Lost property

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.

Lost or misplaced things are things which someone has involuntarily lost or misplaced; unlike treasure, they are presumed to have an owner, though commonly an unknown one. They are distinguished from vacant things, which have been left by a deceased owner without an heir and without a testament; likewise from abandoned things, that is, from things whose ownership someone has voluntarily cast away.

Vacant things, considered according to natural law, belong to the first occupier; considered according to civil law, they commonly fall to the fisc. Abandoned things, as is clear, belong to the first occupier. But concerning lost things, receive these points:

I. The finder of a lost thing is bound from charity to apprehend it if there is hope of finding the owner, and that business of finding the owner can easily be undertaken.

II. The finder who has carried the thing away with him is bound to take care of the thing, and to apply diligence proportionate to the gravity of the thing so that the owner may be found. He is bound to these things from justice if otherwise the owner would be thrown into a worse condition because of the apprehension of the thing; if this does not occur, he is bound, according to some, from charity; according to others, from justice, either, as some say, by reason of the tacit contract which is called negotiorum gestio, or by reason of the possession itself, which belongs to the owner, and therefore seems to carry with it an obligation of justice at least to seek the owner, for this end, that he may be put into possession. Once the owner has been found, he is bound to restore the thing, insofar as it exists in itself or in its equivalent, after deducting, if he wishes, the expenses made for preserving the thing and finding the owner. Today due diligence for finding the owner is judged to have been applied if notice is made in public newspapers, and this the more frequently, the more serious the lost thing is. For the rest:

1. Considered according to natural law alone, these points hold:

a) If, after diligence has been applied, every hope of finding the owner has vanished, the finder can dispose of the thing at will. I said:

a) He can dispose of the thing; since the thing is destined for use, and therefore, if it is judged that it can no longer serve the owner, let it serve another.

b) He can dispose of the thing at will. There are some who judge that the thing must be expended for the poor or for a pious use, because the will of the owner is presumed to be that, if the thing can no longer profit the body, it should profit the soul (cf. St. Thomas, II-II, q. 62, a. 5, ad 3). But that is quite probably denied, both because in the posited hypothesis the thing at least probably becomes a thing belonging to no one, and therefore can be occupied by the finder; and if it has become a thing belonging to no one, there is no reason why the presumed will of the owner should be cared for; and because - even if the thing is not said to belong to no one - such a will of the owner is presumed without foundation. I said that in the posited hypothesis the thing probably becomes a thing belonging to no one; for since ownership is for the sake of use, it seems to cease if every hope has vanished that the owner will be able to use his thing (St. Alphonsus, III, 603).

What if the owner afterwards appears?

Response 1. If the thing now exists neither in itself nor in its equivalent, there is no obligation, because the damage was inflicted inculpably. The same must be said if the thing has been legitimately prescribed (St. Alphonsus, III, 590).

Response 2. If the thing exists in itself or in its equivalent, there seems to be an obligation of restitution, because in doubt the condition of him who certainly was owner seems to be the better.

2. Considered according to civil law - which in the case supplies the norm to be observed from justice - draw from the law what things have force.

Corollary. One who culpably neglected due inquiry, but now can no longer find the owner, has indeed sinned, but can rather probably retain the thing, because it is judged to belong to no one, or at least can be treated as a thing belonging to no one. If, however, the owner is afterwards found, he is bound to restore the thing insofar as it exists in itself or in its equivalent; furthermore he is bound to repair all damages following from his manner of acting and sufficiently foreseen, at least if the owner was thrown into a worse condition because of the apprehension of the thing.

225. Notion. Lost goods are called those which, while the owner is unwilling, have fallen out of his possession although they are not hidden. - They differ from treasure in that they are not hidden by design, and moreover it is often possible to find their owner.

226. (B) The finder is not bound from justice to take up a lost thing in order to guard it; but he is often bound to this from charity, namely when the thing otherwise is going to perish. - But if he has taken it up, he is bound from justice, according to the common opinion, (a) diligently to preserve the thing as a good father of a family; (b) more probably diligently to inquire about the owner, with diligence proportioned to the value of the thing found, not at his own expenses, but at the owner's. This twofold obligation arises from a quasi-contract by which, in apprehending the lost thing, he takes upon himself the obligation of caring for it as a good father of a family.

227. (C) If the owner appears before the time required for prescription, the thing must be returned to him, with the expenses however deducted which the finder underwent for the custody of the thing or the inquiry into the owner: for he made these as the owner's mandatory. - Nothing more is owed from justice to the finder, unless some reward has been promised.

228. (D) If, after diligence has been applied, the owner does not appear nor is there probable hope of finding him, the finder strictly speaking can retain the thing, because it can be held as a thing belonging to no one. But if he has disposed of it, and afterward the owner appears before the time of prescription has elapsed, the finder is bound to nothing except insofar as he has become richer from it, as will be said below concerning the possessor in good faith. But when the time necessary for prescription has elapsed, the thing becomes the finder's.

But if someone has culpably neglected to inquire about the owner, or all the more has hidden the thing lest perhaps the owner recover it, he is now a possessor in bad faith: concerning whom it will be said below.

229. Formerly theologians commonly held that a lost thing whose owner could not be found had to be spent on pious uses; for the owner of the lost thing has not lost his rights, and therefore it is not licit to use this except according to his presumed will; but the owner is presumed to wish that the thing be spent on pious uses, and so profit him spiritually.

But most modern theologians deny this; for (a) it is by no means established that dominion of the thing remains in the power of him who lost it without probable hope of recovering it, as was said above; (b) moreover it is not established that such is the presumed intention of the owner; this perhaps was the mind of the faithful in the time when faith and charity prevailed; but today there are few who care about this matter; they desire one thing, namely that the thing be faithfully preserved, so that it may be returned to the owner, if at some time at last he becomes known. - Hence in practice, distribution to pious uses is not to be imposed.

230. 2. Prescriptions of civil law. Where by civil law provision is made concerning lost things, its prescriptions must be observed. Now in France there are various laws not indeed concerning all but concerning certain lost things.¹ Besides, in many cities Municipalities have ordered that lost things be brought to a certain place: these statutes indeed are not determinative of property, and therefore do not oblige from justice; but it is equitable to obey them.

¹ Cf. Planiol, I, n. 1282-1286. - See Supplement, p. 50*-51*.

48. Preliminary Note. The finding of a lost thing, although it is not properly a species of occupation, nevertheless can be reduced to it. But a lost thing differs from treasure in two ways: a) because it has not been hidden; b) because it does not belong to no one, but still has an owner, although here and now unknown.

Concerning finding we shall treat 1. according to natural law, and 2. according to the statutes of certain civil laws.

1. From strict justice a private man is not held to carry away with him and preserve another's thing perhaps found; nevertheless ordinarily there is present an obligation of charity, at least light.

That an obligation of justice is not present is almost clear of itself; for a private man, apart from a special contract, is not held from justice to care for another's thing. But that an obligation of charity is present is also clear, because for the most part there exists some hope of restoring the lost thing to the legitimate owner and of forestalling his damage. But from charity we are obliged to ward off damage from our neighbor, if that can easily be done. This obligation indeed for the most part is only light, unless there is question of forestalling truly grave damage.

2. He who has taken up a found thing is held to guard it diligently and to inquire for the owner of the thing. This obligation arises from justice, so that the violation of it induces an obligation of restitution.

The reason is that such taking up is nothing other than management of affairs freely accepted, which carries with it the obligation of diligently guarding the thing taken up for the legitimate owner. Nevertheless both the guardianship of the thing and the inquiry for the legitimate owner are done at the expense of the owner and not of the finder, because the lost thing remains under the dominion of him who involuntarily lost it, so long as he has a reasonable hope of recovering it.

The finder is held to seek the unknown owner by suitable means; and if he does not do this, or, what is much worse, if he hides the found thing, he sins against justice and is held to restitution, because culpably he brings it about that the owner cannot recover his own thing. But by what modes in individual cases the inquiry for the owner must be made natural law does not determine, but it is customarily determined by civil law; nevertheless these determinations sometimes are directive rather than preceptive, and therefore they do not strictly oblige in conscience. Certainly he who uses the means prescribed by civil laws has sufficiently fulfilled this obligation of seeking the owner of the found thing.

If the owner of the thing has become known, the finder is held to restore it. Hence that saying of St. Augustine: "If you found something and did not return it, you stole it."³² But the finder can demand not only compensation of all expenses made in guardianship and investigation, but also a reward.³³ For the management of affairs done by the finder is not gratuitous, especially if this has also been established by civil law.

