Title to Property

382. Preliminary notions. 1. By a mode of acquiring ownership is understood a title or cause apt of itself to confer ownership. Five diverse modes of acquiring ownership are distinguished: occupation (invention), accession, labor, prescription, contract.

a. These modes have the force of conferring ownership either immediately from the law of nature, such as occupation (invention), accession, and labor; or from human law, such as prescription; or from the private will of men, such as contract.

Modes of acquiring ownership are distinguished into original and derived. By original modes there is acquired ownership of things which have never had ownership, or at least actually do not have it, of which sort are occupation, (natural) accession, and labor; by derived modes there is acquired ownership of things which already fall under ownership, as by prescription and contract.

2. The distinction among vacant, abandoned, and lost things must be noted. Those are called vacant which never had an owner, whether they are animate, as wild animals in forests, or inanimate, as gems in the sea. Those are called abandoned which had an owner, but actually do not have one, as treasures once hidden, and things of an owner who died without legitimate heirs. Those are called lost or uncertain which have an owner, but an unknown one, as a gold ring found in a street.

Lost things are held as abandoned: a. when the owner from certain circumstances no longer has any hope of recovering his thing; b. when the owner neglects recovery of the lost thing, even if he could recover it; c. when the thing is not of great price, so that the owner is not judged to demand its restitution.

Note. Now the individual modes of acquiring ownership must be treated. But because the treatment concerning contracts became longer, we refer that matter to its own chapter (the fourth of this book).

397. Preliminary notions. 1. This mode of acquiring ownership today merits special attention, because socialists, rejecting the other modes, call this alone legitimate: for they contend that no one has ownership except of those things which he produces by his own labor.

By the name labor is understood human industry which is apt for producing goods. It makes no difference whether it is spiritual or bodily, whether it contributes mediately or immediately to producing goods, provided it consists in the use and effort of human powers, which by their nature tend to this, that they produce goods useful either to a single man or to the community.

2. Now, although labor is not the sole nor the primary mode, nevertheless it is a legitimate mode of acquiring ownership.

a. And indeed, since man is owner of the actions both of soul and of body, he can employ them either in his own name or in the service of another. If the first, by natural right he is also owner of the fruits which he produces by his own labor. If the second, he has a right to a suitable wage for the labor and becomes owner of it.

b. Bodily labor, whether it is exercised in one's own thing or in another's thing, necessarily supposes already preexisting ownership of the matter in which the labor is performed and the new form is produced. Therefore it cannot be either the sole or the primary mode of acquiring ownership.

398. Assertions. 1. He who produces a new form in his own thing is owner of the thing and of the form produced, or of the whole new substance, since he has a right in the fruits of his own labor.

2. He who by laboring in another's thing produces a new form of itself acquires partial ownership of the changed thing: the substance is of the prior owner, but the new form, as fruit of labor, belongs to him who performed the labor.

3. Since man is owner of his own labor, he can hire it out to another. Now he who has hired his powers, whether spiritual or bodily, to another and therefore labors in the service of another does not acquire a right in the fruits of the labor, but in a just wage for the labor, the quantity of which will be determined below, where there will be speech concerning the contract of hiring.

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.

Accession is the increase of property either by natural production or by the union of one thing with another. When this takes place, legal and moral questions arise as to the owner of the increase. There are two leading maxims which settle such questions, Res fructificat domino and Accessorium sequitur principale, ‘The maxim Res fructificat domino seems to follow necessarily from the nature of property and ownership, for he who has the absolute ownership of something has a right to reap the benefit of all that it is, of all its activities, and of all that it produces. And so if the field is mine, I have a right to the grass, wood, or other commodity which it produces. If the tree is mine, I have a right to the fruit; if the mare is mine, I have a right to the foal; in the latter case the maxim Partus sequitur ventrem is also applied.

Jurists and theologians divide fruits into natural, industrial, mixed, and civil. Natural are such as grass, which grows without human labour and care; industrial are the product of industry, as a book or a new invention; mixed are partly natural, partly industrial, as a crop of wheat or potatoes; civil are such artificial fruits as rent from houses and land, interest from money lent. In all these cases the maxim may be applied, Res fructificat domino. In the case of mixed fruits, if the material belongs to the labourer the whole produce will belong to him; if the material, the field for example, belongs to someone else, then the owner of the field and the labourer whose labour aided in the production of the crop have each their right to a portion of the produce. Whether the crop be divided, or a money equivalent be paid to one or the other, is immaterial, With regard to improvements made on land or in houses, the general rule is that, Quidquid solo inaedificatur, plantatur, seritur, solo cedit. However, first of all by custom, and in modern times by statute, an outgoing tenant has a right to compensation for the improvements he has made on his holding, provided that certain conditions have been fulfilled.

