Section — Vermeersch, Theologia Moralis
§ 1. On Occupation
Order of Discussion. - Having set forth the notion of occupation, we shall treat successively of vacant goods, of animals, of things recently lost, and of things lost in battle or shipwreck.
What Occupation Is. I. Occupation is the apprehension of a thing belonging to no one, with the intention of having it as one's own. An apprehension is required which is suited to show that the thing, according to its nature, is subject to someone's power, or serves him for a use which cannot be common. Such a fact connects an exterior thing with a particular person, so that it appears specially assigned to him; and thus it leads from the abstract right of property to the concrete, after the regime of a stable division of goods has been expressly or tacitly recognized. Occupation is called a primordial fact, or a title which of itself gave origin to private possessions.
II. On Vacant Goods. Can vacant goods be occupied, and how? Goods are understood to be vacant both when they have belonged to no one, and when they have been loosed from the bond to an owner. In this way abandoned movable things and animals are occupied.
But very many modern laws assign vacant immovable goods to the State. Therefore concession must be made to the treasury when it claims those goods for itself. But there is of itself no obligation to manifest these goods to the State; and, so long as the State does not claim them, natural occupation seems by no means impeded.
More severely, however, the moral theologians of Holland more commonly think that, according to the national Code (576), a right of commutative justice is acquired for the treasury in those goods from the beginning, especially in a vacant inheritance. Thus van Gestel, S.J., De iustitia et lege civili, LXI, 111-118; Cornelisse, Compend. theol. mor., II, 99; Duynstee, 111, though Marres, De iustitia, I, 281, is contrary.
Also notable is the law of several States of North America, by which the goods of foreigners who have died without a testament are equated with vacant goods, so that they can be claimed by the treasury. Yet, if a claim is excluded, it seems lawful for sons or nearer blood-relatives, relying on a natural title everywhere valid among nations, to take those goods for themselves. Nor do they condemn him who, passing over relatives, has assigned those goods not indeed to himself but to the poor or to a pious work. Cf. Kenrick, tr. X, n. 64; Sabetti, n. 381.
The German Code, however, art. 928 compared with art. 190 of the introductory law, has so established that the State can make vacant immovable goods its own; and those goods are acquired for the State through inscription in the registers of immovable things (Grundbuch).
III. On Animals. A. From natural law: 1. Animals are distinguished as tame or domestic, to which tamed or domesticated animals are reckoned, and wild, savage, or grown-wild animals. The former, from the very habits which they either commonly have, as if by their nature, or have acquired by training, show that they are under the dominion of men, even when they have escaped the custody of the owner. The latter either preserve or have recovered a disposition impatient of the yoke.
- Tame animals have an owner. Therefore, unless they have been abandoned, they cannot be occupied; and one who has freed an animal from fire or another danger must return it to the owner, after receiving compensation for labor and for damage, if there has been any.
Nevertheless it is permitted (by natural law, but not by positive law), by a certain title of defense, to kill, if necessary, birds of small value (pigeons of a dovecote) which, for example, at seed-time or harvest notably cause harm.
Tamed animals, and also captured wild animals, do not fall out of ownership (standing by natural law) unless, having become wild or fugitive, they cannot easily be caught, so that a new hunt properly so called is necessary. Therefore neither a pigeon which has merely changed dovecotes (contrary to what many say), nor a lion which, in a town, has escaped the cages in which it was confined, can of itself be occupied. Positive civil law is accustomed to make some enactment concerning pigeons, and, by a certain right of accession, to assign to the owner of a dovecote those which, attracted without fraud, have passed from another dovecote into his own. A similar disposition is sanctioned concerning rabbits and fish which have migrated into another warren or fishpond (art. 462 Italian Civil Code). But beware lest you confuse ordinary pigeons with those special ones which are called "itinerantes" and, marked with the sign of their owner, are often sold for a great price.