³² It is found in the Decree of Gratian, C. 14, q. 5, c. 6.

³³ Commonly Finderlohn, finder's reward.

49. 3. If, after diligent inquiry has been used, there is no longer a founded hope that the owner of the thing will be discovered, the finder can retain the thing for himself; nevertheless more laudably he distributes it to pious uses or to the poor.

Rightly and clearly Wigandt, O. Pr., writes:³⁴ "The most salutary counsel is this, namely, to expend those found goods for the poor or for public and pious uses, especially if the finder is not in need. But if he himself is in need, he can apply the whole or a part to himself for his necessity; but he will act best if for this he uses the counsel of a prelate or confessor." This same opinion is held by very many ancient and modern authors, while nevertheless very many others contradict it, for example Castropalao, Lessius, Cajetan, Billuart, etc., who wish found goods necessarily to be expended on pious causes or on the poor, if the owner cannot be found.

The first opinion is held by St. Thomas, who, distinguishing between treasure and other found things, says concerning these latter: "But certain found things were recently among someone's goods (i.e., a short time before they had a legitimate owner). And then if someone takes them not with the intention of retaining them, but with the intention of restoring them to the owner, who does not hold them as abandoned, he does not commit theft; and likewise, if they are held as abandoned, and the finder believes this, although he retains them for himself, he does not commit theft."³⁵ Therefore according to the Angelic Doctor the finder does not commit theft, nor consequently sin against justice, who retains found things which the owner holds as abandoned. Now, if after diligent inquiry has been made the owner cannot be found, then he is deservedly judged to hold his things as abandoned. St. Alphonsus teaches almost the same thing:³⁶ "When a thing, with the circumstances of length of time or distance of place considered, or because the thing can no longer be recognized by the owner as his own, as happens in ordinary coins, does not seem able to return to the owner; then it becomes a thing belonging to no one, and therefore is acquired by the first occupant, who is not held to give it according to the will of the prior owner, since through the impossibility of recovering it he has altogether lost dominion over it."

The second opinion can be proved neither by any text of law nor by any convincing reason.³⁷ For the principal reason brought forward does not prove the opinion of the adversaries. For they say that found goods must be expended according to the presumed will of the legitimate owner. But the presumed will of the owner regularly is that they be expended for uses useful to himself or to his own, or at least to the republic, and therefore for the relief of the poor, for Masses, or for other pious uses. I say: this reason does not prove the point, for it is by no means established that this will is regularly to be presumed; on the contrary, the will of the prior possessor is to be presumed that his goods remain in such a state in which he can recover them more easily. But the owner can recover them more easily if they remain with the finder, because thus they can be better recognized and preserved, than if they are consumed in pious causes or by the poor. Moreover, it does not seem that much care is to be given to the presumed will of the prior owner, because otherwise this will would also have to be attended to in the occupation of treasure; yet no one will say this. Some weight is brought to the stricter opinion by the surely very great authority of the Roman Catechism, which seems to favor it, saying:³⁸ "Therefore those also are thieves who buy things taken away by theft, or who in any way retain things found, occupied, or taken away; for St. Augustine says: 'If you found something and did not return it, you stole it.'³⁹ But if the owner of the things can in no way be found, those goods must be conferred for the uses of the poor." But it seems not so clear whether the final phrase is to be referred to things taken away by theft only, or to all things, whether taken away by theft, found, occupied, or taken away. This latter does not seem likely, for at least things legitimately occupied no one is held to confer upon the poor. Therefore the authority of the Roman Catechism either proves too much or proves nothing for the opinion of the adversaries. Consequently in practice the opinion permitting the finder to retain found goods for himself is safe, provided that he has used sufficient diligence in finding the legitimate owner. Civil codes do not speak of an obligation of expending found things for the uses of the poor, but otherwise dispose of them. Therefore even from civil codes an argument cannot be found for the stricter opinion.

4. Although the finder can retain the found thing for himself after prudent hope of finding the true owner has ceased, nevertheless finding alone does not seem to be a sufficient title of property, but it is necessary that the title of prescription be added according to the laws of each region.⁴⁰

There are several authors, for example Noldin⁴¹ and Lehmkuhl,⁴² who teach that the finder acquires dominion of the found thing by occupation and not by prescription. But in practice this doctrine can suffer difficulties. Let there be an example: Peter found a purse in a public street, in which there is the sum of 100 francs; he seeks the proprietor in the best way he can, but in vain. Then he consumes the 100 francs on a pleasure trip. After three months the true owner of the lost purse unexpectedly appears, and Peter is compelled by the judge to return the purse with 100 francs. If Peter acquired the purse and the 100 francs by true occupation as soon as every prudent hope of finding the owner ceased, he is not held to return the found thing, and if nevertheless he is compelled by the judge to return it, he can secretly compensate himself; which, however, hardly anyone would say in the present case. Therefore finding itself does not seem to be a sufficient title of dominion, but it is necessary that the title of legal prescription be added, concerning which below, n. 57 sqq.

³⁴ Tribunal confessar. tr. 8, exam. 3.

³⁵ S. theol. 2, 2, q. 66, a. 5 ad 2.

³⁶ Theol. mor. l. 3, n. 603.

³⁷ Forcefully and at the same time most truly Dom. Soto says (De iure et iust. l. 5, q. 3, a. 3): "By the law of nature and of nations those things belong to the finder, and there is no evangelical or ecclesiastical law which attributes them either to the poor or to anyone else. Therefore the finder can take them for himself."

³⁸ P. 3, c. 8, q. 7.

³⁹ Sermon 178, c. 8 (Migne, Patr. lat. 38, 965). This saying of St. Augustine has become almost an adage in Germany: "If you make a find and do not make it known - you are a robber that very hour" (Tust du einen Fund und machest ihn nicht kund - ein Räuber bist du zur Stund).

⁴⁰ Cf. Cod. civ. Germ. § 973; Helv. art. 722; Austr. § 392; Hisp. art. 615.

⁴¹ De praeceptis n. 393.

⁴² Theol. mor. I, n. 1090.

In general it is to be noted that the statutes of civil laws must be observed in conscience, unless the principles of natural law manifestly determine otherwise. But certain statutes seem to be directive norms rather than preceptive ones.

50. I. German Law.

1. He who finds and takes up a lost thing is held to return it to the legitimate owner; or if the owner is unknown and the thing exceeds the value of three marks (of the former currency), he must announce the finding to the public police.⁴³

2. The finder is held faithfully to guard the thing, or if this guardianship is impossible or joined with great expenses (for example if someone finds a cow), he must sell it at auction, with the police nevertheless having been forewarned, and preserve the price of the sold thing or hand it over to the police.⁴⁴

3. The finder can demand from the owner not only compensation of all expenses, but also the legitimate reward of finding, namely 5% up to the value of 300 marks; but concerning a found thing which exceeds this value, beyond 15 marks, still 1%. Therefore if someone, for example, finds 500 marks, he can demand 17 marks as the reward of finding. The reward of finding is only 1% if there is question of found animals.⁴⁵ If the owner refuses compensation and the legitimate reward of finding, the finder can retain the thing.⁴⁶

4. If the owner of the thing has not appeared and claimed the thing within a year (to be computed from the day of denunciation in the public police), the found thing pertains to the finder.⁴⁷

5. If the finder omits the obligation of announcing or conceals the finding, he loses the right to the reward of finding or to the dominion of the thing.⁴⁸

6. If someone finds a thing in the business premises (Geschäftsräumen) or in the vehicles of some public office or business, for example on the railway, in a tramway, in theaters, in inns and hotels, etc., he is held to hand over the thing to the officials or to the head of that public office. If within three years the owner of the thing has not appeared, the thing falls either to the treasury or to the public office itself. But the finder receives nothing.⁴⁹ This statute is indeed very useful for finding the legitimate owner, but in some way hard for the finder himself. Whether it obliges in conscience is not so clear. If the handing over of the thing is morally necessary so that the legitimate owner can be found, for example if someone finds a garment or a book on the railway, then this statute seems to oblige in conscience, because otherwise the finder does not use sufficient diligence for finding the legitimate owner of the thing. But if such handing over is not necessary, because from the beginning it is morally established that the legitimate owner cannot be found, then this statute does not seem to oblige in conscience. For example, if someone finds a coin of money on the railway, he can ordinarily retain it for himself, because it is almost impossible that the legitimate proprietor can prove that this coin is his own.⁵⁰

⁴³ Cod. civ. Germ. § 965.

⁴⁴ §§ 966 and 967.

⁴⁵ §§ 971 and 972.

⁴⁶ § 974.

⁴⁷ § 973.

