 35, n. 358. - Kenrick, loc. cit. n. 61. - Crolly, vol. 1, n. 641.

I say 1st. Treasure by natural right certainly belongs to the finder, if the finder is also the owner of the land. But if treasure is found on another's land, indeed much is disputed, but a probable opinion holds that then also the treasure belongs to the finder. The reason is that treasure cannot be held as a part of the land, and therefore the same must be established concerning it as concerning wild animals captured on unenclosed land.

I say 2nd. From Roman Law treasure also belongs to the finder if the finder is at the same time the possessor of the land where the treasure lay; otherwise it must be seen whether he found the treasure by chance or by industry. If by chance, he has a right to the half part; if by industry, the whole treasure yields to the owner of the land. Yet observe 1st. that there is required a sentence of a judge which declares industry to have been present, in order that the finder be held to hand over to the owner of the land that half part of the treasure which, if industry had been lacking, he could have retained for himself; 2nd. that owner of the land here means the one who has direct dominion; 3rd. that the finder is considered not the one who first touched the treasure, but the one who saw it or rendered it visible.

I say 3rd. From English law all treasures belong to the king, not only when they are found in some part of the national dominion, but also when they are found in some private field. Indeed, formerly those who hid found treasure were punished with capital punishment. Yet that law seems to be only penal; for, as Crolly notes, scarcely today is there a man of timorous conscience who would not retain found treasure. - Cf. Crolly, n. 642.

I say 4th. As regards this region, excepting Louisiana, where the dispositions of Roman and French law are in force, in the other States the laws establish nothing concerning treasure, and therefore the question is to be solved according to the norm of natural right, which always favors the finder. - The State of New York had imitated English law in this matter; wherefore every treasure found there belonged to the treasury, but this disposition was omitted in the revision of the laws of that State. - Cf. Kenrick, loc. cit. n. 61. - Kent, Comment., loc. cit. n. 358.

From the things said you will gather 1st. that little stones, gems, amber, coral, found on the shore of the sea or elsewhere, belong to the finder, because these are not part of the land; 2nd. that mines of iron, lead, coal, silver, gold, etc., belong to the owner of the land, both because these are considered part of the land and because our laws and customs so establish. - Cf. Kenrick, n. 59.

II. Things recently lost are those movable goods which are involuntarily left by the owner. They differ from treasure both because they are not hidden or buried, and because ordinarily they have been recently lost.

I say. It is certain that things recently lost are to be returned when the owner appears, because the fact of loss is not a title for stripping an owner of his thing. Moreover, from the saying received by all, "for retaining, intention alone suffices; but for occupying, real apprehension with a legitimate intention of having is required," it follows both that the owner has not lost the right, because he retained the intention, and that the finder has not acquired it, because the occupation was not legitimate.

Question 1. To what is the finder held immediately after the finding of the thing?

Response. Often he is held by charity to take up the thing lest it perish, and thus to avert the harm of the owner. But, the thing having been taken up, he is held by justice to care for it; for then between him and the owner there arises a quasi-contract which is called management of affairs. He is also held by justice not only not to conceal the thing, but also to apply suitable means by which the owner can be found; but those means are called suitable which are proportionate to the value of the thing and the circumstances of time, place, and persons. - Cf. Baller., note (a), p. 504.

Question 2. Whether, suitable means having been applied for discovering the owner, and he not appearing, you can retain the found thing?

Response. It is controverted; for many judge that the found thing must then be expended for the poor or for other pious uses, because the owner, since he still retains right in his thing, is to be presumed to have this will. - But other theologians say more probably that the owner has then wholly lost the faculty of using his own thing, and therefore no longer has dominion of it. Therefore the will of the prior owner is not to be sought, as of one who, having morally lost dominion, can dispose of nothing concerning it. Therefore that thing is morally to be held as abandoned and capable of becoming the property of the first occupier; and therefore if afterward the owner appears, since the thing has already been consumed, the price is not to be restored. - Cf. St. Alphonsus, n. 603. - Lugo, disp. 6, n. 140. - Lacroix, lib. 3, part. 2, n. 86. - Kenrick, loc. cit. n. 62. - Crolly, n. 415. - Kent, Comment., vol. 2, part 5, lect. 36, n. 356.

III. Abandoned goods are called those which the owner has cast away with the intention of no longer possessing them. This casting away can happen in two ways: either positively, when someone sends away among useless things clothing already worn out, perforated shoes, or something similar; or negatively, when someone gathers those things which he desires to retain, caring nothing about the rest, as, e.g., happens concerning ears of grain and grapes after harvest or vintage.