A swarm of bees, so long as its pursuit is easy, belongs to the owner of the hive from which it has flown out. Afterwards, by natural law, it becomes the property of the first occupant.
Wild animals belong to him in whose physical dominion they are and remain. If they are in no one's dominion, they can be occupied by hunting. Nevertheless, there can be violated either the right by which anyone is permitted to exclude others from his land; or the exclusive right of hunting which the owner reserves to himself (Ital. Code art. 712); or the exclusive right of fishing which usually belongs to someone from ownership of the land or from lease. Therefore: a) animals or fish which are kept in an enclosed place in such a way that the individual bodies can be apprehended rather easily cannot be occupied, but belong to the owner of the land or pond; - b) even if the individual animals are not occupied, in conscience and by the law of damages he is bound who, by the quantity of the catch, has made the exclusive right of hunting or fishing worse; - c) and although, even on another's land, a wild animal is acquired by occupation by him who has killed it, or has wounded it or caught it in a snare in such a way that it will not escape from his hands, and fish belong to him who has taken them with hook or net, nevertheless it is readily admitted that the owner of the land, if his possession has been violated, may take the prey for himself by a certain right of compensation.
Nor is the good faith of one said to be disturbed who has carried off fish caught in another's fish-trap, while the fisherman was absent, as though they had not yet been apprehended.
Some recent authors, Cornelisse, II, 69; Duynstee, 142; Prummer, II, 42, 4 (at least when the place is enclosed, though very large), assert an obligation of making restitution to him whose exclusive right of hunting or fishing has been violated, according to the proportion of the hope which he had of catching those wild animals or those fish which another has occupied. Namely, these authors seem to understand the privilege of hunting or fishing as though the individual bodies already belonged to the privileged person in proportion to the hope, and therefore were occupied, while wild animals are occupied under no respect. But the value of the right of hunting or fishing, which is to be considered here, is estimated from the hope of catching not a definite animal, but indefinitely some animals. The capture of a few bodies by no means changes that value.
Laws concerning hunting and fishing, however, are commonly held to be penal. Yet R. P. Prummer, II, 42, 1, denies that this is today universally true, because it is of interest to the common good that laws of this kind be enacted: we doubt, however, that this reason suffices for the intended conclusion, since even necessary laws can be penal. Moreover the distinguished author, n. 44, permits the confessor to accommodate himself to the accepted persuasions of the place.
B) Positive Laws. 1. Latin law. By the Code of Italy, one may not enter another's land against the owner's will for the exercise of hunting (712); nevertheless this is permitted for pursuing a swarm of bees or tamed animals. But when, after two days, the pursuit of a swarm of bees has ceased, or when tamed animals have not been claimed within 20 days, the swarm can be occupied by the possessor of the land on which it has settled; tamed animals can be kept by those who have caught them (713). Art. 462 provides that pigeons which have migrated into another dovecote, rabbits and fish which have migrated into another warren or fishpond, are, by a certain right of accession, assigned to the owner of the dovecote, warren, or fishpond who has used no art or fraud. The right of hunting and fishing, however, is governed by particular laws. In the Code of France art. 561, the same is established concerning pigeons, rabbits, and fish; and this also holds in Belgium. When pursuit ceases, the French law of 1 April 1889 assigns a swarm of bees to the owner of the land on which it has settled. According to Belgian law (Rural Code art. 14), when pursuit ceases, bees become the property of the first occupant. If no one occupies them, they are assigned to the owner of the land where they have settled, or to him who has leased the land or enjoys its use.
By Spanish law, the same things as in Italian law are provided in art. 613 concerning pigeons, rabbits, and fish; concerning tamed animals and a swarm of bees (art. 613). Entrance upon another's land for pursuing a wild animal, however, is not prohibited; it is also permitted by the Austrian Code (384). - Similar things, though not strictly identical, are established by other Latin laws. By the law of the Argentine republic art. 2577, if hunting is done without the owner's permission on another's enclosed, planted, or cultivated land, the animals belong to the owner of the land, apart from the right of demanding those things by which he may be indemnified. By the Swiss Civil Code (719 and 725), a swarm remains in the ownership of the hive from which it has flown away, unless it has joined itself with a hive already occupied by the bees of another owner.
