Section I. Occupation

Occupation is the taking possession of some material thing with the intention of making it one’s own. It will be a lawful title to ownership of property if the thing occupied had previously no owner, and actual possession is taken of it with the purpose of making it one’s own. If these conditions be fulfilled, it seems useless to investigate further how occupation is capable of conferring property. Whether the fact of occupation sanctioned by the community is sufficient, or whether we say that by occupation a man’s labour is mingled with the thing, and thus the connection of ownership is set up, is really immaterial. It is a title universally acknowledged and is derived from Nature herself.

As is clear from the definition, there cannot be occupation without actual, or at least constructive, taking possession of the thing, whether it be movable or immovable; it is not sufficient merely to see the thing at a distance, nor is it enough to take hold of it with the intention of seeing what it is, without any idea of retaining it for one’s own.

Most things of value, especially the land, have owners already, and so a title to ownership by occupation can only arise with reference to certain classes of property which are not of very great importance. In moral theology this title is at the root of ownership derived from finding lost property, treasure-trove, and the capture of fish and wild animals. Here English law only partially agrees with what seems safe in conscience.

The finding of things of value without an owner confers ownership in the things found if they be taken possession of with the intention of making them one’s own. Whether they ever had an owner or not is immaterial in conscience, provided that they have none at present. English law, indeed, grants property which belonged to someone who died intestate and without heirs to the Crown, under the name of bona vacantia, and when such property is claimed by the Crown, its title of course prevails. If the Crown does not claim the property, the first who should occupy it would seem to be safe in conscience if he kept it. The same doctrine may be applied to wreck found, which positive law requires to be delivered to the receiver of the district, and this officer, if no owner appear within a year, sells the same and pays the proceeds into the Exchequer.

Any money, coin, gold, silver, plate, or bullion, found hidden in the earth or other private place, the owner thereof being unknown, is called treasure-trove. By English law it belongs to the Crown, but if the Crown does not claim it, the finder would be justified in keeping it.

One who finds property that has recently been lost may be bound in charity to take possession of it and try to discover the owner, but there is no obligation to do so in justice. If, however, he take possession of it, he is bound in justice to take reasonable care of it, and to use ordinary diligence to discover the true owner. On the true owner being discovered the finder has a right to be compensated for any expenses he has been put to in consequence of keeping the property, but he must deliver it up to the owner. As English law does not grant prescription in movables, this doctrine will hold even though the owner be discovered after the lapse of years; if the property still remains intact or in its equivalent, it belongs to the original owner and must be restored to him. The finder of lost property acquires thereby a qualified property in it which is valid against all save the true owner, and if the true owner cannot be discovered within a reasonable time, the title of the finder becomes absolute, and he may use it as his own.

Animals are either domestic, tamed, or wild. The property in domestic animals such as dogs, sheep, kine, pigs, always remain with the owner, however much they may stray, as long as they are not so utterly lost that there is no hope of finding the owner. Such animals always belong to their original owner as long as he can assert his ownership over them, in the same way as his household furniture belongs to him. Wild animals which enjoy their natural liberty and go where they please belong as a general rule to him who first captures or kills them. Such a one makes them his own by occupation, for before he took them they belonged to no one. English law has modified this general rule to some extent, for if a trespasser capture or kill a wild animal on another person’s land, it belongs to the owner of the soil on which it has been started and killed; if a trespasser start an animal on one person’s property and kill it on another’s, it belongs to the owner of the former. These rules of positive law give the owner of the property at least the right to vindicate his claim, which cannot then be lawfully resisted by the trespasser.

Animals which have been tamed, such as pigeons, bees, young pheasants that have been hatched under hens, belong to their owner as long as they retain the habit of returning to his premises, but if they lose that habit and recover their natural liberty, they belong to the first who takes them, like wild animals. Animals which are enclosed like deer in a park, rabbits in a warren, or fish in a pond, belong to the owner of the enclosure, as long as he can exert his control over them. If they recover their natural liberty, they are primi occupantis.

A poacher may be guilty of sin by damaging the property of another by trespassing on it, and from the fact that he exposes himself to grave personal risk or to the danger of violently resisting lawful authority if he is caught. By the mere fact of capturing wild animals he does not commit a sin against justice, unless he kills so many in a particular property that the right of killing game therein is seriously lessened in value, and the owner in consequence suffers considerable loss, because, for example, he cannot let it at so high a price.