I say. Abandoned goods, whatever the manner of abandoning may be, licitly become the property of the first occupier. The reason is that as soon as they have been abandoned, they have become goods of no one, and therefore capable of occupation. Yet the custom of the region is to be regarded when the discussion is about goods abandoned negatively, because from custom it is known whether the owner had the intention of casting away dominion.

You Will Ask. Whether those things which are found in the sea, or near the bank after shipwreck, or cast away from fear of it, are to be reputed abandoned goods?

Response. Negatively; and the reason is that the owner did not have the intention of casting away those goods, and he always retains the hope of recovering them at least partially. Positive laws also stand in the way. Hence the supreme assembly of the United States in the year 1825, sect. 9, established: "If any person shall plunder, steal, or destroy any money, goods, merchandise, or other effects, from or belonging to, any ship or vessel, or boat, or raft, which shall be in distress, or which shall be wrecked ... every person so offending shall be guilty of felony, etc." It is said in the question after shipwreck or cast away from fear of it, because goods which were voluntarily left for saving life or the ship (derelict at sea) are to be distinguished from those (wrecks) which come from the breaking of the ship without any act of the will. - But the response applies to both cases. - Cf. Kenrick, nn. 65 and 66.

IV. Vacant goods are all those which are left by a deceased person who neither has heirs nor made a testament.

I say. By natural right vacant goods become the property of the first occupier, for they no longer have any owner. But by positive right, also prevailing among us, these goods are adjudicated to the treasury; but this seems to be restricted to immovables only, at least before the sentence of a judge. - Cf. Carriere, nn. 285 and 359. - Kenrick, n. 63.

You Will Ask. What must be said concerning the goods of foreigners who have died in this region without a testament, but nevertheless have natural heirs?

Response. Those goods certainly cannot be called vacant, because although in some States they are adjudicated to the treasury, nevertheless by natural right they pass to the heirs. - I said in some, because in Maryland, Pennsylvania, Illinois, and Ohio those goods are distributed to the heirs after the manner of goods which belong to citizens. Where this liberality of laws is not in force, Kenrick thinks that those natural heirs are obligated only in the external forum not to receive those goods. - Cf. Kenrick, n. 64. - Kent, Comment., vol. 2, part 4, lect. 25, nn. 61 and 70.

Prescription is a means instituted for acquiring some right or for freeing oneself from some obligation, under conditions established by law. Hence it is clear that there is a twofold prescription by reason of matter: one acquisitive, by which some right is acquired; the other liberative, by which someone is freed from some burden or servitude. Although indiscriminately each is called prescription, nevertheless in law the first is called usucapio, and the second simply prescription. - Cf. Scavini, lib. 2, n. 386.

I say. Prescription clothed with the due conditions is a legitimate means of acquiring dominion, even in conscience; for not only civil and canon law in very many places hold it as legitimate, but natural right also, although not immediately, seems to require it, both for establishing certainty of the dominion of certain things, and thus for putting an end to lawsuits, and for preventing the negligence of owners. Wherefore, according to St. Thomas, if someone has truly prescribed, he is not held to restitution if afterward the former owner appears. The Church receives prescription, as a mode of acquiring and of freeing oneself, according as it is in the civil legislation of the respective nation, for ecclesiastical goods, with the prescription of the canons which follow being saved (Can. 1508). - But the conditions for prescribing legitimately are five, namely, aptitude of the thing, good faith, title, fact of possession, and the time required. These conditions are altogether necessary, and indeed understood according to the laws of the place in which prescription takes place. The reason is that the immediate force for transferring dominion through prescription is taken from human law. Cf. St. Thomas, Quodlib. 12, q. 16, art. 24. - St. Alphonsus, nn. 504, 507, and 517.

The conditions for prescribing are usually expressed by these little verses:

You will not take by use, unless these five things be yours: Let there be an apt thing, faith, title, possession, time.

A few things must be said concerning each.

All and only those things generally are subject to prescription which come under dominion and private commerce, and for the acquisition of which there can be a title that is legitimate both by the right of nature and by positive right. - For since the end of prescription is to transfer dominion by the authority of law, such a transfer cannot be made concerning a thing which from its own nature or from the disposition of laws cannot come into the dominion of private persons.