⁴⁸ § 971.

⁴⁹ §§ 978-983.

⁵⁰ Thus also Lehmkuhl, Bürg. Gesetzbuch § 978.

51. II. French Law.

1. French law distinguishes between "maritime wrecks" (épaves maritimes), "river wrecks" (épaves fluviales), and "land wrecks" (épaves terrestres). But under the name "wrecks" (épaves) is understood every movable good lost by its proprietor. Goods abandoned from shipwreck can be claimed by the proprietor within the space of 3 or 12 months. If the claim has not been made within this time, those goods pertain totally to the finder if he drew them up from the bottom of the sea; but a third part of them, if on the surface of the sea; and nothing, if they were found on the shore. These latter determinations do not seem to induce a grave obligation in conscience.

2. Found things must be handed over to the public authority.⁵¹ But if the owner has not claimed them within 3 years, they are returned to the finder, who then becomes proprietor. This ordinance is indeed very good, but it does not seem to have a grave obligation either in the civil forum or in the forum of conscience. Therefore it suffices if the finder in another way diligently inquires concerning the proprietor of the lost thing. If he has not appeared within three years, the thing pertains to the finder by title of prescription by force of the adage: "In the matter of movables, possession is equivalent to title" (En fait de meubles, la possession vaut titre).⁵²

3. Things left behind through forgetfulness in public inns and hotels (chez les hôteliers) do not pertain to the owner of the inn or hotel, but must be sold by public authority.⁵³ But the price obtained, after the expenses of the innkeepers have been deducted, is deposited "at the Deposits and Consignments Fund" (à la Caisse des dépôts et consignations) for the benefit of the proprietor. This statute also, as not so consonant with the law of nature, does not seem to oblige in conscience.

⁵¹ "Au greffe du tribunal" according to the circular of 5 August 1825.

⁵² Cod. civ. Gall. a. 2279.

⁵³ Law of 31 March 1896.

52. III. Swiss Law.

1. If someone finds a thing, he must either himself diligently inquire concerning the legitimate owner or report the found thing to the public police. But he is held to report a found thing to the public police if it exceeds the value of 10 francs. But if he finds a thing in an inhabited house or in some public transport establishment (Verkehrsanstalt), for example in an inn, in a theater, on the railway, etc., he is held to hand over the thing to the owner (lessor) of the house or to the head of the public transport establishment,⁵⁴ who then, by a fiction of law, is judged to be the finder, but they cannot demand the reward of finding.⁵⁵

2. The found thing must be faithfully guarded; but, public authority having been obtained beforehand, it can be sold at auction if it cannot be preserved, or if guardianship causes excessive expenses. Then, however, the price of the found thing must be preserved.⁵⁶

3. The finder who has fulfilled the precepts established by these laws acquires the found thing if for 5 years the legitimate owner has not appeared; but if he has returned the thing to the legitimate owner, he has a right to a suitable reward of finding.⁵⁷

⁵⁴ Cod. civ. Helv. a. 720.

⁵⁵ Art. 722; cf. what was said above n. 50 (6) concerning a similar statute of German law.

⁵⁶ Art. 721.

⁵⁷ Art. 722.

53. IV. Austrian Law.

1. The finder is held to make the found thing known in the accustomed manner if the value of the thing exceeds one florin (of the former currency); but if the value exceeds 12 florins, he must report the thing to the local superior.⁵⁸ But if the finder has neglected these statutes, he loses the right to the reward and besides must be gravely punished.⁵⁹

2. The finder has the right to the reward of finding, and indeed 10%. But if the reward thus to be paid reaches the sum of 1000 florins, afterward only 5% is granted.⁶⁰ This reward of finding seems to be excessive. Nevertheless it must be paid at least after the sentence of the judge.

3. If within a year the owner of the thing has not appeared, the finder becomes its usufructuary, and after three years, proprietor by force of legitimate prescription.⁶¹

⁵⁸ Cod. civ. Austr. § 389.

⁵⁹ § 393.

⁶⁰ § 391.

⁶¹ § 392 and 1466.

54. V. English And American Law.

Those things which the civil law of England prescribes concerning found treasures, goods lost by shipwreck, and vacant goods do not oblige in conscience before the sentence of the judge.⁶² Concerning lost things there do not seem to exist special civil laws obliging in conscience. Hence in England (and North America) the confessor must attend only to the principles of natural law. Someone could nevertheless doubt whether a law obliges in conscience which establishes that the finder, after diligence for finding the owner has been applied in vain, indeed acquires dominion of the found thing, but with the obligation that, if the owner appears after any length of time, restitution be made to him. Therefore the law of England does not admit prescription against the owner of the lost thing.

⁶² Thus Slater, Princ. Theol. mor., de Iust. c. 4, a. 1.

55. VI. Italian And Spanish Law.

1. The civil codes of Italy and Spain establish almost the same things concerning the finding of a lost thing.

2. If someone finds a thing whose owner he does not know, he must hand it over to the syndic (sindaco, alcalde) of the place where it was found. He will publish notice of the found thing on the two immediately following Sundays.

3. After two years have elapsed after these publications, the found thing (or its price) is handed over to the finder, unless the proprietor has appeared.

4. The reward of finding is 1/40 (and if the value of the thing exceeds the sum of 2000 francs, it is 1/20) of the value of the thing.⁶³

⁶³ For Italian law see Cod. civ. a. 715-718; cf. Piscetta, Theol. mor. III, n. 124. But for Spanish law see Cod. civ. a. 615 sq.; cf. Larraga-Saralegui n. 708.

Goods that can be found are reckoned of a fourfold kind, namely treasures, abandoned goods, vacant goods, and things recently lost.

882. Notions. Treasure, in the new Codes, is generally called: any thing whatever estimable by price, hidden or buried for a long time, which is found by chance and which no one can prove to be his own.⁰⁴

If therefore the owner of a hidden or buried thing could be found, the thing would not have to be held as a treasure, but as a lost thing. - Similarly, if it could be proved that the thing had been put away there by the actual or prior possessor. Cf. the case apud Ami du Cl., 1910, p. 203. Metallic or coal veins are not equated with treasures.

Abandoned goods are things that the owner has rejected, with the intention of renouncing ownership of them. Of this kind are grapes, chestnuts, ears of grain, etc., which remain after the fruits have already been gathered.

Vacant goods are called those that are left by one intestate, to whom no heir according to law succeeds, or wishes to succeed.

Lost things are those that the owner has lost involuntarily, and that for this reason are judged still to have an owner.

883. Principles. I. Treasure, from natural law, becomes the property of the first occupant. For it is judged to be a thing belonging to no one.

From positive law: Treasure found by the owner of the land himself belongs wholly to him. But found by chance on another's land, it is to be divided equally between the owner of the land and the finder; found in a public place, it is to be divided between the finder and the fisc, if namely the place was profane; but if it was sacred, between the finder and the fabric or prelate; and authors commonly teach that such division obliges in conscience. If the finding was made deceitfully, not only must half the treasure be restored to the owner of the land, but the whole treasure, as penalty for the delict of the finder, must be restored; nevertheless not before the sentence of a judge. Thus French, Italian, Austrian, Spanish, German Law, etc. (cf. St. Alphonsus, III, 602; Code, l.c.). - English Law adjudicates all treasures to the king or state. But, Crolly testifying (I, n. 642), that law does not oblige before the sentence of a judge, for it is merely penal.

It must be observed: 1. He is the finder of a treasure who uncovers it and renders it visible, or even who sees and apprehends it, but not he who only sees it after it has been uncovered by another. Wherefore if some servant, in the presence of his master, labors and renders the treasure visible and apprehends it, the master would retain such a treasure unjustly, because he is not the finder.⁰⁵ - 2. If some owner, suspecting a treasure, hires a wage-earner to seek it, not the wage-earner, but the owner is judged to have found it. - 3. He who buys a field at the common price, drawn by suspicion that a treasure lies hidden in it, commits no injury. But otherwise, if after he has by chance found a treasure on another's land, he covers everything again and buys the land, lest he be compelled to divide. Thus theologians most commonly, although others think otherwise. - 4. According to the more recent Codes, it matters little whether the treasure was found in a movable or immovable thing, for example in a garment or in the corner of a house, provided it is certain that it is truly treasure, i.e. a thing not pertaining to such a person or to such a family (Gury, n. 577, q. 2).

884. II. Abandoned and vacant goods belong to the first occupant. Thus from natural law, because they belong to no one.

From positive law, these goods can pertain to the state. And in fact, in several kingdoms, the goods of him who died intestate, and to whom neither wife nor other blood relatives up to the tenth degree are surviving, devolve to the fisc.⁰⁶ Likewise, from positive law part of a gold, coal, etc., vein is ascribed to the state.