In the Canadian Code Q., the same must be said concerning pigeons. As regards a swarm of bees, the owner of the hive can pursue the bees even on another's land; but he loses his right if the swarm enters a hive already inhabited. If the owner does not pursue the swarm, another pursuer succeeds him in right. If no one pursues, it becomes the property of the owner of the land on which it has settled, unless the owner of the hive from which the swarm flew away claims the swarm.
By the German Code, unless the owner immediately pursues a wild animal which has fled away or a swarm of bees, or if he has ceased from pursuit, these are considered to be without an owner (arts. 960, 961). The owner of the swarm can pursue it on another's land, indeed can draw it out of a hive which it has entered, if that hive was empty; for if it was already occupied by bees, it is assigned to the owner of the hive. If one swarm is made from several swarms, those pursuing become co-owners. - Concerning hunting, fishing, and damages to be paid because of the keeping of wild animals, particular laws are in force (art. 69 ff. of the introductory law).
By the law of England, a wild animal is assigned to the owner of the field in which it has been driven out and killed; but if it has been driven out in the field of one man and killed in that of another, the owner of the former field is preferred to the other; and therefore it must be given to him, at least if he claims the animal. (Cf. Encycl. Brittan., art. on Game Laws, 11, p. 440, 11th ed.)
By the law of the U.S.A., wild animals, by reason of the soil, belong to the owner of the field in which they are found or are killed. Those which are driven out in the field of one man and killed in that of another belong to the hunter, who nevertheless will have to satisfy each owner (for the field usurped). - Fugitive animals are considered as abandoned, unless the owner pursues them at once. - By the name "estray" is meant a tame animal whose owner is unknown. By occupying it, one obtains a title by which he is preferred to all, except the owner; and from the owner he can seek the expenses of feeding; indeed, certain formalities being observed, the occupant can become the owner simply.
For conscience, it will help to add this. Those civil dispositions, which by their definitions intend to take counsel for peace and concord, can be observed and urged by him whose interest it is. But before anyone has used civil law either peacefully or through a judge, another who by a title of natural law has kept or occupied the animal does not seem to be troubled in conscience. If, for example, someone, observing his pigeons which have entered another dovecote, has taken them back by pursuing them before the owner of the dovecote could have the intention of an owner toward those pigeons, what will prevent him from considering his pigeons as never lost?
On Things Recently Lost. A) From natural law. Things recently lost are not abandoned, and therefore cannot be occupied so long as hope shines forth of discovering the owner. Thus, by the law of nature, the finder must, from charity, gather up the thing where he can do so without notable inconvenience; afterwards, also from justice, care for the same thing, insofar as he is forbidden to make the owner's condition worse by his action. For by gathering up the thing, he has begun to manage the owner's affair, which another who found the thing is presumed would have done.
Nor does justice permit that you put the thing back where you found it, unless this be done without detriment to the owner. But a thing which cannot be preserved in its own species must be sold, so that thereafter the price may be given to the owner. Besides, from justice or from charity alone, according as otherwise he would make the owner's condition worse or not worse, he must use prudent diligence proportioned to the importance of the thing for finding the owner: for example, by notices in newspapers or by manifestation of the thing made to the competent official or office. From equity he can seek some remuneration; and if it has been promised, the owner must pay it together with the expenses of the managed affair.
If no hope remains that the owner will be found, his right has perished, so that the thing can be occupied. Some, however, answer more severely. And he is to be praised who gives the thing to the poor. One who has prudently judged that the thing cannot be recovered already becomes at least a possessor in good faith, who is permitted to enjoy the privileges of this. Cf. below.