The following are not subject to prescription:

1st. Those things which are of divine right, whether natural or positive;

2nd. Those things which can be obtained from apostolic privilege alone;

3rd. Spiritual rights, of which laypersons are not capable, if there is question of prescription for the advantage of laypersons;

4th. The certain and undoubted boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys, or prelatures nullius;

5th. Alms and burdens of Masses;

6th. An ecclesiastical benefice without title;

7th. The right of visitation and obedience, so that subjects can be visited by no Prelate and are no longer subject to any Prelate;

8th. The payment of the cathedraticum (Can. 1509).

§ 1. Sacred things which are in the dominion of private persons can be acquired by prescription by private persons, who nevertheless cannot employ them for profane uses; but if they have lost consecration or blessing, they can freely be acquired even for profane uses, yet not sordid ones.

§ 2. Sacred things which are not in the dominion of private persons can be acquired by prescription not by a private person, but by an ecclesiastical moral person against another ecclesiastical moral person (Can. 1510).

Good faith in this matter is conscience or sincere estimation by which someone judges that the thing possessed by him is his own.

I say. Good faith is altogether required not only for acquisitive prescription, but also for liberative prescription. The reason is that formal injury cannot pass over into right; wherefore St. Thomas says: "those things which cannot be without sin are strengthened by no prescription." - This is confirmed from the 2nd rule of law in 6, which reads thus: "A possessor of bad faith prescribes at no time."

No prescription is valid unless it rests upon good faith, not only at the beginning of possession, but through the whole time of possession required for prescription (Can. 1512).

Nevertheless, if the discussion is about prescription for freeing you from some passive servitude of rural estates, good faith consists in this, that no obstacle be placed by which another is impeded from the use of his right. The reason is that the one prescribing is bound by no debt toward him against whom he prescribes; nor is he held, while the time of prescription is running, to warn the other to use the right of servitude against him. I said of rural estates, because in urban servitudes, since one cannot prescribe against them without some positive act of the one prescribing, it is required that this be placed with good faith.

Hence it follows that the dispositions of civil law, insofar as they do not require good faith, or require it only at the beginning of possession, have no force for the internal forum, and are to be held as a mere denial of recourse, that is, of action against another.

You Will Ask. Can an heir who is ignorant of the bad faith of his predecessor ever legitimately prescribe?

Response. Negatively, as it seems, if he succeeds by universal title, because an heir of this kind so represents the person of the deceased that he succeeds to all his obligations and burdens; and therefore, since the predecessor on account of bad faith could never have prescribed, neither will the heir be able, because that radical defect is transmitted to him. And the same must more probably be said concerning one who succeeds mediately, provided nevertheless that the succession is by universal title. - Cf. St. Alphonsus, nn. 512 and 516. - Lugo, disp. 7, nn. 59, 60, and 61. - Baller., note (b), p. 516.

Title is that upon which the transfer of dominion rests, and it answers the question: why do you possess? Omitting here both true title, about which there can be no controversy, since no one prescribes against himself, and defective title, which, since it lacks some condition required by law, can be of no utility, three other titles are enumerated, namely colored, putative, and presumed. The first is the appearance of a cause sufficient of itself for transferring dominion, but laboring under a hidden nullity, e.g., if I buy a thing from Titius, thinking it to belong to Titius, when it belongs to Martin. The second is present when it is prudently believed that a true title intervened, although it did not intervene, e.g., if a son from inheritance possesses a thing which is thought to have been bought by the father, when it had not been bought. The third finally is reduced to length of time. - Cf. Scavini, lib. 2, n. 388.

I say. Colored or putative title is required for prescription and suffices: at least one is indeed required, for if both are lacking, good faith also will be lacking, without which prescription is not had; but one of the two suffices both because thus good faith is preserved, and because otherwise true title would be required, which is absurd. Wherefore presumed title is either reduced to putative title, if the discussion is about prescription of the longest time, or it will be valid only for the external forum; for prescription in the forum of conscience without good faith, as has already been said, is repugnant; on the other hand, good faith is not possible when only presumed title is present, especially after a brief time from the beginning of possession. - Cf. Baller., note (b), p. 509; and (c), p. 511.

Possession is the holding of a thing, or the enjoyment of a right, which someone exercises by himself or through another, yet in his own name. Holding of a thing is called possession simply, and enjoyment of a right quasi-possession. Each is divided into natural, civil, and mixed. Cf. Schmalzgr., lib. 2, tit. 12, n. 4. - Baller., note (a) and (b), p. 508.

