383. On occupation in general. Occupation (Aneignung) is the apprehension of a thing which belongs to no one, with the mind of acquiring it for oneself.

1. Occupation, if the due conditions are present, is a legitimate mode of acquiring ownership: for by the law of nature things belonging to no one become the things of the first occupier. Therefore just as at the beginning private ownership began by occupation of things which then were all things belonging to no one, so now things which belong to no one pass into the ownership of the occupier (n. 368).

2. The conditions which are required that some thing become the thing of the occupier are: a. that the thing belong to no one, whether it is vacant or abandoned; otherwise by occupation an injury would be done to the owner; b. that true or real apprehension be present; c. that the mind of making the thing one's own be present.

At the present time in our regions, where there are no parts of the earth not yet occupied by men, there occur only occupations of animals, which are made by hunting, fishing, and fowling, and occupations of found things, which are either buried, abandoned, hidden in the bosom of the earth, or lost.

384. Distinction of animals. Animals are distinguished into three kinds:

a. Tame or domestic animals, which by their nature use human society and therefore do not enjoy natural liberty, such as horses, sheep, oxen, chickens, dogs. These of themselves have an owner.

b. Tamed or domesticated animals, which of themselves indeed enjoy natural liberty, but by the industry of men are deprived of it and are subjected to their ownership, such as birds in a cage, bees in a hive, doves in a dovecote. Fish in private fishponds and wild animals enclosed by fences are also numbered among domesticated animals.

c. Wild or sylvan animals, which by their nature shrink from human society and enjoy natural liberty, such as hares, fish, birds. These do not have an owner.

385. On occupation of animals.

1. Tame animals always remain of the former owner, even if they wander off or depart from custody; for since they are domestic by their nature, they never become things belonging to no one.

a. Therefore they cannot be occupied by another, neither they themselves nor their fruits, but must be restored to the owner even when dead, wherever they have been found.

b. The same is also valid in the case in which they certainly would have perished for the owner unless they had been freed from destruction; for a thing does not cease to belong to its owner because it has been rescued from destruction by another. Therefore animals snatched from a fire or from a wolf must be restored to the owner; nevertheless, for the labor a just stipend is owed.

386. 2. Domesticated animals remain of the former owner as long as they are detained in custody; but as soon as they have escaped from custody and recovered their former liberty, they become the things of the first occupier.

a. Animals which are detained in custody are of a twofold kind: some which, once sent out from custody, are not accustomed to return, such as deer, hares, most birds, fish; and others which are accustomed to return, such as doves and bees. Now the former are judged to have recovered liberty when their pursuit has become morally impossible for the owner, or when the owner no longer pursues them; but the latter when they have lost the custom of returning. But they are judged to have lost the custom of returning if they do not return for some days, which positive law determines more accurately.¹

b. It is not licit without injustice to attract to oneself by fraud the domesticated animals of another, such as doves, for example, by throwing out more exquisite food, because the owner of a thing has a strict right that his own thing not be withdrawn from him by others through force or fraud.²

Whether it is licit to kill the animals of another (dogs, doves, chickens) which harm a field. It is licit to kill them lest they harm: for it is licit to repel force by force. But these things are required: a. that the damage cannot be forestalled in another way, for example, by driving them away or by warning the owner; beta. that the damage which they inflict be notable or at least equal to the damage which the owner of the animals suffers; but doves, chickens, and such things inflict notable damage only at the time of harvest and sowing; gamma. that the preservation of one's own thing be directly intended, but not the damage of the neighbor; delta. that the animals killed can be retained only as compensation for the damage inflicted.³

¹ From C. A., Section 384, a swarm of bees which the owner does not pursue for two days, and a domesticated animal which has not returned to the owner for 42 days, can be occupied by another. Cf. C. G., Section 961.

² Cf. Elbel-Bierbaum, II, pr. 5, n. 207.

³ C. A., Section 1320 ff.; C. G., Section 833 ff.

387. 3. Wild animals, as long as they wander freely, can be taken by anyone: for they belong to no one, and therefore become the things of the first occupier. Therefore he who takes an animal of this kind becomes its owner by the occupation itself, whether he took it on his own land or on another's land; and he preserves ownership of it as long as he detains it in his own custody, or, if it has escaped, as long as he pursues it with hope of recovering it.

a. A wild animal which is found on another's unenclosed land does not pertain to the owner of the land, but belongs to no one. The owner of the land indeed has the right of prohibiting another from hunting on his land and of demanding compensation for damage which has been brought upon the land by the hunter; but the wild animal killed or taken from a nest pertains to the hunter.

b. Wild animals which are in enclosed lands, and fish which are in preserves from which they cannot escape, pertain to the owner of the land or preserve, because through the enclosure erected to guard them they have already been taken. Therefore he who hunts in enclosed groves or fishes in private fishponds acts against justice and is bound to restore the animals taken or an equivalent price. Yet if the enclosed forests or lakes of water are of very great extent, so that the capture of the animals becomes uncertain, they are not judged to have lost their natural liberty. Therefore he who hunts or fishes in places of this kind indeed injures another's right, but the damage inflicted must be taken from the probable hope which the owner had of taking those animals.¹

c. A wounded wild animal belongs to the hunter wounding it if it has been so wounded that it can no longer flee away: for the hunter by the wounding itself apprehends it in fact. Likewise a wild animal caught in a snare belongs to him who placed the snare, provided it is so ensnared that it cannot escape; for by the snare it is in reality occupied.

It is asked whose a wild animal is which is caught in a snare which someone placed on another's land. a. Besides the owner of the land and the hunter, no one has a right in the captured wild animal; therefore any other person who either releases the wild animal from the snare or takes it away acts unjustly, unless it would have escaped; for if it would have escaped unless another extracted it, it belongs to the one extracting. beta. A wild animal caught in a snare is indeed of itself the hunter's; nevertheless the owner of the land, if the snare was placed against his will, retains the right of impeding him from approaching to extract the wild animal, and therefore of releasing it while still alive, and probably even of taking it for himself.²

¹ Laymann, l. 3, tr. 1, c. 5, n. 12; Holzmann, Theol. moral., t. 4, n. 31.

² Cf. Gury-Ballerini, I, n. 572, q. 3, note.

388. On the right of hunting and fishing. 1. In an open place accessible to all, whether public or private, each one can of himself hunt (fish), provided he does not bring damage upon another's lands. Nevertheless hunting (fishing) can be prohibited. From received custom this prohibition is judged to be merely penal, which obliges only to paying the fine or undergoing the penalty. But if the right of hunting has been leased, the tenant acquires the exclusive right of hunting in that place; and in our European regions the right of hunting is leased almost everywhere.

Yet laws which prohibit hunting (fishing, fowling) at a certain time to avoid a lack of wild animals (Schonzeit) rightly seem to most to be preceptive laws, which by reason of the common good in a matter of sufficiently great importance oblige in conscience from legal justice.

2. If the exclusive right of hunting (fishing) in an open place belongs to someone, whether because he has leased the right or because the owner of the land has reserved it for himself, by this fact he does not acquire a right in the animals which are found in that place, since they still enjoy natural liberty. But with the right of hunting there before others he has the hope of taking the animals which are found there. Therefore he who hunts or fishes in a place of this kind against his will, by the very hunting (fishing), injures the right of the tenant or owner, but makes the animals killed his own and can retain them; nevertheless he ought to repair the damage inflicted.¹ But damage is not judged to be inflicted unless either several or larger animals are killed.

a. If a great slaughter of animals or a great capture of fish takes place, the hope of the owner of taking at least some of them is manifestly injured. If only one or another animal is taken, the hope which the owner had of taking precisely that animal is injured. Now if the matter concerns smaller animals, and if there are many animals there, this hope is almost none and is worth little or nothing; wherefore no restitution must be made. But if there are few animals of this kind there, or if the animals are larger, this hope is judged to be worth about half the price of the captured animal itself.²

b. Where hunting is prohibited in public or private forests, the owners of the forests or tenants of the hunting: alpha. ought to beware lest wild animals be permitted to eat down or devastate fields or meadows; otherwise farmers have the right of defending their own goods not only by driving away the wild animals, but also by killing them if there is need; beta. they are bound to repair damages which are inflicted either by wild animals or by hunters on the occasion of hunting.

Article Second. On Invention

Invention is a species of occupation. But found things are of four kinds: treasures, vacant things, abandoned things, and lost things, concerning which one must treat in particular, because the rights of the finder are determined diversely by positive laws according to the diversity of the thing found.

¹ Positive laws can not only prohibit hunting, but also impede the hunter from acquiring ownership of the captured wild animal; statutes of this kind, if they certainly exist, oblige in conscience. C. G., Section 958.

² E. Muller, Theologia moralis, II, Section 102.

389. On the finding of a treasure. A treasure is a precious thing, buried or hidden, which no one can prove to be his own.

a. Therefore three things are of the notion of a treasure: alpha. that it be a precious thing; beta. that it belong to no one; gamma. that it be buried or hidden. Therefore, in the proper sense, metallic or coal veins which are found in the bosom of the earth are not treasures.¹

b. The owner of the land in which the treasure is found is he who has its direct ownership. Therefore if a treasure is found in the land of an ecclesiastical benefice, the owner of the land is not the beneficiary but the Church;² if it is found on public land, the owner is the community or city (the fisc), which administers public goods.

c. He is not called the finder of another's thing who first sees it, but he who sees and apprehends it. He is not called the finder of a treasure who first sees and apprehends a treasure already uncovered or dug up by another, but he who uncovers it or makes it visible. The first right of apprehending the treasure belongs to the detector; if the detector does not use this, the treasure can be apprehended by another.

¹ It seems to make no difference whether the thing has been hidden by the hand of man or by the powers of nature; therefore C. A., Section 398, refers ancient things which are dug up (antiquarische, archaologische Funde) to treasures; likewise C. G., Section 981.

² From C. A., Section 399, each is considered as owner of the land: both he who has direct ownership and he who has usufruct.

390. 1. By the law of nature a treasure seems to be a thing belonging to no one and therefore a thing of the first occupier, that is, of the finder, who by finding occupied it. For it was not born in the land in which it is found, but was placed there by an external force. Yet positive laws consider a treasure in some way as a part of the land and therefore adjudicate part of the treasure to the owner of the land.

2. Recent laws nearly agree with the dispositions of Roman law:¹

a. A treasure which is found in one's own land belongs wholly to the finder. (A law which ascribes the whole treasure or part of it to the fisc is penal.)

b. A treasure which by chance is found in another's land must be divided; therefore half is of the owner of the land, but half is of the finder.

This law must be observed in conscience, and indeed before the sentence of the judge (n. 356). At what time the owner of the land acquires a right in part of the found treasure, whether by the finding itself or after the finder apprehends it, depends on the disposition of the law. Ordinarily from the codes the treasure found, not only apprehended afterward, must be divided between the owner of the land and the finder. Therefore the finder could not without injustice bury the treasure again, buy the land, and retain the whole for himself.²

c. A treasure which deliberately and without the knowledge of the owner is sought and uncovered in another's land, after the sentence of the judge, either wholly belongs to the owner or must be divided between the owner and the fisc.

alpha. The law prohibiting that the lands of others be dug up was established to protect the rights of owners; but transgressors of this law are deprived, as a penalty, of part of the found treasure. Because the law was established as a penalty, the finder of the treasure is not bound to undergo the penalty before the sentence. Hence if the finding remains hidden, he can licitly agree with the owner of the land concerning dividing the found treasure.

beta. If money or another precious thing is found in a chest, or in an old garment, or in a corner of a house, whose owner cannot be found, it can be considered as a treasure; and therefore the whole is of the finder if he himself is the owner of the thing in which it is found. Otherwise the found thing must be divided between the finder and the owner of the thing which contains the treasure.

