§ 3. Supplements to the Doctrine

217. Concerning Hunting and Fishing, by which wild animals and fish are occupied.

1) It follows from what has been said that wild animals and fish are formally acquired by the fact that they are properly captured or are judged morally captured, because, for example, on account of the narrow enclosure or pond in which they are contained, they can easily be apprehended. Therefore, it is not enough for acquiring dominion over them that they are or remain upon your land. Indeed, not even because they are so contained by enclosures that they cannot escape will the wild animals already become yours, if, nevertheless, on account of the size of the place they are considered to have been left to their natural liberty. The theologians sufficiently agree upon this conclusion, so that our opinion concerning occupation is thereby confirmed. Cf. Molina, disp. 41, no. 11.

2) Yet the right of hunting per se belongs to the owner of the field. In this right either he himself or another to whom he has transferred the right can suffer damage from the illicit hunting of others, which must be compensated by restitution. The same must be said concerning the right of fishing.

3) Moreover, laws are accustomed to provide that hunting not take place at certain times of the year, and that fish not be caught with any and every instrument; they also generally establish certain conditions for one hunting in his own field. For they wish the very species of wild animals to be preserved, lest those who take pleasure in hunting should soon be deprived of their recreation. Nor is the public authority prohibited from issuing decrees of this kind.

Yet it easily happens that measure is exceeded in these matters. For neither should the right of hunting, fishing, etc., which has been granted by nature, be rashly restrained; nor should excessive penalties be established for private persons who take for themselves a wild animal which is not permitted; nor can the lawful privilege of some be excessively harmful to others. Hence, if cultivators of fields suffer losses from multiplied wild animals, they must be furnished with an expeditious right to appropriate compensation. Molina already treats this argument excellently; he may usefully be consulted in disps. 43 and 45, and especially disp. 46, nos. 1-2.

A question was recently raised in Belgium concerning rabbits, and a greater faculty of destroying them was rightly granted to cultivators of fields, a faculty which cannot be derogated by private agreement.¹

¹ Cf. Documents of the Supreme Council of Agriculture, published in 1898, and the law of April 4, 1900 (Moniteur, May 13).

4) Apart from damage to private persons, theologians assign to these prohibitions against hunting and fishing only the force of penal laws.

218. Concerning coal seams and other things of this kind, Lessius already judges (chap. 5, dub. 12) that they per se belong to the owner of the land in which they are found; and those who wrote after him sufficiently agree. They bring forward the reason that the owner of the soil possesses the deepest ground. It can certainly be so established by laws.² Yet per se, according to our opinion, seams which lie deep in the earth in such a way that they can be worked while the surface remains untouched are not in reality occupied for the reason that you have built upon the soil or have begun to cultivate the field. For you neither exercise dominion over these seams nor have you thought of obtaining any such utility from the thing. Therefore, they belong to no one until, by digging the earth, you have brought it about that your occupation extends to those seams. But from the right which per se belongs to individual possessors to dig their own land, and from the necessity, in order to work mines or seams usefully, of driving tunnels beneath many domains, many controversies and lawsuits will easily flow. Hence this right of mines is customarily governed by special laws.

² “Ownership of the soil carries with it ownership of what is above and below.” Thus the French Civil Code, art. 552; but art. 905 of the German Code already speaks less absolutely.

219. Occupation through another. Those acts in which occupation consists can be performed either through ourselves or also through others who perform them in our name.

220. The historical process of property, whatever it may have been, is not altogether established; yet it seems to have no bearing at all upon the truth of the thesis. For even if land was assigned to each person in the beginning through some exercise of jurisdiction, this by no means takes away the native force of occupation. Indeed, among the Scholastics, who all adhere to the doctrine concerning occupation, not a few at the same time ascribe the division of fields to one of the first patriarchs, such as Noah. But D. Cauwès³ is greatly mistaken when he thinks that the fact that the first possessions were common to some family is opposed to this doctrine concerning occupation, as though the rationale by which a few men in common and that by which one man alone make some thing their own were different.

³ Cf. Cauwès, Cours d'économie politique [Course of Political Economy], vol. 3, nos. 961-962. Indeed, he confirms the thesis when he writes: “Formerly it [occupation] was indeed the origin of property, but not of individual property.”

221. Under what rationale property is preserved. This is the force of the reasons which demand stable property: they show that a thing which began to belong to someone by true occupation remains his by the intention alone of preserving it, so long, however, as the faculty of using it has not altogether perished of itself. For to what end is property—that is, the inviolable faculty of using and disposing of some thing—when the faculty of using it itself has departed? Hence, by death the bond by which a thing was joined to its owner is dissolved; hence wild animals which have recovered their former liberty, and things so lost that the hope of finding them has vanished, must also be considered things belonging to no one; and both by confusion, by which money or a similar thing is so mixed with another's money or things that it can no longer be distinguished, and by specification, by which a thing has completely changed its kind (as when a statue is produced from marble), dominion over the very bodies of those things perishes. Nevertheless, there remains in the person to whom they have come a personal obligation to repair the damage in proportion to the profit made or the fault committed. For specification is the production of a new thing from another's material. Yet there is not the same agreement that, once specification has taken place, the material belongs to him who employed it; and the matter is customarily defined more precisely by positive laws.