Of themselves, things cast away, or left in danger, are not to be reckoned among abandoned things: for no one is presumed to renounce ownership of his own things as long as there remains hope of recovering them. - Yet he who has rescued things from danger retains the right to the price of his industry.

Hence: 1. Goods found on the shore after shipwreck cannot be held as abandoned; things saved from a fire (even with some danger or labor); wood that in a flood is carried from one place to another; another's sheep snatched by your dog from the jaws of a wolf, etc.

2. But a thing can be held as abandoned if it is prudently judged: a) that the owner is no longer solicitous concerning it, for example because he is too far distant, or because the thing is of small moment (as nuts, grapes, remaining after the fruits have already been gathered [cf. n. 910, 5]); - or b) that he has lost every reasonable hope of recovering the thing

whether by himself, or through another: hence little stones, gems, coins, which are found at the bottom of a river, belong to the first occupant (cf. Lugo, l.c., n. 99; Ami du Cl., 1907, p. 183, 844; 1910, p. 349; Lehmkuhl, Cas. consc., I, n. 601 seq.).

885. III. Lost things, if they are found, must be restored to their owner. The reason is that the thing cries out for its owner, nor does the adverse fortune of him who lost it effect that it cease to cry out. Hence St. Augustine: "What you found and did not return, you have seized."

A manifold obligation can arise from the finding of a thing.

1. He who finds it is held from charity (unless grave inconvenience excuses) to take care of it upon himself, if otherwise it would perish for the owner.

2. He who has apprehended a lost thing is held, from justice: a) to take care of it, and to guard it from the quasi-contract that is called management of another's affairs; - b) not to conceal it, but to employ suitable and proportionate means (or those determined by civil law), so that knowledge of the thing existing with him can come to the owner. If he has deliberately neglected these, he is certainly held to restitution.

3. The owner of the lost thing is held, from justice: a) to reimburse to the finder or holder all those expenses that were made both that the thing might be preserved and that the owner himself might be found; - b) to give that remuneration which either he himself freely promised, or civil law established.

Note. Civil law, for only things of greater moment exceeding 4 francs, indicates the means to be employed so that the owner can thus be found. - Of themselves, no obligation in conscience urges to employ these. - Yet if the finder has neglected them, the owner of the lost thing is not held to give the remuneration indicated by law, although the finder of the thing claims it.⁰¹

886. It is asked: What if, diligence having been made, the owner of the thing is not found?

Resp. Dist. 1. If no hope of finding the owner remains (which must be judged either from the determination of civil law, if it is present, or from circumstances of time, distance of place, or impossibility of recognizing the thing, as happens in ordinary coins), the finder can retain the thing for himself, even if the owner appears afterward, because then it is held as abandoned; and it is only counseled that he give it to the poor.

Note. If, however, law attributes to an appearing owner the right of reclaiming the thing after some time, and the finder has omitted the legal modes of detecting the owner, restitution must be made to the owner, even if on the part of the finder moral diligence for seeking the owner was present (see Code, l.c.).

2. If some hope remains, the thing must be preserved for a suitable time; or if it cannot be preserved, its price must be preserved. But if neither can be preserved, or the thing cannot certainly be transmitted to the owner, it must be expended for pious causes.⁰² The reason is that, while such hope lasts, the owner preserves ownership of the thing, and therefore that thing is to be expended according to his presumed will. Cf. also those things that will be said in n. 999.

But to the owner appearing after the thing has been handed over for pious causes, if it exists in equivalent and has not been prescribed, it must be restored by the poor person or by the one having it; for such handing over seems to include this condition: unless the owner becomes known. Thus St. Alphonsus with St. Thomas, Lugo, etc., against others thinking otherwise (III, 589 seq.; H. Ap., X, 69).

From these things you will resolve: a) A maidservant of an inn who, while sweeping the tavern, finds some coins, when there is no hope, namely on account of the great crowd, that the owner will be found, can retain them for herself. - b) He who retains animals wandering from their owner, diligence for finding the owner having been omitted, is guilty of injustice; and thereafter, if the owner cannot be found, or he himself cannot reveal the thing without infamy, because of omitted diligence he must expend the price for pious causes (Konings, n. 656).

Note. Whether and how the goods of absent persons can be occupied, see in the Codes themselves.⁰³

655. III. - Things recently lost must be restored to the owner if he is found, because the fact of losing is not a title for despoiling an owner of his thing; therefore, since things recently lost still have an owner, they must be restored to him if he is discovered.

656. • You will resolve. 1° Therefore concerning a thing lost by someone, whether known or unknown, which perhaps you find, a multiple obligation can be present. For:

a) Charity can obligate you to undertake care of the thing if you foresee that otherwise the thing will in some way perish for the owner.

b) Likewise charity will require that if at some time it is certain to you concerning a thing lost or found by another, you reveal this to others when you prudently judge that this will be profitable so that the thing may return into the hands of the owner.

c) If you yourself take a thing perhaps found, by force of the contract which is called management of affairs (n. 927), or at least from charity, you are especially bound to conduct diligent care of the thing and guard it, unless by doing this you are going to suffer damage; in which case you will be able to put it back in the place where you found it.²

d) Likewise, if the owner of the thing is unknown to you, you are bound from justice not to hide the thing. You will violate this obligation not only if you carefully hide the thing in such a way that the owner cannot find out that the thing lies with you, but also if you do not use means suitable and proportionate to the value of the thing, so that knowledge of the thing existing with you may come to the owner.

2° Once diligence has been used which corresponds to the value of the thing found, either some hope of finding the owner appears, or not. If the former, the thing is to be preserved, or, if it cannot be preserved, its price; but if neither can be preserved, it must be spent on pious causes. For, while such hope lasts, the owner has dominion of the thing; therefore it is to be spent according to his presumed will. But if the owner appears after it has been handed over to pious causes, it is to be restored by the poor person or the one having it, if it exists in an equivalent and has not prescribed; for such a handing over seems to include this condition: unless the owner becomes known. - If the latter, which is to be judged from circumstances of time, distance, place, or impossibility of recognizing the thing, as happens in ordinary coins, the finder can now retain it for himself, since it belongs to no one. But if by chance the owner afterwards appears, nothing is owed to him, since he has lost every right. So St. Alphonsus,¹ others thinking otherwise. Hence a maidservant of an inn, who in sweeping the tavern finds some coins, while there is no hope, namely on account of the great crowd, that the owner will be found, can retain them for herself. Hence also he who retains animals which have wandered away from their owners, with diligence for finding the owners omitted, is guilty of injustice; and afterwards, if the owner cannot be found, or he himself cannot disclose the thing because of omitted diligence, he must spend the price on pious causes.²

3° An owner appearing is bound to reimburse to the finder or holder of the thing the expenses made so that the thing be preserved, or its owner be found.

213. Invention differs from occupation strictly so called: 1) for occupation supposes and includes the intention of acquiring for oneself the thing occupied, but invention denotes only the discovery of a thing, or at most its apprehension; 2) occupation is also and chiefly concerning things which have never belonged to anyone, but invention only concerning those which have had an owner but have ceased to be in his detention.

Therefore it is badly defined by some as a certain occupation of some thing separated in fact from its owner; but it must be defined as the discovery or bringing to light of some thing separated in fact from its owner. It is said:

1. discovery, and not real apprehension and occupation, because it can happen through merely intentional apprehension by sight alone, that is, by seeing the thing; indeed through the mere manifestation and bringing to light of the thing, that is, by rendering it visible (by oneself or by others hired for this);

2. of a thing separated in fact from its owner, either so that he retains dominion over it (a lost thing), or so that he is no longer owner (an abandoned thing), whether because the owner has died without an heir, or because he has renounced his dominion, or because he can no longer prove his dominion, and then the thing is called a treasure.

214. I. Concerning the finding of treasure. - Treasure among abandoned goods deserves special mention; it is defined as: any hidden or buried thing which no one can prove to be his and which is found by fortuitous chance¹ (C.C., a. 716). It is said:

¹ Concerning treasure, the Italian code, a. 714; the Spanish, a. 352 and 514; the Austrian, a. 392; the German, a. 984.

1. any thing, whether it was hidden long ago or recently, whether it is money, or any other movable thing whatever, whether precious or cheap, provided it is estimable by price, for example, the jewel of a ring, documents, precious vessels,² etc.

² By Austrian law, only money, jewels, and a precious thing are held as treasure; by English and American law, only coin, or also a golden or silver thing.