¹ C. A., Section 398-401. By decree of 16 June 1846, political authority renounces the part reserved to itself there. C. G., Section 984.

² Cf. Matt. 13:44.

391. On occupation of a vacant thing. Vacant things by the law of nature become the things of the first occupier, unless by human law their ownership, either in whole or in part, belongs to another: for things belonging to no one by the law of nature become the things of the first occupier.

a. Mines or useful things hidden in the bosom of the earth, such as metallic, marble, sand, coal veins, etc., are considered by some (Lugo) as accessory parts of the land in which they are found, which therefore pertain to the owner of the land. Yet others (Lessius, Soto) adjudicate mines to the first finder, because it does not seem equitable to them to consider a precious thing, such as a vein of gold, as an accidental part of a thing of much lesser price. Concerning this matter the codes must be consulted.

b. Movable vacant things, such as little stones, gems, fragments of gold, and things of this kind, become the things of the first occupier.

392. On occupation of an abandoned thing. Abandoned things likewise belong to the first occupier, unless their ownership is attributed to another by positive law: for things belonging to no one become the things of the first occupier.

a. Goods found on the shore of the sea or on the bank of a river after a shipwreck or flood, likewise goods thrown out from fear of shipwreck, cannot be held as abandoned and therefore do not become the things of the first occupier.¹

b. Wood or other goods which are carried from one place to another by flood are not abandoned things unless from the circumstances it appears either that the owner is no longer solicitous about them or has no hope of recovering them.

c. Fruits, such as nuts, grapes, ears of grain, etc., which remain after the harvest has already been completed, from the presumption that owners do not care about them, are held as abandoned. Therefore the owner can also forbid their collection.

d. He who finds coins in a shop or in a church (for example, by sweeping it) or in a public street can retain them for himself when, on account of the great concourse of men into that place, there is no hope that the owner will be found. Yet if the found thing is of some value, it ought to be deposited in the sacristy or with the pastor, where things lost in the church are usually sought by the owner. But if after some time (about two months) the owner does not claim the thing for himself, it belongs to the finder.

e. In doubt whether a thing is lost or abandoned, it must be treated as lost.

f. Goods left by one who has died without a testament and without an heir, whether movable or immovable, fall to the fisc.²

¹ C. A., Section 388.

² C. A., Section 760; C. G., Section 1936.

393. On the finding of a lost thing.

A lost thing differs from a treasure in two ways: a. in that it is not hidden; b. in that it is not a thing belonging to no one, but has an owner, although unknown. But where, with the circumstances considered, there is no longer any hope of finding the owner, it is judged to have fallen from his ownership and is held as abandoned.

1. The finder can leave the found thing in its place; nevertheless ordinarily there exists an obligation, not indeed of justice but of charity, of carrying it with him.

An obligation of justice does not exist because, with special contract excluded, no one is bound from office to carry another's thing with him; but an obligation of charity can exist. For from charity we are bound to avert damages from the neighbor if it can be done conveniently. Hence if otherwise the owner would not recover his thing, and if there is hope of detecting the owner, the obligation of taking the thing urges, unless inconvenience excuses. This obligation is greater according as the detriment which the owner suffers from the lost thing is greater.

2. He who has taken the found thing is bound from justice to seek the owner, not at his own expense but at the owner's, and meanwhile to guard it diligently.

a. He who takes a found thing, by that very fact, spontaneously receives another's thing into his own custody. But he who has another's thing in his custody is bound diligently to preserve it for the owner and to render it to the owner; and if the owner is unknown, to seek him by suitable means.

b. He who culpably neglects to investigate the owner, and a fortiori he who deliberately hides the found thing, when hope of finding the owner exists, is the cause why the owner cannot recover his own thing. Therefore he becomes an unjust possessor of another's thing and cannot retain it, but, if the owner does not appear, ought to distribute it to the poor or to pious uses.

c. A certain mode of investigating the owner is indeed not prescribed by the law of nature, but any mode suffices which is judged suitable for the end; but by positive law the mode of investigating the owner is accurately determined.¹

d. If the found thing is not of lesser importance,² the mode of investigating the owner prescribed by law must generally be observed in conscience: for private inquiry is not judged an apt and sufficient means of finding the owner. Therefore he who knowingly and willingly does not observe the statutes of positive law does not become owner of the found thing, not even by prescription, because good faith does not assist him.³

3. If the owner has been found, the finder is bound to restore the thing to him; nevertheless the expenses made in investigating the owner, and the reward if any has been promised by the owner or by law, he can by right demand or deduct for himself from the thing.

4. If, after diligent inquiry has been employed, the owner is not detected, the finder can retain the thing for himself by right of occupation; and if afterward the owner appears, he is no longer bound to restore the thing to him.

a. Once sufficient diligence has been employed in investigating the owner, it can prudently be judged that the owner can no longer be found. But where there is no reasonable hope of finding the owner, the thing by natural right or from the tacit consent of men is judged abandoned. But an abandoned thing becomes the thing of the first occupier. Therefore by occupation the finder acquires ownership of the found thing, not by prescription.

b. Some positive laws establish that the finder acquires ownership of the found thing after a year, others after three years.⁴ By this statute there is defined the time after which the owner is judged to lose ownership in his thing; for it is prudently presumed that after this time has elapsed the owner can no longer be found.

Article Third. On Accession

Accession (Verbindung, Vermischung, Umbildung, Verarbeitung) is a mode of acquiring ownership by the fact that something is joined to one's own thing. Three species of accession must be distinguished: natural, industrial, and mixed accession, according as something accedes to one's own thing either by the powers of nature alone, or by human industry alone, or from the concurrence of each.

¹ C. A., Section 389, 390, where a diverse mode is prescribed for the diverse value of the found thing; C. G., Section 965 ss.

² A thing is of greater importance from C. A., Section 389, if it exceeds the value of 2 crowns; from C. G., Section 965, if it exceeds the value of 3 marks; from custom, if it exceeds the value of 10 (according to others, 20) crowns.

³ Cf. Lehmkuhl, Das burgerliche Gesetzbuch, at Section 965 ff.; Carriere, De iustitia, I, n. 336, 347.

⁴ C. A., Section 391, 392, 1466; C. G., Section 973.

394. Natural accession can happen in three ways:

a. By fructification, by the fact that fruits arise from someone's tree or land without human industry. Their ownership is determined from the principle: a thing bears fruit for its owner.

b. By birth, by the fact that an animal arises from someone's animal. Its ownership is determined by the rule: offspring follow the womb, that is, whose the generating animal is, his also is the generated animal, whether it was conceived from one's own or from another's animal.

c. By alluvion, by the fact that earth is added to someone's land. If it accedes gradually, it immediately pertains to the owner of the land;¹ but if a notable part of earth accedes suddenly (avulsion), the owner of the land acquires ownership if the prior owner has not claimed it for himself within the time prescribed by law (within a year).²

¹ C. A., Section 411.

² C. A., Section 412.

395. Industrial accession can happen in four ways:

a. By specification, when another specifically diverse form accedes to one's own thing, as if someone makes cloth from my wool, or a garment from cloth, bread from my wheat, a ring from my gold. From the law of nature the ownership of the new thing is determined according to the axiom: the accessory follows the principal. But since frequently it cannot be determined whether the principal is the substance of the thing or the new form, one must stand by the dispositions which the civil code contains concerning this matter.¹

From the codes, some establish that the new thing pertains to him who gave the new form to the matter, with the price of the matter paid, unless bad faith intervened or the value of the matter is greater. But others establish that the new thing pertains to him whose the matter is, with the price of the art employed paid, unless the price of the art far exceeds the price of the matter and unless bad faith intervened.

b. By adjunction, when another thing is so joined to one's own thing that both make one whole, as if someone makes a painting on my canvas or inserts a gem into my ring. If the two things cannot be separated, ownership of the whole is determined from the same axiom: the accessory follows the principal, which positive law determines more accurately.

c. By commixture, when solid things belonging to diverse owners are joined; by confusion, when liquid things are joined, as if wheat is mixed with another's wheat, wine with another's wine.

alpha. If the united things can be separated, separation ought to be made and each thing must be restored to its own owner, unless someone uses another's thing only for repairing his own, for example, another's thread for sewing his own garment. In this case the owner of the principal thing becomes owner also of the accessory thing, but he is bound to pay to the owner of the accessory thing its price.

beta. If the united things cannot be separated, as if the wheat of one is mixed with the wheat of another, both are owners of the whole mass, which must be divided between them in proportion to the part previously pertaining to them. Yet if the part of one can be considered as principal, because it is greater or more precious, he, if he wishes, becomes owner of the whole, which therefore he can retain for himself, yet with the obligation of paying to the other the price of his part.

d. By building, when a building is constructed on one's own land from another's material or on another's land from one's own material. The laws nearly agree in this, that according to the principle, the accessory follows the principal, they establish that the building, as accessory, pertains to the owner of the land, who nevertheless ought to compensate the other, unless he acted in bad faith.

He who knowingly and in bad faith builds on another's land loses ownership of the building and cannot demand compensation either of the material or of the labor. In this way the S. C. of Bishops and Regulars, 11 March 1892, following Roman law, decided a particular case;² nevertheless modern laws do not all define the matter in the same way.³

¹ C. A., Section 415; C. G., Section 946-950.

² Cf. Acta s. sedis, XXIV, p. 550.

³ Cf. C. A., Section 417-419; C. G., Section 910, 947.

396. Mixed accession happens in a twofold way:

a. By sowing, when seeds scattered in another's field germinate. b. By planting, when plants placed in another's land grow. Ownership of the thing which grows in his land is attributed to the owner of the land, according to the little verse:

Whatever is planted, sown, or built, All yields to the soil, if nevertheless it has set roots.

Yet if something is planted in a movable thing, for example, a flower in a pot, ownership of the whole must be determined from the principle: the accessory follows the principal. Therefore according as the flower or the pot is of greater price, the whole pertains either to the owner of the flower or to the owner of the pot.

TITLE is a cause sufficient to confer property in a thing. There are several kinds of title, some derived from the natural law, others due to positive law, and others which have their effect from the will of private persons. They may be reduced to title by occupation, by accession, by prescription, and by contract. On account of its importance and the abundance of material we will treat of contract in a separate Book; the other three titles must be considered here.

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

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

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

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

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

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

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

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

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

I. Notion. Occupation, taken generally, is the apprehension of a thing with the intention of making it one's own; if you add: of a thing which belongs to no one, you have the notion of occupation insofar as it is a mode of acquiring ownership.¹ It is said:

1. Apprehension of a thing; by this is understood an external act by which someone subjects a thing to himself; and this can occur in different ways for different things.

2. Which belongs to no one, that is, of a thing which either has not had an owner up to now, or is destitute of its owner, for example because the owner has abandoned ownership. Note, however, that goods of shipwrecked persons taken from the sea or cast by the waves onto the shores are not things belonging to no one;² nor are the goods of soldiers who have been killed.

¹ Code of one's country.