When one thing is added to another, the general rule is that what is accessory becomes the property of the owner of what is principal. And so the owner of land has the property in gradual increments made to it by alluvion; an island formed in a river belongs to the owner of the bed. If a river suddenly changes its course, or the sea suddenly retires, the rule does not hold; the ownership remaining as before. If wood belonging to another has been used in a building, the property is transferred to the owner of the building, with the obligation of making compensation for the wood. Similarly a painting on another’s canvas belongs to the painter, but he must pay for the canvas. When a new form has been introduced into the material, as by baking bread, making wine or oil, the product belongs to the workman, but compensation must be made for the material. The ownership is then said to be acquired by specification, When liquids or solids belonging to different owners have been mixed, they should be separated if possible, and each owner will retain his separate property. If this is impossible, the former owners still retain their right to a proportionate part of the whole or to its value.

As the term is used here in moral theology, prescription is a title by which the ownership of property is gained or lost through adverse possession during the time and in the manner laid down by law.

In English law the term prescription is only used with reference to incorporeal hereditaments—i.e., rights and profits annexed to or issuing out of land. Of these the chief are advowsons, tithes, commons, ways, offices, dignities, franchises, pensions, watercourses, lights, annuities, and rents. Land and movables cannot be claimed by prescription. However, the Statute of Limitation, 3 & 4 William IV, c. 27, and the Real Property Limitation Act, 1874, have the same practical effect as Prescription Acts, with regard to real property, and it will be convenient to consider them here as such.

The mere possession of property belonging to another even for a lifetime would not of itself transfer the ownership to the possessor. But as it is so much easier to prove possession than ownership, and because those who have been in peaceful possession of property for a long time should not be liable to be unwarrantably disturbed, and, moreover, in order that owners of property may look after their rights, the legislature has authority to confer a right to property, in consideration of long and peaceable possession. This is what both ecclesiastical and civil laws of prescription do, and these laws avail not only in the external forum, but also in the forum of conscience.

In order that ownership of property may be transferred by prescription, certain conditions are requisite either from the nature of the case or by positive law. Theologians usually reckon five such conditions—viz.: (a) the property must be such as the law allows to be prescribed; (b) there must be good faith in him who prescribes; (c) consequently there must be some sort of title; (d) there must be possession (e) for the time required by law.

(a) As prescription depends for its validity on positive law, there can be no prescription which the law does not recognize. English law does not recognize any title to movables by prescription, as we have already seen. Ecclesiastical law acknowledges a right of prescription to both movables and immovables. Inasmuch as laymen cannot hold benefices, they cannot gain a title to them by prescription, though clerics may do so. .(b) Good faith is the second condition required for prescription, English law does not expressly require good faith, but it is certainly required in conscience. He who prescribes must not know that the property which is in his possession belongs to someone else; if he knows this, he can never become its owner by prescription. This was defined by the Fourth Council of Lateran, c. 41, and the reason is plain.¹ For as soon as anyone is conscious that he has something which belongs to another, he is bound to restore it to the owner, and the longer he keeps it against the owner’s will the more grievous sin of theft does he commit. Positive law could not by prescription transfer another’s property to one who was in bad faith, for such a law would not be for the common good, but would foster crime. The user, then, by which property is acquired by prescription must be without the consciousness of wrongdoing; in one who frees his property from a servitude by prescription, there will be good faith if he put no obstacle in the way of the other’s enjoying his right; he is not required to warn him that prescription is running against him. If during the time required for prescription a doubt about the right to the property occurs to the possessor, he must make all needful inquiries, and satisfy his conscience that at least no one else has a certain title to the property in question.

The time during which a predecessor in title held possession of the property may be reckoned together with the period during which the present possessor has held it in order to complete the time required for prescription, if possession was always held in good faith. Even if a predecessor in title was in bad faith, this will not prevent a successor from gaining a title by prescription, provided that the latter possesses the property in good faith for the full time required by law.

(c) Inasmuch as good faith is required, as we have seen, and this cannot exist without some colourable, supposed, or at least presumed title, the third condition requisite for prescription is some sort of title. The quality of the title affects the period of time required for prescription by ecclesiastical law,as we shall see; no special title is expressly required by English law.