2. hidden or buried: for if it is in the open, it is not a treasure but a lost thing or simply an abandoned thing. Furthermore it is required that it have been hidden by the hand of man; or, if by a fortuitous natural event, for example, an earthquake or volcanic eruption, it was covered over, that at least by an act of man it had been deposited there, whether in an immovable thing, as in a field, or in a movable thing, as in a cupboard, an old garment, an ancient chest;³ hence treasures are not riches which by nature itself lie in some estate, as metallic or coal veins or precious stones, nor are tombs or sculptured stones buried in the earth treasures in the proper sense;

³ In the Netherlands they dispute whether a thing hidden in a movable thing is treasure; which seems strange, since the Dutch code (a. 642) borrowed the definition of treasure from the French code.

3. which no one can prove to be his, for otherwise it would have to be restored to the owner;

4. there is added: which is found by chance. It is disputed among interpreters of civil law whether this element pertains to the essence of the definition; but it seems rather not to pertain, and only to indicate the ordinary mode by which treasure is found.

Now concerning the finding of treasure these principles are valid:

1. Treasure is a thing of no one: for it is not the thing of him who is the owner of the land, since it is not certain that it was hidden there by his ancestors; nor is it any longer the thing of him who hid the treasure, since by hypothesis he cannot be found.

2. Therefore treasure, if natural law alone is considered, belongs wholly to the finder; but the finder is deservedly judged to be he who, whether by himself or by another hired for this end, first discovers it or renders it visible, although he has not yet apprehended it by hand.⁴

⁴ German law, however, requires both, for it says: "which is discovered and, when discovered, is occupied" (a. 984); likewise by Spanish law, he is held to be the finder who apprehends, not he who sees (a. 351, 610, and 614).

3. From present-day civil law, treasure found in another's land is generally to be divided equally between the finder and the owner⁵ (not the usufructuary⁶) of the land, because the law presumes that the treasure has a certain special connection with the land, or even was hidden by the ancestors of the owner, which in the more frequent case, in which possession of the land has remained in the same family for a sufficiently long time, is probable. This law is equitable and therefore obliges in conscience.

⁵ C.C., a. 716. The owner of the land is understood whether a private person, or the public treasury (the fisc), or a civil or ecclesiastical society. This last, however, is called into doubt by some, because it is not certain whether civil law is applicable in the case; on the contrary Vermeersch, applying can. 1529, with can. 20 considered. - Swiss law makes an exception, establishing that treasure belongs wholly to the owner of the land (a. 723); likewise English law, which attributes it to the public treasury (the fisc) if it claims it; otherwise it belongs to the first occupier.

⁶ C.C., a. 598. - In an emphyteutic good, by Italian law (a. 1361) and Spanish law (a. 1632), it cedes to the useful owner; by Austrian law, to each owner (a. 399).

4. Civil laws often prohibit another's land from being dug up, without the owner's knowledge, in order to seek treasures, so that he who by design and without the consent of the owner has sought and found treasure in another's land is deprived of his part and is held to cede the whole to the owner.⁷ Yet this disposition is a penalty inflicted for a delict, and therefore it does not oblige in conscience except after the sentence of a judge. But if the owner has been warned and has consented, the contract entered into with him must be observed.

⁷ Thus French and Belgian, Italian, Spanish, and Dutch law.

215. Corollaries. - 1. He who buys a field at the current price, in which he suspects a treasure lies hidden, uses his right, and is not held to divide the found treasure with the former owner. For treasure is not a part or fruit of the land, nor is it occupied together with the field, and therefore it was not the owner's thing, but before invention was a thing of no one, which has an owner by invention alone.

2. On the contrary, he who hides a treasure already found, and after buying the field retains the whole for himself: by the very fact that he had found it, he is already held to hand over half the part to the owner.

3. If a precious thing has been made visible by a tempest, it already loses the character of treasure and will belong to the first occupier.

216. II. Concerning lost things. - A lost thing is called that which, against the will of the owner, has fallen out of his possession, although it is not hidden. Therefore it differs from treasure both because it is not hidden, and because it is not a thing of no one, but is presumed to have an owner. Hence:

1. A lost thing remains under the dominion of him who involuntarily lost it, as long as there is for him the possibility of recovering it.

2. If, all things considered, there is lacking the possibility of finding the owner, a lost thing probably becomes a thing of no one, and therefore can legitimately be retained by the finder, whatever many of the old authors may have said; because now it is impossible for the owner to exercise his dominion over the lost thing. For dominion of a thing is attributed insofar as utility can be perceived from the use of the thing; and this is impossible for one definitively losing it. Hence, the reason of dominion failing in him, his dominion ceases.

3. The finder is not held to pick up a lost thing, unless sometimes from charity, if it is notable and otherwise about to perish. But one taking the thing is now obliged from justice and quasi-contract: a) to guard the thing diligently, as a good father of a family, lest it perish for the owner, and if it cannot be preserved, to sell it and preserve the price; b) to inquire about the owner with moral diligence by apt means proportioned to the value of the thing found, not at his own expenses, however, but at the owner's; c) when the owner is known, to restore it to him, after deducting the expenses made in guarding and investigation, without being able strictly to demand a reward, unless the owner has promised it or civil law so establishes.⁸

⁸ Civil law establishes this, for example, in Germany, Austria, Switzerland, Italy, and Spain. Remuneration is not owed if the finder neglected to inquire; Austrian Code a. 389; Spanish 615-617; German a. 965-968.

4. The finder who culpably is the cause that the owner cannot be found, because he neglected to inquire or sufficiently to inquire about the owner, or hid the thing so that the owner cannot recover it, is a possessor in bad faith, and therefore can have nothing of the thing for himself, as will be said later, n. 303. Hence he is held to restore the whole either to the probable owner, if there is one, or to pious works, even if he has consumed the thing.

5. A finder for whom, after sufficient diligence has been employed, the owner remains doubtful and uncertain, must divide the thing among a few uncertain owners according to the proportion of doubt or probability.

6. A finder for whom, after sufficient diligence has been employed, the owner remains wholly unknown, with no hope of discovering him, probably can make the thing his own, as a thing of no one, and indeed at once (unless civil law establishes otherwise⁹), nor is he held to expend it on pious uses, although it is more praiseworthy that this be done.

⁹ Thus, for example, in Switzerland and Austria.

7. If, before the time for prescription established by law has elapsed, the owner appears, the finder who after an altogether diligent inquiry appropriated the thing to himself in good faith is held to restore it and its fruits, insofar as he still possesses them or has become richer from them; but if he has consumed it, or has completed the time required for prescription, he is held to restore nothing, as a possessor in good faith.

But the time established for prescription is various. By French and Belgian law (C.C., a. 2279), likewise Dutch (a. 2014) and Austrian law, it is 3 years, unless there are special dispositions for a particular case, for example, for things deposited in the montes pietatis, or transported or abandoned in public offices; by Italian law (a. 715-718) and Spanish law (a. 615 and 616), 2 years after publication; by Swiss law, 5 years; by German law, 1 year after denunciation. By English law prescription is not admitted in this case.

217. Observation. - It suffices to apply the general prescriptions of civil law as to a certain deposit of lost things or the mode of seeking the owner; nevertheless this does not seem obligatory, unless they regard special things or cases. In Belgium, for the rest, prescriptions do not exist except for things which are transported by public services (for example, by railroad or postal service), and are abandoned there or in tribunals.

218. III. Concerning abandoned things. - That thing is called abandoned which the owner has voluntarily abdicated without transferring it into the dominion of another. Such are fruits which are left after the harvest has been completed, dry wood which lies on the ground and is not collected, old rags which are thrown away; and also goods which, when the owner is dead, become no one's, either because the deceased neither has nor constituted heirs, or because they renounce the succession (vacant inheritances). Therefore these goods now are no one's. Now:

1. By natural law, abandoned goods, as things of no one, can legitimately be occupied.

2. By civil law it is sometimes established that goods which lack an owner or abandoned inheritances devolve to the State; which law obliges even in conscience, at least after the intervention of authority claiming the rights of the State or the sentence of a judge.

Thus by French and Belgian law (C.C., a. 539, 713, 768¹⁰). But these words regard only immovable goods and inheritances (as is supposed, a. 564, 715, 716, 717). Hence for the remaining movable goods the right of the first occupier remains.

¹⁰ Likewise Dutch code, a. 576; Italian, a. 742 and 758; Spanish, a. 913, 914, 956, 958.