² Bull In Coena Domini. Civil laws everywhere establish that shipwrecked goods found on the shore are to be handed over to the official constituted for this purpose.

II. Force of occupation. Occupation is a mode of acquiring ownership.¹ For the individual has the right of having private ownership, as was proved in n. 762. But unless you admit that occupation is a mode of acquiring ownership, originally, that is, when things were undivided, that right could not have been exercised by the individual, or private ownership acquired by the individual. For, if occupation as a mode of acquiring ownership is excluded, that right would have had to be exercised through labor. But several things can serve our use which require no labor, or even exclude it, such as animals, metals found on land belonging to no one, and many fruits. But that such things should be excluded from private ownership is asserted irrationally. It remains, therefore, that - if they belong to no one - they are acquired by occupation.

With these things noted generally, we shall speak specifically about the occupation of animals, about found treasure, and about lost things.

¹ Encyclical Quadragesimo anno (Acta Apostolicae Sedis 1931, p. 194).

I. Species of animals. Animals, as they are considered here, are distinguished into tame or domestic animals, animals made tame or tamed or gone wild, and wild or sylvan animals. Tame animals are those which by their nature serve man and therefore are said to lack liberty, such as horses, dogs, hens, and so forth. Animals made tame are those which have been made such by human industry that they serve man and therefore are said to have been deprived of primitive liberty, such as doves in a dovecote. Wild animals are those which are subject neither by nature nor by human industry to man, and therefore, unless they are captured, are said to enjoy full liberty, such as lions, birds, and fish. Therefore:

I. Notion. A treasure is any thing hidden or buried by man or by a natural event, which now has no owner, or whose owner now cannot be known. It is said:

1. Any thing, whether money or another thing; according to Roman Law this ought to be precious. But, considered according to natural law, which we attend to, it suffices that it be curious, for example a marker-stone which has no saleable value.

2. Hidden or buried; if it lies publicly in the road, it is a thing recently lost, concerning which there will presently be discussion. Per se it does not matter whether it is hidden in an immovable or in a movable thing. Practically, it should be seen whether experts in law interpret the respective civil law so that they exclude from the notion of treasure a thing hidden in a movable thing.

3. By man or by a natural event, for example an inundation. Therefore veins of coal or metal are excluded, since they are not said to be hidden by a natural event.

The finder of a treasure is the one who makes it visible; it is not required that he have apprehended it, nor, more probably, that he have seen it. But the finder of a lost thing is said to be the one who first sees and apprehends the thing.

II. Occupation of treasure. 1. Considered according to natural law, the whole treasure belongs to the finder; for he is the first occupier of a thing which belongs to no one, or at least can be treated as if it belonged to no one.

2. Considered according to civil law, see in the civil Code whose the treasure is; concerning this, however, I note:

a) Civil laws everywhere distinguish between treasure found on one's own land and on another's land. Now, under the name of another's land also comes a place which pertains to the private ownership of the State, province, or municipality; but one who finds treasure in a place which pertains to public ownership can rather probably proceed as if he had found it on his own land.

b) It is disputed whether civil law also has force with respect to treasure found on land of the Church. Some affirm, relying on can. 1529, by force of which civil contracts also have force in ecclesiastical matter; and this, considered in view of can. 20, seems to be extended also to laws about treasure, as being similar to laws about contracts. Others deny this, because the disparity seems too great; hence they judge that natural law is to be applied. But since in each case it is a matter of disposition concerning material goods, and since the reason of canon 1529 also has force for laws about treasure, the disparity seems material rather than formal.

c) Civil law, as justly determining rights, obliges from commutative justice (n. 764). Nevertheless, insofar as it attributes the whole treasure to the owner of the land when the treasure has been sought deliberately and without the consent of the owner, it is held to be merely penal, and therefore does not oblige before the sentence of a judge.

Corollary. One who buys at the common price a field in which he knows that a treasure lies hidden does not sin, because the just price is not determined according to private knowledge, but according to common estimation. If afterward he comes upon the treasure, he can retain the whole of it for himself; but this does not hold for one who buys a field after he has discovered the treasure and perhaps has buried it again.

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.

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

The Chief Kinds or Ways of Occupation.—(a) Animals.—Domestic animals (e.g., dogs, cats) may not be occupied, even though they have strayed from their owner; tamed animals (e.g., bees, pigeons, songbirds) may be occupied only when they have recovered their liberty; wild animals (e.g., birds, foxes, fishes, hares, etc., at large) may not be occupied, unless they are kept in a small enclosure from which they cannot escape.

(b) Land and Plants. These may be occupied only when they have no present owner.

(c) Treasure-trove.—This is a deposit of precious movables hidden away so long ago that it is impossible to discover the owner. According to natural law it may be occupied by the finder, but the civil law sometimes decides that the find must be divided with the owner of the place or with the government.

(d) Lost Property.—This embraces those movables which an owner has recently parted with, through accident or forgetfulness, without any intention of giving up his ownership of them, and which are now easily findable, although their owner is not known. The finder is obliged to make reasonable efforts to find the owner. If he neglects to make these efforts, proportionate to the worth of the found article, and is convinced that he might have found the owner, he is considered by some theologians to be a possessor in bad faith and bound to reserve the article for the owner or turn it over to the poor or to pious causes. Having made the effort unsuccessfully, according to natural law, he may use the article as his own. The prescriptions of civil law as to the time interval before he may begin to use the article must be observed.

(e) Abandoned Goods.—According to natural law one may occupy goods voluntarily relinquished by the owner (e.g., an old automobile left by the roadside), but the civil law sometimes awards certain classes of goods (e.g., immovables) to the State.

(f) Vacant Goods.—According to natural law the goods of one who died without heirs may be occupied; but under the civil law they usually devolve to the State, whether they be movables or immovables.

Conditions for Lawful Occupation of the Goods of Others in Extreme Need.—(a) The occupation must be necessary for securing one’s own or another’s natural right to some supreme good, such as life or what is almost the equivalent of life (e.g., freedom from cruel restraint, escape from fearful disease). A supreme good is at stake, then, when one is in extreme, quasi-extreme, or most grave need (see 1236), that is, exposed to the certain or very probable peril of losing life, limbs, liberty, sight, chastity, etc.; occupation is necessary when there is no other way (e.g., by begging) to avert the danger.

(b) The occupation must be made without detriment to the rights of others. Hence, one may not occupy more than is really necessary to escape the danger; one may not occupy at all if the owner is situated in an equal danger (e.g., one may not take the plank from a man in danger of drowning in order to save oneself); one may not retain the thing taken, if the danger has passed (e.g., one who commandeered his neighbor’s car in order to escape from a thug must return the car). The neglect to ask permission, however, does not exceed a venial sin and does not impose the duty of restitution, if there is a real reason for occupation. One may not take the goods without permission, if this can be obtained without too much difficulty; nor forcibly, if possession can be had peaceably.

Do the aforesaid touches differ in species from the consummated act of pollution and intercourse, and from other incomplete acts? R. To the 1st: Affirmatively; and this response holds both for touches and for other incomplete acts, about which the discussion has hitherto been. The reason is that an inchoate act differs in nature from a consummated act. Therefore when similar acts precede the venereal act completed in the same passion, or accompany it, or immediately follow it, such as kisses, touches, etc., they constitute with the completed venereal act one sin in number, and they are not necessarily to be explained distinctly in sacramental Confession; but when they are exercised without a completed venereal act, they are a sin distinct from this, yet one or several in number, if they are exercised in the same movement of passion, or in several. Hence in such a case they are a certain incomplete lust, and are to be explained in sacramental Confession.

R. To the 2nd: The first and more common opinion affirms. The reason is that these acts, considered in themselves, proceed from distinct and diverse faculties, and are ordered to distinct and diverse objects. Hence it follows that "the desire of looking basely, touching, kissing, fornicating, are distinguished in species not only from morose pleasure concerning those objects, but also each from the other, because they tend to those objects as they would be placed on the part of reality; but if they were placed on the part of reality, they would be distinguished in species, as is clear. Hence he who once was delighted by thought about intercourse, and once desired intercourse, does not satisfy by saying, twice I had a base thought, but he must say, once I was delighted in intercourse, and once I desired it. Similarly, he who once desired to look, once to kiss, once to touch, once to fornicate, does not satisfy by saying, four times I desired to do something base, but he is bound to express those objects." La-Croix l. 6, p. 2, n. 1032. The second opinion denies. The reason is that although acts of this sort physically proceed from faculties really distinct and diverse, and tend to objects really distinct and diverse, nevertheless, morally considered, they do not contain grave intrinsic malice; but the grave malice which they contain they have from venereal pleasure, to which they proximately dispose, and which is the same in species for all these acts. S. Th. 2. 2, q. 154, a. 4. Hence it follows that, once in Confession the venereal pleasure which followed, to which someone consented, has been explained, it is not necessary to explain whether he procured it for himself by looking at or touching himself, or even by looking at or touching another person, abstraction nevertheless being made from the sin of cooperation and scandal, certainly to be explained if they were present. Likewise, once the interior pleasure of the will, or desire as regards venereal pleasure, has been explained, it is not to be explained whether that pleasure and desire of the will was immediately terminated to base looks or touches. Billuart, Diss. 6, art. 15, section III, Note and following, has these things: "Franc. Henno teaches that pleasures concerning look, touch, kiss, etc., differ in species among themselves, and ought thus distinctly to be accused... because, he says, looks, touches, kisses, are distinguished in species among themselves... but nevertheless he admits that the practice of confessors and penitents is contrary. Besides, I think that his foundation is false, namely that touches, kisses, looks are distinguished in species in the genus of lust. For since they are not evil per se, as has been said, but only by reason of commotion, or pollution, or intercourse, to which they excite and tend, they have the same species of malice among themselves, namely either of carnal commotion, or pollution, or intercourse, etc. Hence in my judgment the penitent would satisfy who would say, so many times I excited in myself or in another carnal commotion, or pollution, while saying nothing whether by touches, or looks, or kisses, provided that he explains the conditions of himself and the accomplice. A fortiori he would satisfy by saying, so many times I was carnally delighted concerning such or such a person, without explaining whether concerning touches, or kisses, or looks; but indeed if there was pleasure concerning intercourse or pollution, because these differ in species from immodesty and are to be distinctly accused, so too are the pleasures concerning them." S. Th. 2. 2, q. 154, a. 4 ad 3, speaking of kisses and touches, says: "That things of this sort are not sins according to their species." And ib. ad 2 he says: "From lust they have the nature of sin." And in c.: "Things of this sort, insofar as they are lustful, are mortal sins."

783bis. Note: An act exciting simple venereal pleasure differs in species from an act of pollution; and therefore in confession the nature of the act is, per se, to be explained distinctly. "Nevertheless, as Genicot notes here, ed. 4, vol. 1, n. 396, 3, that distinction often is not accused by the penitent; nor are questions about most shameful matters to be made by the confessor without true necessity. It is lawful to follow the rule set down by Bouvier, Diss. in 6 Dec. praec. p. 76: 'Once touches or lustful motions have been discreetly known, let the confessor abstain from immodest interrogations.' And Berardi writes, Prax. conf. n. 851: 'When the penitent says, I touched myself, if it is evident that he truly touched himself maliciously, it is to be presumed that he carried the act through to its natural end; hence, whether the matter concerns men or women, I would say that interrogations about that matter can be omitted. It is true that some interrupt the act, although they have maliciously begun it, but from this confessors cannot be obligated to add further interrogations to all and each who confess that they touched themselves, concerning this very interruption.'"