I say. Possession is altogether required for prescription, which is clear both from the 3rd rule of law in 6: "Without possession prescription does not proceed"; and from the very nature of the thing. But in order that it be apt for prescribing, it must enjoy various conditions; namely, it must be 1st. dominative, or the thing must be had with the mind of a proprietor, but not of a depositary, lessee, etc.; 2nd. tranquil, so that no joinder of issue concerning the thing has intervened; 3rd. certain, that is, not equivocal; 4th. continued or not interrupted, until the required time is completed. - Many also require that it be public, namely that the thing not be hidden from him against whom prescription is made; but this condition is necessary only for the external forum, because for the internal forum it is already contained in good faith.

It is certain 1st. that some time is required for prescription, as is clear both from the word usucapio itself and from all positive laws; 2nd. that in fact this time is longer or shorter according to the diversity of laws and the nature of the thing subject to prescription; for movables, generally speaking, are prescribed more quickly than immovables.

In this region, given the multiplicity of States which make their own laws for themselves, there is great variety in the duration of the time required for prescribing. Wherefore for immovable goods in the State of Maine 40 years are required; in Alabama and Louisiana, 30; in Kansas, Nebraska, Ohio, Pennsylvania, 21; in Connecticut, Vermont, and Virginia, 15; in Indiana, Michigan, Mississippi, and Nevada, 10; in Florida, Georgia, N. Carolina, S. Carolina, and Tennessee, 7; in California, 5; in the other States, 20. But for movable goods still less is required. Cf. Wells, Every Man, etc., p. 321. - Bouvier, Law Dictionary, under the word Limitation.

In the new Code a distinction is made:

§ 1. Immovable things, precious movables, rights and actions, whether personal or real, which belong to the Apostolic See, are subject to prescription by the space of one hundred years.

§ 2. Those things which belong to another ecclesiastical moral person, by the space of thirty years (Can. 1511).

You Will Ask. When is prescription called interrupted, and when suspended?

Response. It is called interrupted when, on account of an impediment interposed, it so ceases that it must be begun again. But this can happen in a twofold way: 1st. naturally, if the one prescribing loses possession for the time determined by law, or if bad faith supervenes; 2nd. civilly, if a lawsuit is juridically moved concerning possession, and the interpellation has not been rejected by the judge. - But it is called suspended when an impediment is set against it so that it does not proceed further, and this can happen in two ways: 1st. by reason of persons, as, e.g., minors, the insane, captives, and generally all who, whether from the right of nature or from the disposition of positive law, cannot act against one willing to prescribe; 2nd. by reason of some extrinsic cause, e.g., plague, war, etc., which makes it so that a person otherwise capable cannot act. - Cf. Wells and Bouvier, loc. cit.

Accession is a mode of acquiring dominion in some thing, because that thing is added to our thing; this can happen either with nature alone operating, or by art, or by both at once. Hence a threefold accession is distinguished: natural, artificial, and mixed.

I. Natural accession happens in two ways: 1st. by birth, or when another animal is born to our animal from intermixture with another's: in this matter the axiom is, the offspring follows the womb; 2nd. by alluvion, which, if it is slow and extends my land either by the bringing of new earth or by the recession of a river, that addition will belong to me; but if it is sudden, ownership is no longer computed to the middle line of the water, but to the former limits.

II. Artificial accession can also happen in two ways: 1st. when my art or work is joined with the thing of another, which is called accession by specification, and then if this has been done in good faith, generally speaking among us, that which results through such specification will be given to him who performed the work, with the burden of paying the price of the thing to the other; 2nd. when my work and my thing at the same time are joined with the thing of another, and then either accession by adjunction is had, if that which results can in no way be separated, as would be a painting with my colors and made by me on your wall, in which case the thing belongs to him who placed the more precious element; or accession is had by confusion or commixture, as, e.g., if from my grapes together with yours I made wine, or from my ears of grain and yours I gathered wheat, and then, good faith standing, the thing must be divided according to the principles of equity; otherwise the laws favor him who has suffered injury.

III. Mixed accession is had when, with nature and art operating at the same time, some thing accedes to my thing; e.g., if you should plant your trees in my land: moreover, in this case the thing will belong to the owner of the soil, due compensation having been furnished. Hence the two following verses:

Whatever is planted, sown, or built, Everything yields to the soil, if nevertheless it has put forth roots.

Yet observe that if the discussion is about those who among us are commonly called squatters, Kenrick says that the laws favor them, lest fields lie uncultivated. Cf. Kenrick, nn. 67 and seq. - Bouvier, Law Dictionary, under the word Accession.