(d) No prescription can be had without uninterrupted, open, and peaceable possession. The prescription must be nec vi, nec clam, nec precario. It is precisely the possession for the period required that furnishes the ground for the transference. of ownership by prescription. When the term is up the property is vested in the possessor, who acquires also a right to all the fruits, if any, which he has meantime reaped from the property; for what is accessory follows the principal.

(e) Different systems of law require different periods of time for prescription, and the time varies with different kinds of property.

A great change in the ecclesiastical law of prescription was made by the new Code, as is clear from Canon 1508, which is as follows: ‘‘’ The Church accepts for ecclesiastical property prescription as a mode of acquisition and of freeing one’s self from burdens as it exists in the civil legislation of each nation respectively, with the exceptions laid down in the following canons.” Canon 1509 exempts certain classes of property from prescription, Canon 1510 lays down that sacred things in the possession of private persons can be prescribed by private persons, but that sacred things which are not in the ownership of private persons can only be prescribed by a moral ecclesiastical person against another moral ecclesiastical person. In general one hundred years are required to prescribe against the Apostolic See, and thirty years are required to prescribe against other ecclesiastical moral persons, according to Canon 1511.

The term required by English law for the acquisition of rights by prescription varies according to circumstances. At common law, time immemorial was required to establish a prescriptive right, but the Prescription Act, 1832, provided that with respect to rights of common, and all other profits or benefits to be taken and enjoyed from or upon any land, where there shall have been an enjoyment of them by any person claiming right thereto without interruption for thirty years next before the commencement of any action upon the subject the prescriptive claim shall no longer be defeated by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. It is also provided that the time during which the adverse party shall have been an infant, idiot, non compos mentis, or tenant for life, or during which any action as to the claim shall have been pending and diligently prosecuted, shall be excluded in the computation of the period of thirty years. But where there has been an enjoyment for sixty years the claim is to be absolute and indefeasible.

Rights of way and other easements, or any watercourse, or the use of any water, to be enjoyed upon, over, or from any land or water, and also as to the access or use of light to and for any dwelling-house, workshop, or other building, are prescribed after twenty or at least forty years, instead of thirty and sixty respectively. An uninterrupted enjoyment of lights for twenty years constitutes an absolute and indefeasible right to them.

¹ Can. 1512.

Prescriptive rights may be extinguished by abandonment, express or implied; and after a period of twenty years’ nonuse, or sometimes even after a shorter period, abandonment will regularly be presumed. They are also extinguished by operation of law when the dominant and servient tenements come into the possession of the same owner in fee.

As we have seen, the right to-real property is by the Real Property Limitation Act, 1874, extinguished after twelve years’ adverse possession. The Limitation Acts which affect the ownership of real property differ from other Limitation Acts which concern personal property or a right of action in that the latter only bar the remedy after the lapse of the time fixed by law; they do not take away the right; the former, on the contrary, extinguish the right.

The conditions for prescription in the United States are in general the same as in England, except that as a rule a period of twenty years is necessary and sufficient to acquire both land and incorporeal hereditaments, and also to extinguish those rights. In some States squatters who have cultivated plots of land in good faith may become owners of them by prescription in a shorter space of time than twenty years.

The subject of prescription is a thorny one in English law, and it would be imprudent for a confessor not otherwise specially skilled to venture to determine questions of right by prescription. What has been said will, it is hoped, enable him to judge how far conscience may follow the law, and when a penitent should be recommended to consult a lawyer.

I. Object of the precept. On feasts of precept the following are prohibited: 1. forensic acts; 2. unless legitimate customs or particular indults provide otherwise, public market, fairs, and other public sales and purchases; 3. servile works (can. 1248).

1. Forensic acts. Judicial acts are understood (both those concerning secular causes and those concerning ecclesiastical causes), which are exercised with judicial solemnity or apparatus, such as the citation of witnesses, the request for a judicial oath, the judicial investigation of a case, the pronouncement and execution of a sentence. But it is lawful to excommunicate, to dispense; likewise to perform preparatory actions privately, for example to consult an advocate, prepare a defense, etc. - Besides, where the prohibition is not observed, those whom it concerns are commonly excused on account of avoiding harm (St. Alphonsus, III, 284).

2. Public market. Therefore, of itself it is not lawful to sell or buy in public shops, much less in the forum. Yet custom and competition permit in many places that food and drink be sold in public shops, likewise, especially in the country, clothes, shoes, etc. (St. Alphonsus, III, 286). For the rest, however, today on account of the laws in force, those who sell with open doors are less easily excused.