What is occupation? 1. Occupation is: the real apprehension of a corporeal thing with the intention of having it as one's own. Apprehension, namely, in that way which the thing permits and usage bears, for example by hand, feet, snare, net, inflicted wound; and not only by sight or view. Corporeal, for incorporeal things, such as rights, cannot be apprehended corporally.

2. It is a legitimate mode of acquiring ownership, provided that: 1. The thing is capable of private ownership and is no one's; or if it belongs to someone, the owner willingly yields his right, for instance by contract; or if he is unwilling, he is legitimately despoiled of his right, for instance by military occupation. 2. The occupier wills to make the thing his own when in fact he apprehends it. 3. That the thing has not already been occupied, as it were, by some law which has reserved it to a certain owner, for example to the state.

The reason is that man is master of things in first act from the very nature of external things and from divine institution. But in second act he does not become master of things except by some fact; and the most original fact of all is occupation. It is impossible to assign another. Hence all men and all laws hold this fact of occupation as a legitimate title of ownership. Occupation of this kind by man contains in itself industry and labor, which naturally bears fruit for the industrious and laborious man himself. A thing bears fruit for its owner.

3. The species of occupation are: finding, hunting, fishing, concerning which something particular must soon be said. C. I. 711, 758; C. H. 610, 956; C. G. 539, 713, 714, 768; C. A. 382, 760; C. B. 958; C. He. 658, 659; L. 493; S. Th. 2. 2. q. 66. a. 5 ad 2.

What is finding? - To find and to acquire by finding is not only to see the thing, but also physically or morally, as the thing requires, to apprehend it. Things found are of three kinds. Some are those which have never been under the ownership of any man, and are called things belonging to no one, such as a gem found on the shore of the sea. Others are those which were under the ownership of man, but in fact lack an owner; either because the owner cast them away with the intention of possessing them no longer, and they are called abandoned goods; or because the owner dies without a testament and without heirs, and they are called vacant goods; or because the owner, who hid or deposited money or other precious things, has been dead for a long time, so that no memory of them any longer existed, and they are called treasures. Finally others are those which have an actual owner, but he is unknown, because they were lost by him, he not knowing with whom or where they may be found, and they are called things recently lost.

What about a thing belonging to no one? - Things belonging to no one, which have never had an owner, become the finder's. It is proved 1. from the common opinion of theologians. 2. From positive law itself. 3. Because that which belongs to no one, by the fact of occupation, legitimately becomes one's own. Meanwhile, however, as to the right of digging for metals, etc., particular laws of places must be attended to. For although the things belong to no one, nevertheless in order that they be occupied the rights of others can easily be harmed. Things belonging to no one, namely, per se; for by law the ownership of the soil carries with it the ownership of those things which are under it and above it. C. I. 440; C. G. 552; C. H. 350; C. B. 905; C. He. 667, 718; C. L. 465 ff., 2288, 2321 ff. - C. I. 711; C. H. 610; C. A. 317, 382; Inst. 1. 2. t. 1. § 18; S. Th. 2. 2. q. 66. a. 5 ad 2.

What about an abandoned and vacant thing? - By natural law, abandoned and vacant goods become those of the first occupier. The reason is that they no longer have any owner; therefore they yield to the first occupier, no differently than those things which have never had an owner. But by positive law they are commonly assigned to the state. C. G. 713, 768; C. I. 425, 758; C. A. 760; C. B. 928. Nevertheless this seems, from custom, to have to be restricted to immovables alone, at least before the sentence of a judge. Thus it is expressly drawn from C. A. 386, 387, 388; C. B. 928, 958, 959; C. He. 664, 718; C. L. 411. - Inst. 1. 2. t. 1. § 47; Carrière 285, 343; S. Th. l. c.

What about treasure? Treasure, from C. I. 714; C. G. 716; C. H. 352, is any precious movable object which has been hidden by the hand of man or deposited under the earth, and therefore lies hidden there, whose owner no one can prove himself to be, whether the deposit is old or recent; but from C. A. 398 and from C. B. 984, it is an old deposit. Cf. C. L. 442 ff. By the hand of man, thus indeed L. un. C. de Thesauris: Treasure, that is, movable things hidden by unknown owners in a more ancient time. As to the various modern Codes, it is not sufficiently clear whether the thing must have been deposited by the hand of man; or whether by some other cause also it is held as treasure, and not as a thing belonging to no one, so that it simply becomes that of the first occupier.

Treasure, wherever it is found, by the law of nature belongs wholly to the finder. The reason is that treasure is reckoned among abandoned goods, and is not part of the land, or a fruit of the land. But to find treasure is not to apprehend it by hand, but first to see it, and to perceive, uncover, or know that it is treasure, and to apprehend it. L. 602; S. Th. 2. 2. q. 66. a. 5 ad 2. Treasure belongs, from C. I. 714; C. G. 716; C. H. 351, to the owner of the land. From C. A. 399, a third part is owed to the treasury. If someone by chance finds treasure in another's land, whether rural or urban, the treasure is to be divided by halves between the finder and the owner of the land.

If someone purposely sought treasure in another's land, the owner being unaware, by force of law the whole treasure belongs to the owner of the land. To the owner of the land, whether the owner is a private man, or the treasury, or a city, or a church. But if it is found in a place destined for public uses, as in a public road, square, or market-place, even if intentionally sought, by the common opinion it belongs wholly to the finder. C. I. 714; C. G. 716; C. H. 351. To the owner of the land, for it does not yield to the usufructuary, C. I. 494; C. G. 598; C. H. 471; C. B. 1040; C. L. 2216. But treasure found in emphyteutic land, from C. I. 1561; C. H. 1632, yields not to the direct owner, but to the useful owner; from C. A. 399, it yields to both.

From C. He. 723, treasure belongs to the owner of the thing in which it is found. The finder has a right only to equitable compensation, never, however, beyond half the value of the treasure. From C. B. 984, treasure belongs by half to the finder, in whatever way it is found, even purposely, and by the other half to the owner of the thing in which it was hidden. - L. 602; S. Th. 2. 2. q. 66. a. 5 ad 2; Lugo d. 6. nn. 114, 117; Inst. 1. 2. t. 1. § 39; C. A. 399-401. Ownership of treasure by force of law is acquired immediately by the owner of the land and by the finder. But the law which extorts half the part from the finder, when he purposely seeks treasure in another's land, seems penal. L. 602; Lugo d. 6. n. 131; Gur.

Cas. 526; C. A. 400; C. I. 714; C. G. 716; Gousset, Cod. Comm. in this article; C. H. 351, 614. Someone can buy an estate at the common price, although he knows certainly that a treasure has been hidden there. The reason is that neither is the treasure a fruit of the land, on account of which he ought to pay a greater price for the land; nor does the certainty of the thing which he has bring any injury to the seller. For since that treasure has not yet been found by the owner of the land, it is not yet his, but the thing continues to belong to no one. Therefore the fact that the buyer certainly knows that treasure is hidden in that land, while buying the field at the common price, injures no right of the seller. Lugo d. 6. n. 126; S. Th. 2. 2. q. 66. a. 5 ad 2.

What about a lost thing? - Concerning a thing lost by someone, if someone takes a thing found by chance, he must take it with the intention of restoring it and of asking about the owner; and to this he is bound from quasi-contract. The reason is that the finder in this way freely receives another's thing into his custody; and therefore he is considered to bind himself by quasi-contract to restoring it, and consequently to asking about the owner of the thing. Moreover, the owner of the thing ordinarily wills that the lost thing be the finder's after the latter cannot discover the owner; and therefore, on account of this favor, he is considered to bind the finder by quasi-contract to the burden of asking. Hence if the finder culpably neglects to inquire after the owner, those goods are due from delict. Add that, as often happens, when the finder apprehends the thing, he is the cause why the owner, commonly remembering the place in which he lost it, seeks the same thing in vain in that place. Lugo d. 6. n. 132; Struggl l. c. III; L. 603. D'Annibale, ed. 4. p. 2. n. 132, thinks that the finder "must seek the owner, but not from justice, unless he himself, by taking it away, made it so that the owner could find it with more difficulty. But to hide it is almost theft." But if he takes it away, and does not inquire, how will the owner find his thing? And if he takes it away and does not inquire, does he not hide it?

The finder in bad faith, who has hidden the lost thing and neglected to search for the owner at the due time, is bound in conscience to distribute the found thing to the poor, or to apply it to pious causes, even if afterward he cannot discover the owner of the found thing. The reason for this is: 1. because by the very fact that someone hides a thing lost by another, or neglects to search out the owner, he sins against justice by detaining another's thing. Therefore no less than a thief, from unjust detention, he is bound to restitution. Since then he can no longer discover the owner, he is bound to distribute it to the poor, or apply it to pious causes. 2. Because it cannot prudently be presumed that the owner of the lost thing wills that such a finder have an advantage from his own delict; but rather that, after he has neglected due inquiry, he have the burden of expending the found thing in alms or other pious causes, so that the owner may at least receive a spiritual advantage. S. Th. 2. 2. q. 62. a. 5 ad 3; L. 603; Struggl l. c. XIV. The finder who has employed due diligence in inquiring after the owner, and could not discover him, more probably can licitly retain the lost thing, without an obligation of justice of giving anything to the poor, or of expending it on other pious causes. The reason for this is that the owner of the lost thing is prudently presumed to will that the thing found, after diligent and sufficient search for him has been employed, be the finder's. Therefore, by reason of the title of finding, and of the similar will of the owner prudently presumed, the finder can prudently and licitly appropriate the found thing to himself. The consequence is clear, because, with these things supposed, nothing prevents the finder from being able to appropriate the thing to himself. The antecedent is proved: 1. The owner of the lost thing wills the finder to be bound to inquire diligently and sufficiently who the owner of the lost thing may be. Therefore by this very fact he is prudently presumed to will that the finder, after he could not discover the owner, be able to appropriate the lost thing to himself as a reward of his industry, because no one is presumed to will to oblige another to burdens without remuneration, especially if this can be done without his own damage. 2. The owner of the lost thing is prudently presumed to will that the lost thing be preserved in that way by which he can recover the same more easily and more securely. Therefore. The major is clear; for owners of lost things ordinarily have such an intention. The minor is also established, because the thing is more easily recovered from one finder than from many poor persons or from pious causes. Cf. 893. Struggl l. c.; Lugo d. 6. n. 100 ff.; L. 603; S. Th. 2. 2. q. 66. a. 5 ad 2; C. I. 715; C. G. 2279; C. H. 615; C. A. 388.

1. City P., during a war, was pressed by siege and was harassed by the throwing of fire-bearing balls. Hence the palace of a certain rich man, the flames immediately increasing immensely, was set on fire. All the servants, altogether despairing of extinguishing the fire, fled away. Chrysophorus then secretly entered the house, and there carried off a little chest full of gold, and at once escaped, rejoicing over his happy lot. Moreover, he keeps the aforesaid money without any scruple, as the fruit of his extraordinary and audacious industry.

2. Fortunatus, after a city had been captured and sacked by enemies, bought from some soldier certain precious garments at an altogether trifling price. Then, examining these garments, he found in one of them various banknotes sewn in, each of which is of the value of 10,000 lire. Attributing this to divine providence, he keeps this whole sum for himself.