219. Observation. - Things lost by shipwreck are not abandoned, nor things thrown into the sea to save a ship, or carried off by inundation (epaves; strandgoed): for owners did not freely and spontaneously cast these away, but intend to retain dominion over them as far as they can. Hence concerning these things the statements about lost things are valid; and therefore sometimes special civil laws are issued concerning these things,¹¹ or they even punish those who steal such goods.

¹¹ C.C., a. 717, and ordinance of the year 1681 concerning maritime things with decrees of 27 Thermidor, year VII, and 17 Floreal, year XX.

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.

§ IV. — On things derelict, lost, and vacant.

I say 1° : By Roman law, « if anyone takes possession of a thing regarded as derelict, he at once becomes its owner. » Instit. book II, § last ; because, as I have now often said, things that belong to no one become the first occupant's²⁷⁵. By French law, goods derelict pertain to the magistrate of the place. So Tournely after Ferrier. ²⁷⁵ S. Thom., 2ae 2ae, q. 66, a. 5, ad 2.

[The new French law accords with the old. From Cod. civ., art. 539, goods derelict are included under the name of vacant goods and attributed to the republic. This, however, is restricted by custom to immovables alone, and it is admitted that movable things derelict pertain to the first occupant, at least before the judge's sentence²⁷⁶.] ²⁷⁶ Carrière, de Iure et Iust., n. 285 and 343, after several jurists.

« But that is regarded as derelict which the owner has cast away with the mind that he does not wish it to be among the number of his things, and therefore he at once ceases to be its owner. » Instit. cited. When indeed such is the mind of the owner must be hunted out from the circumstances of things and times.

Hence you will infer that the goods of the shipwrecked, whether projected into the sea by the violence of a tempest causing shipwreck, or cast out for lightening the ship, likewise those carried off by flood, are not goods derelict, because regularly owners do not regard them as derelict, but rather would most gladly recover them ; and therefore they are a case of theft in those who steal them away for themselves, and if they are the goods of shipwrecked Christians, they incur the excommunication of the Bull of the Coena. If, however, the owner, knowing where and how he could recover them, did not care, because he either made little of them, or there were expenses to be incurred which would equal the value of the thing to be recovered, then it would be presumed that he regarded them as derelict.

Of this kind, I think, in these parts are the small pieces of wood which are swept off as the waves of the Meuse swell, and which the inhabitants of the banks fish out.

I say 2° : Vacant goods are those which someone leaves behind dying ab intestato, having no heirs who succeed him according to law ab intestato. These are assigned to the royal fisc. L. Vacantia, C. de bonis vacantibus.

Except the movable goods of foreigners, which, if they die ab intestato without heirs, ought to be expended through the hands of the bishop of the place for pious causes. Authent. Omnes peregrini, C. Communia, de Success.

In Gaul, the goods of foreigners dying there, who are called aubains, as it were born elsewhere, pertain to the king, excepting the goods of legates, merchants, and natives.

[Vacant goods are reckoned whatever one leaves behind dying intestate, whether movables or immovables. New laws sanctioned the attribution of these goods made by Roman law. Hence the goods of one who has died intestate and left no blood relatives up to the tenth degree devolve upon the fisc²⁷⁷. No place is given to occupation, because the dominion of these goods was not really relinquished or cast away, and the public authority, by force of its higher dominion, decreed that they would accrue to the community, for public utility. It can be said besides that, since the owner, bereft of his natural family, did not dispose of them by an act of last will, he is held to have willed them to accrue to his civil family, that is, the republic.] ²⁷⁷ Cod. Gall., art. 539 and 713 ; Ital., art. 742 and 758.

I say 3° : Goods recently lost are not the finder's, but remain his who lost them, who therefore must necessarily have them restored, if it can be done ; because he who lost them is not despoiled of the dominion of these goods, nor does he who finds acquire it²⁷⁸. By what right? Not by authority of the law, for there is none that can be assigned ; not by the will of the owner, who rather wills on the contrary that they be rendered back to him, and therefore he inquires diligently, gives thanks for those restored, even when he has ceased to inquire. ²⁷⁸ S. Thom., 2ae 2ae, q. 66, a. 5, ad 2.

I say 4° : If, after diligent inquiry — which ought to be greater or lesser according to the condition of the thing — the owner cannot be known, the goods found ought to be expended according to his presumed will : this the natural law indicates. His presumed will, moreover, is regularly held to be that they be expended for uses useful to himself, or to his own, or at least to the republic, and consequently for the relief of the poor, for Masses or other pious uses. And that it is so, I appeal to his conscience as witness : would he not wish his lost goods so expended ?

This common opinion is expressly handed down by the Council of Milan under Saint Charles, the Roman Catechism, part III, c. VIII, n. 17, and Saint Thomas here q. 62, a. 5, ad 3.

[In the Roman Catechism we read there : « There are thieves, who buy things taken away by theft, or retain in some way things found, occupied, and carried off. For Saint Augustine says : « If you have found and not returned, you have stolen^{279 279} Serm. 178, once 19, c. 8, n. 9.

» Note that if the owner of the things can by no means be found, they are goods to be conferred upon the uses of the poor. »]

The text of Saint Augustine cited here, and the text of the Angelic Doctor referred to, will be weighed below.

The other opinion affirms that the finder, in the case proposed, namely with every diligence employed, can hold the thing as his own. S. Ligorius²⁸⁰ cites several authors of good note, among whom the Salmanticenses, to whom it seems probable and highly probable, and Gury holds it as the more probable. ²⁸⁰ Lib. IV, n. 603.

A third opinion, says S. Ligorius²⁸¹, truer and to be followed, distinguishes and says : « When, after diligence, it is still possible to find the owner, then the thing or the price ought to be kept. But if neither can be kept, the thing or the price must altogether be expended on pious uses, according to the presumed will of the owner, who still always retains the dominion of that thing, and the thing can return into his hands. Conversely, when the thing, considering the circumstances of the length of time or the distance of place, or from the fact that the thing cannot any longer be recognized as his by the owner, as happens with ordinary coins, does not seem able to return to the owner, then it becomes nullius, and therefore is acquired by the first occupant, who is not bound to give it according to the will of the former owner, since he has utterly lost the right of dominion through the impossibility of recovering it³. And this opinion Saint Thomas expressly holds, 2a 2ae, q. 66, art. 5, ad 2, where he says : « And likewise, if [things] are regarded as derelict, and the finder believes this, he may retain them without committing theft. » The reason a priori is, because the law of nations grants to private persons dominion over things for no other end than that they use them. Hence, when it is impossible for the thing to come to their use, it, as derelict, becomes nullius and returns to the primitive law of nature, and therefore becomes the first occupant's without any obligation. » — This third opinion is reduced in practice to the second. ²⁸¹ N. 578.

In favor of this opinion is what is customary in our regions, where, when a found thing is deposited with the magistrate, after a year has elapsed it is returned to the finder, that he may use it as his own, although under art. 539 of Cod. civ. things having no owner devolve upon the fisc ; which, as was said, is restricted in practice to immovables.

Against this later opinion the text of Saint Augustine praised above can be objected. But this authority does not seem decisive ; for it may be so interpreted that he who did not return the thing found, because he did not diligently inquire for the owner, truly stole it, in that he ought to have had it as another's and not his own. But from that it does not follow that he is a robber if he retains a thing which can no longer return into the hands of the former owner.

The text of Saint Thomas to which Billuart above sent back the reader is as follows : « If he to whom restitution ought to be made is entirely unknown, man ought to make restitution as he can, namely by giving in alms for his salvation, whether he be dead or living ; provided nevertheless diligent inquiry has been premised about the person of him to whom the restitution ought to be made. » This text does not seem relevant, since here restitution to be made on account of theft is treated of. For the holy Doctor answers the question : « Whether restitution must always be made to him from whom something was taken ? » that is, whether restitution ought to be made to the injured person, or can be made to another, v. g., to the poor ? And he answers in the body that the very injured person must be led back to the equality of commutative justice by restitution. In ad 2m he adds that, if the injured person exists and remains unknown, restitution must be made to him through alms for his salvation ; because otherwise restitution, which must certainly be made by him who received the thing unjustly, cannot be made. Moreover, he who finds a lost thing did not receive it unjustly : whence the solution given by the Angelic Doctor does not regard him. Elsewhere the holy Doctor openly contradicts the conclusion undeservedly attributed to him, in the passage alleged above by S. Ligori.

Whichever opinion the confessor embraces, he ought not disturb the finder who, with every diligence made to find the owner of the thing, retains it in good faith as his own, because he follows an opinion truly and solidly probable, and it is not licit for the confessor to impose his own opinion, which is only probable, as certain and indubitably obliging.