B) Positive Laws. 1. Latin law. From the civil law of Italy, the finder must return the thing to the owner; if he does not know him, he must deposit it with the syndic (or municipal rector) of the place of finding. That magistrate must publish the deposit on two successive Sundays. Then, when two years have passed, the thing is assigned to the finder. The owner, however, must give the finder as a reward a tenth part of the value, up to two thousand lire, and a twentieth part of the sum or value exceeding two thousand lire (arts. 715-718). Better, as it seems to us, the Portuguese Code (413-421) indeed commands notification to the public authority, but permits the thing to be held by the finder, who, according to the varying value of the thing, after 45 days, after three months, after six months, or after a year, will be able to consider himself the owner, yet, in the last case, with a third part assigned to a definite work of beneficence. One can use these benefits of civil law, provided that he has complied with its conditions. But in French law, from art. 2279, the owner has for 30 years a personal action against the finder and his universal successors; and for 3 years a real action against another possessor in good faith. Many special laws concerning various cases must also be observed. Cf. Colin and Capitant, I, 853-856.
The Austrian Code (389-392) assigns a reward to the finder who has manifested the find in the prescribed manner; indeed, after a year, it assigns the thing itself, yet in such a way that, if the owner appears within the time required for prescription, he must restore to him that by which he has been made richer.
The Code of Spain, art. 265 ff., has things similar to Italian law; the Code of Holland has things similar to French law.
In the reward which is to be given to the finder, in the person to whom the found thing must be consigned, and in the assignment of the thing when there is no hope of finding the owner, the laws of Latin America vary. Thus the law of the Argentine republic (article 2569), after six months from the last notice given concerning the found thing, assigns the thing to the municipality, but to the finder only the reward; which he can also seek from the known owner to whom he returns it. The Brazilian Code (603-606) assigns a reward to the finder, but the thing to the State.
By Swiss law also, a found thing, if it exceeds 10 francs, must be reported to the municipal government; or handed over to the owner or administrator of the house or public building in which it is found. When these prescriptions have been fulfilled, the right to an equitable reward, indeed, after five years, to the thing itself, is acquired.
By German law, the finder must inform the owner or the one having right about the found thing; if he does not know them, he must make the public custodians themselves certain, unless the thing does not exceed three marks in value. From that notification given, or, if the thing does not exceed three marks, from the finding itself, a year runs, after which, if it has elapsed in vain, the finder can consider himself owner. Yet those who afterwards demonstrate their right can seek from the finder restitution of the thing which he is then considered to have had without cause. The finder has a right to a reward. The prescriptions of positive law being observed, the finder can use and enjoy its benefits.
The laws of England establish nothing special concerning these things.
In the U.S.A. provision is made variously by the statutes of the States; but the finder has no right to a reward, unless something has been promised, nor does he obtain title of ownership from that finding.
Things Lost in Battle or Shipwreck. are not abandoned, but are to be returned to their true owner who is known or is discovered. And plunderers of soldiers killed in battle are punished with grave penalties. But things which belong to a hostile army should not be returned to the enemy by citizens whose cause is just, but to their own republic which has claimed them. For they have a certain owner.
Except the right of equitable compensation which a private person, injured unjustly and harmfully by some State, can exercise upon the goods of that State. R. P. Prummer, II, 47, reports that he treated at length of booty taken in war in Linzer Qtft. 1918.
Special laws are accustomed to establish what must be done with things found after shipwreck in the sea or on the seashore. Attention must be given to the way in which those laws are commonly judged to bind conscience. Severely, in Holland, Duynstee, n. 145, condemns as theft the one who has kept as his own things lost by shipwreck. By similar positive English law, things found from shipwreck must be handed over to the official (receiver of the district) who, unless the owner appears within a year, sells them and gives the price to the treasury. Yet if they are not positively claimed, R. P. Slater, Manual of Moral Theology, I, 371, judges that one can stand by natural law.
But by natural law these things are to be treated as things recently lost.