Q. 1. What is occupation? 2. What as to the cases?

R. To the first. Cf. I. M. 882 seqq. - To the second. Chrysophorus in the first case cannot keep the thing for himself. The reason is that that little chest full of gold belonged to the owner of the house, as the house itself belonged to him. Wherefore, just as, if the house itself had been preserved entire by the extraordinary and audacious industry of Chrysophorus extinguishing the fire, it would not have ceased to belong to its own owner, so also the little chest of gold, snatched from the fire, continues to belong to the former owner, and must be restored to him. La-Croix, l. 3, p. 2, n. 112; Elbel 172; I. M. 888.

Fortunatus is not held to return to the soldier the banknotes found in the garments. The reason is that, although that soldier in a just war and justly had occupied those garments and acquired dominion of them, nevertheless those banknotes, lying hidden in the garments beyond all his opinion, he neither occupied, nor consequently acquired dominion of them. But if the owner of the garments and of those banknotes can be known, to him indeed those banknotes are to be restored, since he did not cast aside the intention of possessing his own thing and of retaining its dominion. But if the owner can no longer be known, then he can keep the aforesaid banknotes for himself. Elbel ib.; I. M. 883; G. 510, 511.

3. Ambrosius has a garden open on every side. Hence the hens of Augustinus, the neighboring owner, freely enter his garden and devastate it. To prevent so great a loss to himself, Ambrosius kills the hens of Augustinus at night. Did Ambrosius act rightly?

R. Negatively. For hens are not wild animals, but tame and domestic. Nor is there present in the case a sufficient reason for preventing loss to himself. For he can easily remove this by closing his own garden, or by warning Augustinus that the hens not go out from his field and enter the neighboring garden; and, if he acts otherwise, by seeking reparation of the damage. Hence they also commonly say that it is not licit to kill another's doves, if they do not bring grave damage to one's own field, or can easily be driven away, for example, by setting up scarecrows, or by warning their owner. But it is otherwise if they gravely harm the estate and the damage cannot be avoided in another way. For it is licit for each one to preserve and defend his own thing, although equal damage indirectly follows to another. But doves are not presumed to harm gravely, unless in the time of harvest or of sowings.

4. Iacobus, a building craftsman, while working in a certain old house which had several times been sold by its owners and inhabited by several persons, found a huge sum of gold money of the seventeenth century, hidden between two neighboring walls, which appeared to be one wall. He hid half of this money and kept it for himself; the other half he yielded to the owner of the house.

5. Philippus, a servant, found a great quantity of money in a certain old and large chest, already placed for a long time in some room of the castle of his lord. In this room the old furnishings of the house were accustomed to be placed, and were preserved with great care in memory of the antiquity of the family. Rejoicing, Philippus took all that money to himself.

6. Blondina, a maidservant, bought fish. In gutting one of them she found an old gold coin; in another, however, she found a precious gem. Blondina keeps the gold coin and the gem for herself.

7. Praxedes, maidservant of a certain deceased priest, asked from his heirs for a certain chest which was found in his room. The heirs gladly gave it to the most faithful maidservant. Observing the chest, the maidservant notices that it contains a certain secret part, which she herself opens not without difficulty, and in it she finds 30,000 lire. It is unknown whether the priest knew of the thing; it is known only that he received a certain inheritance from a certain deceased blood relative of his.

Q. 1. What is treasure? 2. What as to the various cases?

R. To the first. Cf. I. M. 889. - To the second. 1. The money found by Iacobus has the true character of treasure. For, considering the circumstances of the case, there are no traces that that money belongs to such a person or family; nor is it morally possible to know this. Wherefore he acts rightly by keeping half for himself and yielding the other half to the owner. G. 523.

2. But the money found by Philippus does not seem to have the character of treasure. For from all the circumstances of the case it appears that that money had been deposited there by some person of that family, which always inhabited the castle; and therefore, although given over to oblivion, it is established that it belongs to the heir and his family. Otherwise, rich castellans of this sort, who often are ignorant of those things which they possess and which they receive by inheritance, would have to be despoiled of their own goods by their ministers and administrators.

3. As regards Blondina, some wish the whole to be adjudicated to the master of the maidservant, for the fish and whatever was in it was bought at his expense and for him; others, however, wish it to be divided between the master and the maidservant, just as treasure is divided, since that gold coin and that gem are not part of the fish, so that account of them could have been had in the purchase of the fish. Del Vecchio 36. But the whole seems to have to be adjudicated to Blondina herself. For first, nothing is owed to the fisherman, who, since he was ignorant that the gold coin and gem were hidden in those fish, did not occupy them nor make them his own. But nothing is owed to the owner of the fish, because the gold coin and gem enclosed in the fish do not have the character of treasure; for its definition is not verified in the case. Therefore Blondina can keep the whole for herself by title of simple finding and occupation of a thing which belongs to no one. I. M. 889, 931, 932, 933.

4. Praxedes must restore that whole sum to the heirs of the aforesaid priest, and she has no right to it. For first, that found sum is not a treasure. For it is essential to treasure that no one can prove the thing to be his own. But now the money contained in that chest, in order that it remain there so hidden, could not have been other than paper money, and therefore of altogether very recent time. Therefore that money was either placed there by the priest himself, who afterward wished the chest itself to be preserved in the room of the most faithful maidservant, or certainly it was placed there by that deceased blood relative of his, from whom perhaps he received this chest with other things. In either case the chest and the money contained in it belonged to the priest, and now it belongs to his heirs. Besides, that money is not a lost thing; for it never was in danger, but always was and is in a safe place, nor is the owner unknown. Hence it is that neither can the maidservant keep that money for herself, nor does she have a right to the reward constituted by law, which from C. I. 718 is the twentieth part of the sum, when this exceeds 2,000 lire. Nor, finally, is it management of affairs. For to find a sum of money by chance and to restore it to its owner constitutes no management of affairs. Wherefore the maidservant from a certain equity deserves only some reward for her outstanding fidelity in the case, by restoring that whole sum to the heirs. But this reward can well be practically defined, having before one's eyes the reward constituted by the law itself for things lost and found.

569. • Occupation is the real apprehension of a thing which belongs to no one, with the intention of acquiring it for oneself. It is a legitimate mode of acquiring dominion, provided the required conditions are present, namely: 1. that the thing be capable of private dominion and belong to no one; 2. that the one occupying wishes to make the thing his own when he apprehends it in fact; 3. that no law stands in the way of occupation ¹.

¹ Yet if a wild animal has been caught by a snare which someone placed against the will of the owner of the estate, the owner seems able to take possession of the prey; the reason is that just as he has the right that you not enter to place the snare, so also that you not enter even to take out the wild animal. Therefore he himself could release the wild animal; but plainly he can occupy it when it is to be released. Therefore.

The more frequent cases in practice regard the occupation of animals; therefore there will be speech of this alone. But animals are distinguished as of three kinds, namely wild, tame, and tamed. 1. Wild or savage animals are those which enjoy natural liberty and are subject to the dominion of no one, such as hares, deer, fish, birds, etc. 2. Tame or domestic animals are those which do not enjoy natural liberty and which are subject to the dominion of men, such as sheep, horses, hens ², etc. 3. Tamed animals are those which are indeed born for natural liberty, but are deprived of this by man's industry and are subjected to his dominion, such as birds which become tame by art and industry, doves, bees, etc. ³.

² The diversity between wild and tame is more aptly sought from the disposition which enjoys or shrinks from human association. For otherwise even wild animals are found which do not enjoy liberty, and tame animals which do not have an owner.

³ A fourth class is constituted by animals become wild, which either have cast off their connatural tame disposition, or have resumed their former wild one after they had been tamed.

570. • Principles. I. Wild or savage animals ⁴ become the property of the first occupant. For things which belong to no one are lawfully occupied by natural right, and therefore become the property of the first occupant, at least unless some positive law prohibits this. But once reduced into the dominion of someone, they remain under dominion so long as they are retained by custody, and have not recovered natural liberty. But they are judged to have recovered liberty when they have so escaped custody that their pursuit is difficult; and then they so cease to be under dominion that they can become the property of another occupant, as if they had never had an owner.

⁴ Reiffenstuel (Theol. Moral., tr. 7, dist. 5, q. 1, n. 5) better expresses this third condition, which a few add, thus: "Unless by some human law their dominion is applied to some other." You have an example of this (with the Author, n. 576, III) in goods which are called vacant. For their occupation is customarily reserved by positive right to the public treasury. I said that this condition is better expressed thus; for even according to what the Author says shortly (n. 571), mere prohibition of law does not impede dominion from being acquired through occupation.

II. Animals wild by their own nature, but tamed, remain the property of the prior owner, so long as they have not evaded his custody or lost the habit of returning; for animals of this sort belong to the possessor both by reason of occupation and also by reason of education and detention. Thus, moreover, all laws establish. - But if they have evaded the custody of the owner, or have lost the habit of returning, they become the property of another first occupant, because they have recovered their first nature. Thus Roman and French Law.

III. Tame or domestic animals remain the property of the prior owner, however much they wander; hence they cannot be occupied by another. The reason is that domestic animals can never be said to have recovered their liberty, since by their nature they are judged to have no liberty. Therefore as to these there can never be place for occupation.

571. • Questions. Q. 1. Whether and how does he sin who hunts or fishes against the prohibition of law?

Resp. The first probable opinion denies that he sins against justice ⁵, or even against obedience; because from custom and from the common estimation of men that law seems altogether penal ⁶. - Thus Roncaglia, tract. 13, c. 5. - St. Lig., De Leg., n. 145, etc.

⁵ This man does not sin against justice, and, as Lugo says (De Iust., disp. 6, n. 65), the common opinion of the Doctors is that a hunter acquires dominion of the wild animals or fish which he takes. The reason is that those wild animals are still in the goods of no one and remain in their liberty; and therefore they become the property of the first occupant.

⁶ Here, as is clear, the speech is not about canonical laws which interdict certain hunts to clerics.

The second opinion, likewise probable, holds that he sins only venially against obedience, but in no way against justice. For 1. he sins against obedience, because one must always obey the Prince commanding from a just cause. 2. He does not sin against justice, because the laws, although they prohibit hunting, nevertheless do not declare the acquisition of the prey invalid. 3. He sins only venially per se, because generally such violation of law does not seem gravely harmful either to the Republic, which does not suffer great detriment from it, or to private persons in whose estate the hunting is done. - Lugo, disp. 6, n. 64. - Bouvier, De Iust., c. 2. - Carrière, n. 301. - Lyonnet, etc.

There is also a third opinion of a few, who say that one hunting when law forbids sins gravely both against obedience and against justice ⁷; but it is commonly held as less probable.

⁷ These authors judged that justice is injured not on account of the prey captured, but on account of the injury inflicted on him who has so great a right of keeping anyone from entrance into the place that he can even impede them by force. Nor do they suppose a mere prohibiting law, but besides this an exclusive right of hunting or fishing made to someone. Moreover, according to the same authors, that violation of justice brings on no obligation of restoring unless by another reason some damage has been inflicted.

572. • Q. 2. Whether he sins against commutative justice who hunts or fishes on another's estate without his permission?

Resp. 1. Negatively, if that estate is passable; for no sin is committed unless from this some other damage comes; the reason is that wild animals are by no means to be held as fruits of the estate.

Resp. 2. Affirmatively, if the estate is entirely enclosed, so that the wild animals cannot go out from it and can easily be caught there; because these are then judged to have lost their liberty and to belong to the owner of the estate. - Lugo, disp. 6, n. 72.