[Veins of this kind are reduced to a triple genus : 1° Mines, which contain originally, whether in the form of a vein or accumulated, gold, silver, lead, iron, coal born in the bosom of the earth, which in French is called houille ; 2° Quasi-mines, in French mineres, in which are found ferriferous earths and combustible earth called in French tourbe ; 3° Quarries, from which marbles and stones of every species destined for buildings are dug out.

I say : Attention being had to the natural law alone, veins or mines of whatever kind belong to him whose the land is, not only as to the right of digging, but also as to dominion and property, because they are a part of the land itself and pertain to its substance. Consequently Sylvius, Lessius, and Soto are not to be approved, who say they are things nullius and by the law of nature become the first occupant's.

Yet it must be confessed that it has been legitimately brought about, whether by common law, or by commonly received custom, that princes or republics vindicate them to themselves, the damage inflicted on the owner of the land being compensated : 1° because this suits princes or republics for sustaining the common burdens ; 2° because these veins are of great estimation, and at the same time most difficult of discovery, for the digging of which the resources of private persons are usually unequal : wherefore it interests the republic to excite men by proposing a reward, lest they leave veins of this kind unproductive. Hence

By French law of 21 April 1810, it is prohibited that mines of the first kind be dug without license of the supreme authority, granted to the owner of the land or to another, the just indemnity being saved. This license is not required in order that mines of the second kind may be dug. It suffices that the owner of the land notify his intention to the prefect of the province. Quarries can be dug without any license, provided the special statutes are observed, which provide chiefly for the safety of the workers.

III. Those who find lost goods are bound to restore them to the lord. If they be ignorant of the lord, they are bound to use diligence to discover him. The thing found is to be announced from the public pulpits, and notices are to be posted in public places, in which, with due caution, it may be made known. The finder can by right demand nothing for the finding. If the lord offer a gift, he may accept it. If after diligence used the lord be not found, many teach that the finder can retain those goods for himself; but to me it is more probable that they are to be distributed to the poor, or applied to pious works. They are nevertheless to be kept so long as there is hope of the lord being found. If the thing does not suffer long keeping, it is to be sold, and the price kept for a fitting time for the finding of the lord. If the finders be poor, let them consult prudent men whether they may retain part, or the whole, of the goods found.

The Holy Doctor OBSERVES, in the Speculum Animae, cap. 2, that certain things are found on the seashore, or in common waters; certain by digging, as treasures, concerning which Fagundez treats at length in the seventh Precept of the Decalogue, lib. 7. cap. 22; certain by finding, which were under someone's dominion, and their owner is not found.

AS TO those things which are found on the seashore, it is certain that things cast up in a storm, or submerged by shipwrecks, belong to their owners; and indeed in the Bull of the Coena, those goods which are the Christians' are struck with anathema for usurping them, as Caspens. notes, disp. 7. sect. 1.

The QUESTION concerns things cast up by the sea, which never had an owner, such as Fish, Whales, Pebbles, Gems, Pearls, Amber, etc.

The FIRST opinion is, that such things belong to the first occupant, whoever finds them. So Firmus v. Inventum, Gutierrez l. 2. quaest. can. cap. 9. Rodriquez in summa, cap. 197. Tannet. disp. 4. quaest. 1. dub. 7. and it is established from C. Ius generale and C. Ius gentium, dist. 1. and C. dilectissimi 12. quaest. 1. and l. 1. ff. de acq. rer. dominio from § 1. and §. singulorum, and §. capilli, and §. fere, Instit. de rerum divisione. This is the opinion of D. Bonav. loc. cit., and Caspens. disp. 7. sect. 3. seems to suppose it, as common; and so it is often reported to have been defined in the royal senate of Lusitania, as Cabedo relates, 1. p. decisione 48. num. 9. and Fagundez in septimum praeceptum, l. 7. cap. 22. num. 4. and so it is found in the Ordinationes Lusitanae, lib. 2. tit. 16. And the same is noted by Barthol. ad l. 3. ff. de acquir. rer. dominio. And Ripa l. Rem, quae nobis, ff. de acquir. possess. numero 34.

Cabedo ADDS at decis. 48. that amber indeed, found on the seashore, belongs to the first occupant and finder; but that whales belong to the King; from which it also follows that amber drawn from the whale's belly belongs to the king. Yet Cabedo says it was decided that amber, which is ambra, a kind of fragrance, does not belong to the King, nor is the fifth part of the royal treasury owed from it.

Yet the SECOND opinion was, that these findings belong to the Prince. So Angelus §. Item lapilli, Instit. de rerum divis. And as to amber it is proved, because the offspring follows the womb, as Barthol. says, l. si quis ex Pamphila, ff. de legatis. But whales belong to the King by custom: Therefore also amber: Yet this opinion is improbable; nor are the whales themselves, from which amber is obtained, the Kings' by common law.

AS TO animals wandering in alien lands, when even with diligence applied their owners could not be recognized, according to the Lusitanian Law in the new Ord. l. 2. tit. 26. they are the King's. The same Law is found in the Kingdom of Castile, lib. 6. tit. 13. Yet it is more probable that they are to be restored to the poor, as Peter Nauar. asserts, de restit. lib. 4. cap. 2. num. 82. Fagundez loc. cit. num. 7. Armilla verbo Inventum. Paludanus in 4. dist. 15. and others.

AS TO inanimate goods which had some owner, such as money, clothes, gold, etc., whether they can be retained by the finders and by the rich, if after diligence their Owner is not found.

The FIRST, affirmative opinion is that of Soto, de Iust. lib. 5. quaest. 3. art. 3. Aragonii 2. 2. quaest. 62. art. 3. Petri Nauar. de restit. lib. 4. cap. 2. dub. 9. num. 75. Rodriquez summa p. 2. cap. 41. Sayri lib. 10. tract. 5. cap. 3. from num. 18. where he reports others, and Maldor. tract. 4. cap. 4. disp. 3. judges it probable. The reason is, because no law destines these things to the poor. Tanner. disp. 4. quaest. 6. dub. 14. with others holds this to be probable.

The SECOND opinion is, that these are to be given to the poor. So Molina, Tract. de Iustitia, disp. 645. Rebell. p. 1. lib. quaest. 2. sect. 1. Lessius l. 2. cap. 14. dub. 7. Turtianus, 2. 2. disp. 42. dub. 2. Azorius tom. 3. l. 4. cap. 27. Count. ad reg. peccatum, p. 3. §. 1. Malder. tract. 4. cap. 4. disp. 3. D. Thom. 2. 2. quaest. 62. art. 5. ad 3. Gutrier. l. 2. qq. can. cap. 9. disp. 9. Syluester v. Restit. 3. quaest. 1. Nauar. summa Latina, cap. 17. num. 91. et 171. Armilla, v. inventum, and v. restitutio, num. 20. and commonly all those whom Fagundez subscribes to in septimum praeceptum, lib. 7. cap. 22.

The REASON is, because these must be judged as uncertain goods are. But those are the poor's: Therefore: The minor is proved from C. Cum in de usur. and C. cum sit nimis de Iudaeis, and 14. quaest. 5. canone Non sane. And l. omnes peregrini, Cod. de furtis eff., where it is defined that the goods of foreigners, who die in Hospitals, are to be applied to those Hospitals themselves.

But whether these are the poor's by positive law alone is in dispute with Fagundez cap. 21. and it seems more probable that they are owed by the law of nature.

Concerning these the Holy Doctor says; that they certainly cannot be retained, if it stands probable that they were under someone's dominion, and he brings forward that of D. August. serm. 21. de verb. Apostoli: If you have found anything, and have not returned it, you have stolen it. But if the owner cannot be found, the custom of the land is to be kept: The Holy Doctor indeed very well defines that, considering the variety of laws and customs in various regions, these matters are to be deliberated more maturely.

AS TO Treasures, a Treasure can thus be defined with D. Bonavent. loc. cit.: It is an old deposit of money, or of movable things, of whose dominion, or concealment, or of the depositor, no memory exists. So it is established from l. Unica, Cod. de Thesauris, and § Thesaurus, Instit. de rerum divisione.