Q. 3. Whether the owner of the estate can take prey killed by another, or impede it from being taken by him?

Resp. Negatively to both; because although the owner has the right of preventing another from hunting on his estate, nevertheless a killed wild animal belongs to the killer ⁸. Yet the owner has a right to compensation for the damage which perhaps the hunter has brought in. - Lugo, n. 70.

⁸ Understand those which enjoy natural liberty, as the Author said. But they are judged to enjoy this when they can wander at will, as deer in the forests, fish in the sea, etc.

573. • Q. 4. Whose is a wild animal wounded or caught by a snare?

Resp. to the first: It belongs to the one wounding, if he has wounded it enough for taking it, and is morally certain that he will easily apprehend it; for thus he has already morally apprehended it. - St. Lig., Hom. apost., n. 71. - Lugo.

Resp. to the second: It belongs to him who placed the snare, if it has been so caught by the snare that it will not escape; the reason is that it is sufficiently occupied through the instrument itself. - St. Lig., n. 604.

Q. 5. Whether someone can kill another's doves harming his field?

Resp. 1. Negatively, if they do not cause grave damage, or if they can easily be driven away. - Thus commonly.

Resp. 2. Affirmatively, according to the common opinion, if they gravely harm; because it is lawful for everyone to preserve his own thing, even if from this there indirectly follows to another a damage equal to that which he directly wishes to avert from himself. But doves are not presumed to harm gravely except in the time of harvest or seeds. - Lugo. - Billuart. - Elbel.

Q. 6. If someone extracts another's sheep from the mouth of a wolf, can he make it his own?

Resp. Negatively, because the sheep even in the mouth of the wolf "cries to its owner," that is, it continues to be in the dominion of the same, even if certainly to be lost unless it is saved by another. The same must be said of him who extracts any thing whatever from a burning house, even if it would certainly perish there. Yet if he had suffered some damage, he could exact compensation for this, unless the damage exceeds the value of the thing.

574. • Resolutions. 1. A swarm of bees which has flown out from your hive is yours so long as it remains in your sight, and its pursuit has not become difficult for you. Otherwise it becomes the property of the first occupant. Under French Law it belongs to the owner of the estate in which it has settled.

2. Doves fleeing of their own motion, without having been attracted by fraud, become the property of him in whose dovecote they fix their seat. Otherwise, if they have been attracted by fraud, for example, by food altogether extraordinary or very choice. - Lugo, d. 6, n. 42, etc.

3. A hunter going beyond his own boundaries and going into nearby places of others does not ordinarily sin; because the neighboring proprietors know this, and themselves do the same in turn, content with the fine if they are caught. - Reuter.

4. He who bought from the Government the right of fishing in some river cannot be deprived of that right without injustice; hence he would be bound to compensate the damage inflicted who would catch or destroy so great a multitude of fish that he would notably injure the buyer's right. But otherwise, if he caught not so many fish; because the right of the lessee is not thereby rendered less valuable, nor does it rigorously touch individual fish, since these can leave the place, or are not certainly to be caught there. - See Casus, n. 510 and following.

In France the Government leases the right of fishing in navigable rivers. In the others this right belongs to the adjoining proprietors. Everywhere, however, fishing with a cast-line is lawful.

211. Conditions required for legitimate occupation. (A) Occupation is the apprehension of a thing which belongs to no one, with the intention of making it one's own. - Four conditions, therefore, are required so that occupation may be a legitimate mode of acquiring: (a) that the thing occupied belong to no one; for if it has a legitimate owner, the occupation of it, while the owner is reasonably unwilling, is furtive; (b) that the thing be truly and really apprehended: yet this apprehension can be actual or moral, according to the nature of the thing or civil laws; (c) that the one occupying have the intention of making the thing his own; for if he has another intention, e.g., of passing through such a place, or of spending the night in a house for some days, dominion is not acquired; (d) that this intention be manifested exteriorly: otherwise it can neither be known nor proved, and therefore cannot oblige others; what external signs are required will be set forth below.

² Lugo, disp. VI, n. 40-152; Molina, disp. 40-56; Lessius, lib. I, cap. 5, n. 28-67; Billuart, diss. IV, art. 2; St. Alphonsus, n. 602-605; Carriere, n. 285-360; Ball. P., n. 56-108; Lehmk., n. 906-916.

Today the right of occupation is greatly limited, since there are few things altogether belonging to no one, and generally by civil law it is determined to whom vacant goods belong.¹ Three things remain concerning which inquiry can be made: animals, treasures, things lost or abandoned.

¹ Cf. Civil Code, art. 539 and 713, Supplement, p. 47*.

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.

2. 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.

3. 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.

4. 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.

5. 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.

2. 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).

3. 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.)

4. 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.

2. 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.

3. The laws of England establish nothing special concerning these things.

4. 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.

We shall treat 1. of occupation in general; 2. of the occupation of animals; 3. of the occupation of treasure; 4. of booty to be taken in war.

40. Notion. Occupation³ in general is the apprehension of a thing which belongs to no one, with the intention of acquiring it for oneself. Therefore under the name of occupation do not come thefts or robberies, because in those cases the things do not belong to no one, but their legitimate owner exists.

All admit that occupation is a legitimate mode of acquiring dominion; for by natural law things belonging to no one become the property of the first occupant, as the common adage says, to which, after the old Roman law, our civil codes expressly consent, for example those of Germany,⁴ Switzerland,⁵ and Spain,⁶ which nevertheless ordinarily do not admit occupation of an immovable thing, for example of some field.

The conditions required so that occupation may be a legitimate title of acquiring dominion are the following:

1. that the thing truly belong to no one (i.e., be vacant or derelict) and be able to fall under private dominion; otherwise a real injury would be done either to the legitimate owner or at least to the community. Hence occupation is illegitimate, for example, if the owner of the thing is known, or if someone wishes to occupy a public road, since it cannot fall under private dominion;

2. that true and real apprehension be present; nevertheless this can be physical or moral according to the nature of the thing or positive laws. Therefore the intention or desire of having the thing does not suffice;

3. that the intention of making the thing one's own be present; whence, for example, occupation causing true dominion is not present if a rich man has thrown away a garment which another finding it wishes to return to the former owner.

Occupation chiefly has place in the occupation of animals, in the finding of treasure, and in some way also in booty to be taken during war; whence we shall treat the individual matters one by one.

³ Appropriation of ownerless things (Aneignung herrenloser Sachen).

⁴ § 958.

⁵ Art. 718.

⁶ Art. 610.

47. Preliminary Note. Since this booty to be taken pertains to well-known owners, it is acquired by occupation not properly but broadly so called. For occupation properly so called is concerned with things belonging to no one, as was said above. Nevertheless old Roman law considered the goods of enemies as things belonging to no one, which therefore could be acquired by true and properly so-called occupation. Hence it established: "Things captured in war ... become his who first obtained possession of them."²⁷ Canon law indeed adopted this doctrine, but limited it to a just war.²⁸

Just as customs have changed with regard to hunting, so similarly in present times, with regard to booty during war, much milder usages prevail than in ancient times. Hence also on this point the authority of the old doctors is not to be exaggerated. In ancient times the saying was held as an adage: "The right of war is unlimited"; and St. Thomas²⁹ wrote: "Concerning booty one must distinguish; because, if those who despoil enemies have a just war, the things which they acquire by violence in war become theirs; and this does not have the character of robbery, whence they are not held to restitution." But now, through international agreements, the right of plundering in time of war has been determined in many things (although not in all).³⁰

General Principles Of Present International Law:

1. All those things can be seized from the goods of the enemy which are necessary for waging a just war, for example weapons, food, clothing. Such exactions today are customarily called "contributions" and "requisitions."

2. Booty taken does not pertain to individual soldiers, but to the belligerent government, according to that saying: "Things acquired in war fall to the republic."

3. Outside the case of true need, individual soldiers cannot licitly take from enemies, by their own authority, either food to eat or clothing to wear.

4. Since war is not waged against individual citizens and private persons, but against the whole kingdom, the goods of private persons are inviolable, unless, however, there is urgent necessity, or those private persons illicitly attack the soldiers. Thus at least in land war; for in naval war international statutes concerning this matter have not yet been accepted by all nations.

Corollaries. 1. Soldiers who, laboring under hunger, seize food from enemies without the authority of a superior officer act illicitly indeed, but they are not obliged to restitution, because the prohibition is made rather for preventing abuses and for preserving military discipline than for establishing an obligation of justice. 2. Soldiers seizing other goods of notable value from enemies without legitimate authority are held under grave obligation to restitution, not indeed from natural law, but from international agreements; and if in some war these are not observed on both sides of the belligerents, they can no longer effect that those soldiers ought under grave obligation to restore.³¹

²⁷ L. 1, D. 41, 2.

²⁸ Cf. Ferraris, Prompta bibliotheca, s. v. bellum, art. 3.

²⁹ S. theol. 2, 2, q. 66, a. 8 ad 1.

³⁰ Among the international agreements made concerning this matter those stand out which were entered at The Hague of the Dutch on 29 July 1899 and 18 Oct. 1907. Other agreements for naval war also were made at London on 26 Feb. 1909.

³¹ We wrote more broadly concerning this matter of great moment in Linzer Theol. Quartalschrift 1918.

638. • Occupation is a voluntary and external fact by which someone apprehends, or reduces into his power, a thing belonging to no one, with the intention of having it as his own. - Hence four things are required for it: two on the part of the object, namely that the thing be: a) capable of dominion (n. 592); b) belonging to no one; two on the part of the subject, namely a) a voluntary and external fact by which the thing is apprehended; b) the intention of having the thing as his own or as the thing of him in whose name it is occupied (Mar. n. 219. 3°). A thing belongs to no one when either up to now it has been in no one's dominion, or has ceased to be in someone's dominion. Its effect is possession and dominion of the thing occupied. Hence the axiom: a thing belonging to no one becomes that of the first occupant; understand: unless, either for one forum or for each forum, there stands in the way a just law (n. 642 sq.) by which the thing is applied to another.

Occupation is either of settlements, or of animals, or of things found.

639. • "Since the whole orb of lands has been divinely given to the human race for habitation, it is licit for a more numerous people to acquire new regions in which it may pass its life. Indeed there is no one who denies that lands empty of inhabitants yield in this way to the first occupant. But also vast regions, which men few in number, and wild or barbarous, inhabit, can" by others "be occupied for their own utility and for the honor of the human race, so that men living almost after the manner of beasts may be brought over to human customs, to say nothing of the knowledge of the Gospel to be communicated, which is to be esteemed especially by worshippers of Christ."¹

640. • This occupation of settlements, by the law of nations then in force, was for Europeans the title of dominion in the territories of our Indians; but the Federated States, by the right either of war or of compacts, succeeded into that title of the Europeans, and by force of it vindicate for themselves direct dominion in those territories, with only the right of use left to the Indians, and this by that law, that the Indians can sell it to no one except the Supreme Government, which reserved to itself the right of pre-emption of it.²

But if the Supreme Government, by an unjust war, or by unjustly compelling the Indians to sale, or by iniquitous violation of compacts entered with them, were to injure their right, there would sin, as is clear of itself: 1) the Supreme Magistrate by his action; 2) deputies to Congress by their vote; 3) officials of the Government by their cooperation; 4) private persons buying from the Government or accepting lands of whose use the Indians had been unjustly deprived. - Moreover officials of the Government and private persons will be able to be excused from sin more easily, since they are not bound to inquire concerning the justice of the action of the Supreme Government.

203. Occupation is the real apprehension of a thing which belongs to no one, with the intention of making it one's own. Therefore four conditions are required so that occupation may be a legitimate mode of acquiring: two on the part of the object: a) that the thing be capable of private dominion, that is, not common (as air) nor belonging to public dominion (as the main roads); b) that the thing occupied belong to no one, whether vacant or abandoned: for if it has a legitimate owner, occupation of it, when the owner is reasonably unwilling, is unjust; and two on the part of the subject, namely, c) that by a voluntary and external act the thing be truly and really apprehended (the intention of taking is not sufficient); this apprehension, however, can be physical (concerning movable things) or moral (by manifesting the will externally), according to the nature of the thing, or custom, or the civil laws: a wild animal is occupied in one way, a wood in another, a meadow in another; d) that the one occupying have the intention of making the thing his own, and that this intention be externally manifested; otherwise it can neither be known nor proved, and therefore cannot oblige others. Therefore, in order that someone acquire dominion of a place, a house, or a garment, it is not sufficient that he have the intention of passing through the place, or spending the night in the house for a few days, or returning to the owner the garment which he takes; that apprehension may be made for stable possession, there is required a sign known to others and enduring, impressed upon the thing, as the cultivation of land, or a hedge drawn around it.

Since now there are entirely few things belonging to no one, and since for the most part it is determined by civil law whose vacant goods are, today the right of occupation is greatly limited; nevertheless there are still various occupations, of which the chief are: 1) occupation of animals by hunting, fowling, and fishing; 2) extraction of mines; 3) gathering wood and pasturing; 4) also, in some measure, seizure of booty during war.

209. II. Concerning the occupation of mines, especially of fossil coal and veins of metal, many of the Scholastics taught that by natural right they belong to the owner of the land, because they are an accessory part of the land, since it does not consist in the surface alone, but in the whole depth, indeed even to the center of the earth, and therefore the owner of the land has the power of receiving fruits from it. Nevertheless, several contradict this, as D. Soto and Lessius do for metallic veins, and today all jurists, who rather hold subterranean things as things of no one which become the property of the first occupier, at least if they are enclosed not near the surface but more deeply. And indeed he who occupies the surface does not seem by that very fact sufficiently to have apprehended the whole subterranean depth.⁴ This, when the present necessities of human industry and the conditions under which mines can perfectly serve the utility of men are considered, is understood still better.

⁴ "Veins which lie deep in the earth, so that they can be worked while the soil is untouched, in reality are not thereby occupied because you have built on the soil or have begun to cultivate a field. For you neither exercise dominion over these nor have you thought of receiving any utility of this kind also from the thing. Therefore they are things of no one, until by digging you have effected that your occupation may lie open to those veins." Thus Vermeersch, Quaestiones de Iustitia, n. 218. - To others it does not seem equitable to consider a precious thing, as a vein of gold, as an accidental part of a thing of much smaller price.

For 1) many are situated under the earth so deeply that in certain places they are distant from the surface by more than 1000 meters; and therefore where surface properties are somewhat divided, it can scarcely be discerned to what determinate part of the surface they correspond.

2. The direction and extension of those veins is so irregular and uncertain that a new difficulty arises from this in referring them to the part of the surface which corresponds to them, and the simultaneous acquisition of several veins would have to be necessary.

3. Much knowledge and great expenses are needed so that they may be acquired, of which the private owners of those parts of the surface which correspond to the veins are scarcely capable.

4. Their acquisition can greatly contribute to the public good, because today it is of very great importance for such a good that metals and fossil coal be had easily and abundantly.

5. Many dangers inhere in the acquisition of those veins, both for those acquiring and for the buildings on the surface; which demands the intervention of public authority.

If these things are kept before the eyes, no argument seems to be made from which it may be concluded with certainty, according to natural right, that the owner of those veins is either the State, or the finder, or the owner of the surface to which the veins correspond; indeed not even he who would occupy them and at the same time would have means sufficient for the best acquisition. Hence the matter seems rather to be determined by positive human law, with the public good considered.⁵ But if the opinion which holds that natural right attributes dominion to the owner of the land has pleased so many Scholastics, this proceeds from the fact that they very much had before their eyes veins which were not far distant from the surface and which could be considered almost as an integral part of the land.

⁵ This conclusion is confirmed from the history of legislation: for no constant legislation appears determining to whom dominion belongs. Only one thing appears, namely, that always and everywhere some interference in the administration of veins of metal and of coal was attributed to the State or ruler.

For the sake of example, in Belgium, the civil law which was established on April 21, 1810, May 2, 1837, and June 5, 1911, perfectly distinguishes between mines (mines; mijnen, bergstofwerk, bergwerk) - and metallic strata brought by alluvion (minieres; ertsgroef) - and quarries and combustible earths (carrieres et tourbieres; steen-, kalk-, zand-, mergelgroef, en veenderig, veengrond of turfland), which both are on the surface.

A. As to quarries and combustible earths, the law confirms the right of nature, according to which they belong to the owner of the land in whose surface they are found (a. 81-83).

B. As to metallic strata brought by alluvion, it confirms the right of the owner of the land set forth in what precedes; nevertheless, on account of the common good, it establishes certain particulars:

1. they cannot be acquired without the permission of the State (a. 57); 2) if furnaces stand around for liquefying metals, the owner of the land is held to acquire the metallic strata after he has declared the matter to the authority. But if he himself does not acquire, the directors of the furnaces can, after the owner has been warned and a month has elapsed after the warning, and after the authority has been made more certain concerning the matter, acquire the strata; if, however, crops exist on the land, the director of the furnace is held to wait until the owner of the land has gathered the crops (a. 59, 60, 61). But a fitting indemnity is acknowledged to the owner (a. 66).

C. As to mines properly so called, the law constitutes a special regime concerning dominion in veins of metal and fossil coal. In such a regime the State appears almost as tutor of the common good, lest it suffer detriment from the ignorance or cupidity of private persons; hence it itself attributes the concession of dominion for the acquisition of mines to those whom it judges more fit for this (a. 14 and 16); nevertheless the law acknowledges, as seems equitable, some right both to the finder (a. 17), and to the State (a. 33), and especially to the owner of the land (a. 171), who, other things being equal, also has preference of concession (a. 11 of the law of 1837). And indeed:

1. before the acquisition of the vein is conceded by public authority, so that the owner may be held himself the owner of the surface, he therefore enjoys the right of digging, conformably to the Civil Code, a. 552 (a. 10 and 12);

2. if he to whom the acquisition has been conceded, going beyond the limits of the concession, should come beneath someone's land, he is held to indemnify its owner;

3. a concessionary who unduly extracts beneath someone's land must refund to him the whole of what he extracted, with the expenses of acquisition deducted;

4. if beneath someone's land the concessionary extracts material which is not included in the concession, he must pay indemnity to the owner of the surface;

5. from a decree of the council of veins of metal and coal (conseil des mines) of March 17, 1848, a vein not conceded is outside commerce, in this sense, that it cannot be the object of sale or of any agreement which would separate it from the surface.

But once conceded, a new dominion is created, distinct from the surface, capable of undergoing mortgages, perpetual, transmissible, and inviolable, as other dominions are (a. 7 and 11). Yet special burdens are imposed on this dominion, for a twofold payment is owed both to the State (a. 33) and to the owner of the surface (a. 42; and a. 9 of the law of 1837): one fixed, another proportioned to the quantity of metal or coal extracted; likewise to the finder, if he did not obtain the concession of some mine, an indemnity is owed (a. 11 of the law of 1837). Likewise, damages to be repaired are those which come to the owners of the surface in buildings, fields, and industrial works from the acquisition made (a. 15 and 43-45).

210. III. Concerning gathering wood and pasturing, that is, concerning the collection of dry branches in woods and of grasses in pastures, it must be said:

1. If woods and pastures have their private owners or lessees, no one else can enjoy them, when the owner is unwilling, without injustice; nevertheless:

a) Sometimes the owner does not care about these things, for example, if in vast woods poor persons collect only dry wood, broom, thickets, and similar small green wood which is assimilated to thorns, or lead their animals to pasture those things which the owner is not going to collect nor give to his own animals as fodder. Nevertheless, let them take care lest they bring damage to green wood;⁶

⁶ They themselves must carefully take care: 1) lest they dry out green wood by cutting the roots; 2) lest they cut down small or younger trees; for from this great detriment will arise if another tree is not substituted; 3) lest they carry away little trees planted in a row, especially next to a public way; for often it is difficult to find other similar ones.

b) From custom there sometimes exists vague pasturing, that is, the right of pasturing flocks in any unenclosed estate (by water, wall, iron), after the crops or first grasses have been collected, or from a determinate time to a determinate time; then the customs of the places must be consulted, which have the force of law. Thus the Belgian Rural Code, Oct. 7, 1886, a. 23-28.

2. If woods and pastures belong to the community, and have not been leased to others, any citizen of the place can enjoy them according to the customs of places, which are also consecrated by law. Thus the Rural Code, l.c., and the Belgian Forest Code, Dec. 19, 1854, art. 82 and 84 sq.

Yet those laws are judged merely penal, except where they prohibit notable damage to be caused to the community or to a third party, as can easily happen in practice.

212. Observation. - Fr. Vermeersch well observes: from the nature of the thing, prescinding from the determination of civil law, occupation alone is not sufficient insofar as it manifests the will of having the thing, because then a public edict without occupation would better suffice, and because such a will, even most manifest, of itself does not touch the thing, and therefore does not bind it to anyone by a stable bond. Therefore true occupation is required, not merely legal occupation, by which the thing, according to its nature, is shown to be subject to someone's power or serving him for exclusively proper use.

"Nor do others more happily establish labor itself as the primordial fact. For either they understand the work by which the thing changes species: but then by what title do many things which of themselves are adapted by nature to our uses (think of fruits, animals, gold found by chance, etc.) enter private dominion? Or they are already content with that work which is contained in every occupation: and what labor then formally provides is not demonstrated. And, speaking universally, it is not doubted that each one acquires the fruit of his labor; but beyond this, from labor nothing can formally be concluded. Therefore those themselves who have labor for a title, if they are asked concerning the reason why they so judge, cannot argue except from the connection which is introduced by labor between the thing and the craftsman: so that at length they sometime formally name another cause" (o.c., n. 215). Labor, that is, is materially suitable for inducing this destination; formally it does not avail, except because it is a mode of subjecting the thing or converting it to one's own uses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few things must be said concerning each.

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

The following are not subject to prescription:

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

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

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

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

5th. Alms and burdens of Masses;

6th. An ecclesiastical benefice without title;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the new Code a distinction is made:

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

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

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

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

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

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

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

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

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

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

Nota. Animals are usually distinguished as of three kinds. Some are wild by nature, as stags, boars, hares, fish, etc. Some of these grow tame by habit and become domestic, as stags, doves, rabbits, etc. Some finally are by nature and by habit tamed and domestic, as hens, oxen, sheep, etc. This noted, I say 1° : Animals wild by nature and by habit, by the law of nations belong to the first taker : « For what before belongs to no one is conceded by natural reason to the occupier. Whatever you take is understood to be yours so long as it is held under your custody, as fish enclosed in a trap or a pond, or a wild beast caught in a snare from which it cannot extricate itself. But when it has escaped your custody and has returned to its natural liberty, it ceases to be yours and again becomes the occupier's. » Thus far Justinian, L. II Instit., tit. de rerum divis., § Ferc.