But a Treasure can be found in one's own field, or in another's land. Concerning that which is found in another's field, free from feud and emphyteusis, if treasures be dug up by chance, the Holy Doctor asserts that half belongs to the finder, the other half to the Lord of the field; it is plain from § Thesaurus, Instit. de rerum divisione: And l. unica, Cod. de Thesauris; and this half part is owed to the Lord of the ground before any sentence, because this provision of law is not penal, but definitive of the ownership of things, and therefore binds before a sentence. Less. de Iust. lib. 2. cap. 5. dub. 15. num. 58. and 59. follow, Nauar. summa, cap. 17. num. 175. Caietanus 2. 2. quaest. 66. art. 2. Mercado de contract. cap. 15. num. 128. Sà verbo Thesaurus, Rebell. lib. 1. de oblig. iust. quaest. 15. sect. 2. Molina T. 1. de inst. disp. 56. and others agree. See Tannetum disp. 4. quaest. 1. dub. 5. who adds that by natural law precisely, the whole belongs to the finder.

The Holy Doctor proves this from that passage of Matth. 13. where the man who finds the treasure is said: He went, and bought that field, so that the whole treasure might be his. For when it is found in his own field, the treasure is entirely the first occupant's, provided a real apprehension of it intervenes; for the bare, mere finding of it does not suffice; and this indeed by common law, as is plain from l. una, C. de Thesaur. and the said §. Thesaurus, Instit. de rerum divisione; and Valasius teaches it, de Iure Emphytheutico, q. 15. n. 1. Fagund. num. 13. with Bartolo lib. 1. num. 17. and 18. ff. de acquir. possess. Cyno l. licet, num. 6. ff. on the same title, and others, in Valascus.

¶ But if it is found by the Emphyteuta in an emphyteutic field, or by the Feudatary in such a field.

The first opinion is, that by common law it is wholly the emphyteuta's. So commonly the Jurists; Accursius §. Thesauros, Instit. de rerum divis. Platea there num. 2. Faber num. 1. Portius, and Iason there, Andreas Isernia, and Alvarot. Tit. quae sint Regalia, and others in Valascus at the place cited, quaest. 15.

The second opinion will be that it is to be divided between the lord and the emphyteuta. So Valascus speculator de emphyt. num. 158. vers. 132. Nauar. summa, cap. 17. num. 173. Sà v. Thesaurum, and others in Valascus.

The reason with D. Bonav. is, because half the Treasure, according to the laws, is the Lord's; but the Emphyteuta, and the Feudatary, are not lords of the field simply, but only by reason of the useful dominion, as is plain from l. 1. Cod. de Usufruct. l. 2. Cod. de Mancip.

You will say: Therefore useful dominion profits nothing; for, even if he finds it in another's field, half will be his.

Fagundez ANSWERS that it does profit, because, whether he seeks the treasure by chance or by design, he will have the half; not so in another's field, whose use he does not have; for if in another's field he deliberately seeks it without the Lord's will, the whole is the Lord of the ground's; yet he is not bound, before the judge's sentence, to give the whole, but the half; but after the sentence he is bound to give the other half, which is a penal law on account of the injury done to the Lord of the field.

¶ But if a treasure is dug up in a public place, say on a road, it will be wholly the finder's. So Less. lib. 2. cap. 5. dub. 16. num. 63. Couar. ad reg. peccatum, p. 3. §. 2. citing Baldus, and Cynus. The reason is, because there is no one who is the special lord of these places. But if it is found in a public place, that is, one specially possessed by the Prince; the half will be the Prince's, as is found in §. Thesauros, loc. cit. Public roads, however, are the Prince's only by a general disposition.

Therefore the gold mines and veins of silver, after the occupation of the Kings, remained by the law of nations to the inhabitants as finders. Hence it is inferred that the Basilians and the Peruvians could not licitly be deprived of gold mines and veins of silver, since they were the peaceful finders of these, and they had inflicted no injuries on the Christians, for which war might justly be waged against them. Therefore much less could they be deprived of them after their conversion to the faith, as Ioan. XXII. defines. See Rodriquez cap. 47.

¶ But if a treasure is found in a public sacred place, as a cemetery, it is more probable, and according to the mind of S. Bonav., that it is to be divided, according to what was said above. Thus hold Nauar. summa cap. 17. num. 175. Rebel. lib. 1. quaest. 15. sect. 2. Couar. ad Regulam Peccatum, p. 3. §. 2. Gomez ad §. 45. Taur. num. 52. Molina disp. 56. Sylvest. v. Inventum; and therefore the half is the finder's, and the half the Church's prelate's, because today the Church in this respect is held to be theirs, as Fagundez says num. 26. Tanner. num. 55. who understands it if it is found deliberately; but if it be found there by chance, the whole belongs to the finder, as Lessius and Retella teach, in Tanner.

To me it does not please that the Churches are the Prelate's, because he has here only the right to Tithes and other Parochial rights, not to the ground. Therefore I think the treasure is wholly the Church's, if it is found deliberately: but the half, if by chance. Nor is the Church to be reckoned with public roads; in which Tostatus also errs, quaest. 66. ad 13. Matth. For Churches have rights, etc. Much more Monasteries and Colleges; as Less. says t. 1. lib. 2. cap. 5. dub. 15. num. 50. and Fagund. num. 26.

If a treasure is found in a dowry field, the half will be the wife's, who is the lady of the ground, although, while the marriage stands, the husband has the usufruct; for a treasure is not reckoned among the fruits; as Fagund. warns, num. 28. Whence it comes that, if found in a farm let or rented, the half is the lord of the farm's, the half the finder's, and nothing the usufructuary's, etc., according to the rule of Law brought forward above by D. Bonav.

But if it be found by magical art, or by other means condemned by law, it devolves to the Fisco, leg. una, Cod. de Thensauris, lib. 10. Gloss. there, as Fagund. note, num. 32. Tanner. num. 56. with Molina T. 1. de Iust. disp. 56. Couar. ad reg. Pecc. 3. p. §. Lopez de contr. lib. 1. cap. 50. Aragon. 2. 2. quaest. 66. art. 5. Nauar. Man. Lat. cap. 17. num. 175. Sà, v. Thes. Valasc. de iure Emphyt. p. 1. quaest. 15. and others commonly.

For a fuller knowledge of this matter it may be asked: Whether it is lawful to buy a field in which we know there is a Treasure, the treasure not being indicated to the Lord of the field, nor its price increased.

The first opinion, which asserts it, is that of D. Bonaventura loc. cit. D. Thom. 2. 2. quaest. 66. art. 5. Soto lib. 5. de Iust. quaest. 3. Nauar. cap. 17. num. 175. Molina de Iust. disp. 56. and disp. 333. Sylvestri v. inventum, Rebell. 2. p. l. 9. quaest. 5. num. 2. Sà v. Thesaur. Aragon. 2. 2. quaest. 66. art. 1. Mercado de contract. cap. 15. Rodriquez summa, cap. 47. Lopez p. 2. Instit. cap. 1. Lessii lib. 2. cap. 5. disp. 15. num. 64. Fagundez num. 40.

But it is against Angelus, and Firmus v. Inventum, Tabiena v. Restitutio §. 26. and Valas. quaest. 15. who inclines to this opposite view.

I assert with the first opinion that such a field, a repository of Treasure, can be bought, with consideration had of the field alone.

It is proved by the authors of that opinion, with D. Bonav., from that passage of Matth. 13. The kingdom of heaven is like unto a treasure hidden in a field: which when a man hath found, etc., he goeth, and buyeth that field; where he asserts that a prudent man can buy that field, and says nothing about the increase of the price.

They answer that nothing is gathered from that, since he says nothing of the price; but that it is left in its due estimation, since Christ does not favor frauds.

But on the contrary; for Christ in his most pure doctrine would have expressed what was necessary for a licit contract. Nay, I gather from this that Christ did not wish to require anything else; for his purpose was to speak of the purchase of the kingdom of heaven by merits, which are not of themselves adequate to so great a glory, as the holy Fathers Hilary, Peter Chrysol. Eusebius Emiss. and Haymo expound; or by the treasure Christ himself is understood, as D. Hieronymus, and Christianus Druthmarus, and the ordinary Gloss explain; or the WORD OF GOD, as SS. Chrysost. and Gregory explain in the Bibliotheca, Homil. But it is certain that a force is put in the Treasure in that it is hidden, and consequently the price of the field is unknown, by which Tostatus was deceived, quaest. 65. in cap. 13. Matth. for the word of preaching also has a hidden virtue, as he teaches in the other parable, because it is compared to a grain of mustard seed, as S. Hieron. explains; for it contains heavenly wisdom, unknown to the wise of this world: So likewise Christ is one in whom are all the treasures of the Wisdom of God hidden, and yet he is: To the Jews a stumbling block; to the gentiles foolishness. So also of the blessed kingdom, which is acquired on the way. Wherefore it would not be well applied, if the field were bought at a price adequate on our part. See the Fathers alleged, De restitutione debita ex impeditis alicui bonis.