I say 2° : Animals wild by nature, but grown tame and gentle by habit, « are understood to be yours so long as they have the mind to return, or can easily be brought back ; for if they cease to have the mind to return, they also cease to be yours and become the occupier's, because they are then held to have recovered their liberty. But they seem to cease having the mind to return when they have abandoned the habit of returning. » The same, ibid., § Pavonum.

I say 3° : Animals domestic and tame by nature, « although they have fled from your sight, wherever they may be, are understood to be yours, and he who detains them with the intention of gaining them, or appropriates to himself their wool, feathers, eggs, etc., is understood to commit theft. » Id., ibid., § Gallinarum. Because, since they are domestic by nature, wherever they run about, they are not held to recover their liberty, but remain the prior lord's : so that, even if they are snatched from the jaws of a wolf, what remains must be restored to the owner.

§ II

Whether and how one sins who hunts or fishes against a just prohibition, and whether he is bound to restitution?

Note that hunting and fishing can be prohibited on three grounds : 1° By reason of the state of the person : thus it is prohibited to clerics. 2° By reason of public utility, as when it is prohibited during the months in which crops swell, or animals are gravid and giving birth, or when it is prohibited lest it be done with certain instruments by which minute and excessive numbers of animals would be caught, and thus the offspring extinguished or greatly diminished. 3° By reason of place, as that it not be done on another's land, or on public land, reserved to another.

I say 1° : A cleric sins — a fortiori a religious — who frequently devotes himself to noisy hunting ; yet he is not bound to restitution.

The first part is laid down in the chapter Episcopum, Decretals, book V, de clerico venat., tit. 24, and in the Council of Trent, session XXIV, de Reform., chap. 12.

[Item in the Fourth Lateran Council, canon 15, we read : « Hunting and fowling we forbid to all clerics ; wherefore let them not presume to keep dogs or birds. »]

The second part is also evident ; because such a prohibition, made by reason of the condition of the person and on account of the decorum and dignity of his state, does not render the acquisition of the beast unjust or invalid.

I say 2° : He who hunts, fowls, or fishes against a prohibition made by reason of public utility sins ; because he acts against a just law, as is supposed. He sins mortally or venially according to the measure of the damage inflicted ; because such a prohibition is made on account of a damage to be avoided, and he is bound to the restitution of it, because whoever causes a damage is bound to repair it. Yet he is not bound to restitution of the prey, because such a prohibition makes neither unjust nor invalid the acquisition of the beast, since, this notwithstanding, the beast still remains in its liberty, and accordingly still becomes the first taker's ; it only makes the taking illicit.

I say 3° : He who hunts, fowls, or fishes on land open to access belonging to another who has the right of hunting, or in a public place, reserved to the prince or to another by grant from him, sins as before against a just law. He sins mortally or venially according to the measure of the damage inflicted, to whose reparation accordingly he is bound ; yet not of the prey captured, on account of the reason adduced in the preceding conclusion, which presses more strongly here still, since beasts are not the fruits of the land, as trees are.

Moreover, grave damage in this and the preceding conclusion is held to be not precisely the prey captured, even if it is of grave moment, but that by which the right of hunting, or the faculty of letting such right to others, is notably diminished in the one prohibiting, as if the waters were poisoned, the beasts driven away, their offspring largely destroyed, animals of great moment frequently captured.

For by these and similar things the right of hunting which the prince or the republic has, and the faculty of letting it to others, is greatly diminished. Likewise grave damage is held to occur if crops are enormously trampled down, hedges torn away, and the like.

I said in the conclusion, « on land open to access belonging to another. » For if anyone should capture beasts in an enclosed place, or fish in a pond, he would commit theft, and would be bound to restitution of those very animals ; because, since they have lost their liberty, they are under the dominion of him who guards and encloses them — unless perchance, without fraud on the hunter's or fisher's part, they have gone out of the enclosed place or pond and recovered their natural liberty ; then indeed they are again the first taker's.

[As to the obligation of civil laws enacted concerning hunting and fishing, it seems it should be said : 1° Of these laws, some refer to external governance and the good order. They decree, v. g., at what time or with what instruments hunting or fishing is permitted. These laws, according to the common and sufficiently probable opinion, are merely penal¹. What was said of penal law was stated in the treatise de Legibus, dissertation IV, art. 4.

2° There are other laws which protect another's right, v. g., a law forbidding you to enter an enclosed field to place a snare, lest you inflict damage. These laws bind by the force of the law of nature, and are not violated without injury to commutative justice.

3° Finally there are other laws which protect the right of hunting or fishing granted exclusively to someone by contract ; and he cannot without injustice be deprived of that right, which is a certain species of occupation. He would, however, be unjustly injured if by others, v. g., so great a multitude of fish were taken in the leased river that the income which the lessor hoped from it was notably diminished.

I said, « granted by contract ; » because, if the right of hunting were a mere privilege, it would not bind others by strict justice, but only by legal justice. Then there would be no place for restitution, especially if a penalty were imposed3.

I SPEAK as to Wild Beasts, Fish, and Birds, which by the law of nations can be free, and then no restitution is to be made, if they are captured, because thus they become the first occupant's.

WHEN, however, they are fed by someone in enclosed places, so that he may take them at will, or they go and return home. These, however, if they inflict damage on others, compel to restitution. And this seems true also of Doves; yet Sylvester does not compel them, verb. restit. 2. quaest 4. nor Valencia quaest. 6. punct. 5. bringing forward a witty reason, because by fertilizing the fields with their droppings, they give back as much as they damage.

FURTHERMORE, that Dovecotes are licit is commonly asserted with Navarrus num 126. See Tannerus disp. 4. quaest. 6. num. 352. Casas disp. 6. sect. 1. But if they fly often to another's Dovecote, and rest and dwell there, dominion is transferred. Instit. de rerum divisione.

THE SAME is said of Wild Beasts fleeing away, so that you can no longer pursue them, and of Bees ex Instit. cit. §. ff. lib. 3. 4. et 5. See Tannerus num. 354.

SECOND, if Beasts, fish, or birds are captured in a place reserved by the Prince, they seem to be things to be restored. Valencia, however, presupposes quaest. 6. punct. 5. Medina quaest. 12. de rebus restit. Sotus lib. 4. de Iust. quaest. 6. art. 4. Nauar. cap. 17. num. 120. and 114. that the Prince can reserve to himself certain places for hunting for his recreation from the labors and occupations which he sustains for the public good: He proves this at length, Covarruvias relect. in Reg. peccatum, p. 2. § 8. and there follow Casas disp. 6. sect. 2. Diana p. 2. Tract. 6. resol. 18. Valerus v. peccatum, differ. 16. who also extends the same to certain magnates, with Villalob. Tom. 1. Tract. 10. diffic. 16. num. 7. Wherefore Diana says that a certain Magnate defended himself in this way. So also Tannerus num. 350.

YET with this condition, that they inflict no damage on the peoples unwilling. But if they consent truly, and spontaneously, the Prince will not be held to restitution. So Cajetan opusc. 17. qq. cap. 11. Covarruvias num. 11. Navarrus num. 110. and Valencia. Ven. Bonaventure also asserts the same. Note that hunting is forbidden to clerics, clamosa cap. 1. de cler. ven. yet if it be exercised with a few dogs, Diana concedes it p. 2. Tract. 6. resol. 19. Indeed, hunting is rarely permitted, even though it be clamorous; with Valero v. Peccatum, diff. 20. and Rebellion lib. 1. quaest. 14. num. 10. and others.

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.

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.

IV. A treasure is properly called an ancient deposit of money, of which no memory survives. This treasure belongs to the finder by the law of nature and by the common civil law. For the rest, many peculiar positive laws have decreed to whom treasures found are to be applied. Money, or other precious things, hidden for fear's sake — say of war, plague, or marauders — do not come under the name of treasure. He who finds them and does not restore them is guilty of theft. If by chance a true treasure be found in another's house or land, half the part belongs to the finder, and half to the lord. If it has been sought by industry on another's land, the whole is owed to the lord, as all commonly teach; who nevertheless add that the finder of a treasure is not bound to restitution before the judge's sentence, because the law forbidding to dig on another's land is penal. That laws of this kind oblige in conscience is to me the more probable, and consequently that the finder is bound in conscience to restitution. The lord of the ownership only is likewise lord of the land in which the treasure is found. Wherefore if a treasure be found in a road, in a square, or in any other public place whatsoever … … whether by chance or by industry, the whole belongs to the finder, unless some peculiar law stand in the way. A treasure found in a field bought belongs to the finder.

174. Thesis XVIII. Mere first occupancy is by itself a valid title to ownership.

Explanation. Occupation consists in taking possession of something that does not belong to another person, and that can be an object of ownership. This means of acquiring ownership can be employed at present to only a very limited extent, since land and nearly all movable property belong to individuals, or companies, or governments.

Proof. The principle that a man is entitled to possess what he first occupies, provided it be the property of no other person, is universally admitted as a dictate of common sense. The only thing opposed to it is the doctrine of Communism, that all goods are by nature positively common to all men. But this doctrine is absurd, for a man would be thereby made slavishly dependent upon all other men, without whose permission he could not justly appropriate anything for his personal use. The child or the man, savage or civilized, that catches a wild fowl or fish, that finds a valuable stone belonging to no one, that gathers wild fruit, will justly claim ownership as a right by priority of possession. There is no reason why this principle should apply to movable goods only and not to land as well, provided he who finds a piece of land ownerless marks it by some external sign as his property, thus indicating his intention of keeping it and of excluding all others from the possession of it.

175. In modern times occupancy of a new land is effected by some state or government, which thus becomes the first owner. Next, individuals acquire possession by complying with certain conditions determined by the civil power. In this country, lands are held in virtue of original grants made either by the United States directly, or by other governments that controlled tracts which afterward came under the jurisdiction of the United States. These latter grants were confirmed later on by the present government. Once the conditions placed by the civil power are complied with by the occupants, their rights are fixed, and both justice and the common good demand that they be kept inviolable. The Constitution of the United States provides that no private property shall be taken for public uses without just compensation. In this, the Constitution only enunciates the natural right of private owners; and therefore no amendment of the Constitution could ever confer upon the government the right freely to confiscate the land.

176. Yet a state might hold landed property in common, as was done to some extent among the Irish clans, and later on in the French Colony of Louisiana. But, as a rule, it is far more expedient to encourage private industry by allotting portions of the land to private persons, or permitting them to take possession according to certain formalities that the State will determine for the common good. Nearly all nations have, in their early history, acted on these principles; and thus the division of land by occupancy, yet with public sanction and according to public regulations, is said to have been made jure gentium. This term does not mean international law, but the law of the nations in this sense, that it is the prevalent legislation of all nations in accordance with the exigencies of natural rights.

177. The state retains two restrictions on private ownership, founded on the requirements of the common good: 1. The right of taxation, that is, the imposition of a burden proportionate to the protection bestowed, and not any tax at will; for justice requires a proportion between what is given and what is received. 2. The right of eminent domain, i. e., the right of taking private property for public uses when necessary, with compensation made to the owners.

178. Thesis XIX. A grant of unoccupied land, made by civil society to private parties, on proper conditions, founds a just claim to ownership.