3. Fairs; these likewise can be permitted on account of custom; if they fall on a feast day, in many places they are anticipated or deferred; but if this is not done, many nevertheless can attend fairs, either on account of custom or on account of an excusing cause (St. Alphonsus, III, 286).

4. Other public sales. Therefore purchases and sales made privately, even before a notary, are not prohibited. Contracts of lease, exchange, etc., are equated with purchases (St. Alphonsus, III, 285). Custom here and there permits some public sales, for example of doves which in French are called pigeons-voyageurs.

5. Servile works. Works are called servile which are exercised by the powers of the body rather than of the soul, and immediately serve the utility of the body, for example rural works, such as plowing, etc.; works of the mechanical arts, such as the shoemaking art, etc. They are called servile because they were formerly done by servants. Liberal works are those which are done by the powers of the soul rather than of the body, and immediately serve the utility of the soul or its cultivation, for example to study, to read, to teach, to play the organ, etc. They are called liberal because they were chiefly exercised by free men. Common or intermediate works are called those which are exercised promiscuously by all, such as making a journey, hunting, etc. (St. Thomas, II-II, q. 122, a. 4, ad 3; St. Alphonsus, III, 272, 279).¹ Besides, note that the servility or liberality of a work depends neither on the intention of the one working, so that it makes no difference whether it is done for the sake of utility or recreation, for oneself or for another, for gain or gratuitously; nor on bodily fatigue. Hence:

a) Liberal and common works are permitted, except those about which something was said under I, 1, 2, 3, and 4. Servile works are prohibited by the Church because "they are contrary to the observance of the Sabbath, insofar as they impede man's application to divine things" (St. Thomas, cited place). From the prohibition, however, are excepted works necessary for the nourishment and arrangement of the body and the house, which cannot conveniently, or are not customarily, anticipated, such as cooking food (even food to be prepared with greater skill, such as cakes), making beds, cleaning the house or clothing (St. Alphonsus, III, 298).

b) Concerning some works it is more difficult to determine whether they are servile, or at least whether and to what extent they are lawful. Practically these things can be established.

a) It is lawful to write and transcribe (even musical notes); likewise to correct books and to exercise other light accessory labors, for example by drawing necessary lines and gluing superposed paper; likewise it is lawful to form artists' drawings (St. Alphonsus, III, 279).

b) It is lawful to paint, provided one stops at the act of painting. "The reason is that painting, although it requires a material operation, nevertheless does not seem properly able to be called a servile action; indeed, it seems rather to be called liberal. For, just as writing expresses internal concepts, so painting expresses images of things" (St. Alphonsus, III, 280). It is said, provided one stops at the act of painting; for it is unlawful to grind and mix colors, to prepare and stretch panels. Likewise it is forbidden to dye cloths or walls.

c) What has been said about the act of writing and painting is also to be applied to some similar acts. Hence it is lawful: 1. to paint with a needle, but not to sew, nor to do what is called in Dutch breien, in French tricoter, in German stricken (cf. St. Alphonsus, III, 281); 2. to arrange type (St. Alphonsus, III, 279, 282), which nevertheless by common estimation in a public workshop is held to be unlawful; 3. to exercise the photographic art, insofar as it is done without notable labor, for example to form what is called a negative image; 4. to sculpt, insofar as it is a question of the final perfection of a statue; otherwise "the sculptural art commonly, at least in the estimation of men, is numbered among the mechanical arts" (St. Alphonsus, III, 281).

d) Whether to lead draft animals, ships, and carts loaded with merchandise is lawful in itself is disputed; but the accompanying labor of loading and unloading burdens seems to be unlawful or lawful according as it is great or slight (St. Alphonsus, III, 276 ff.).

e) Hunting, fishing, and fowling are lawful, unless they are done with great apparatus and labor (St. Alphonsus, III, 283).

f) Milling, in whatever way the mill is moved, is lawful, provided the application of man is moderate. Yet in our regions custom is opposed (St. Alphonsus, III, 277).

g) Finally, various works to be performed for the convenience of some establishment seem lawful, which bring with them scarcely any bodily labor, for example microscopic examination of milk or of some other material; nevertheless by common estimation they are held to be unlawful if they are performed in the public establishment itself.

¹ This distinction of works used to rest, and still rests, partly on custom; which custom indeed has been tempered somewhat, so that, for example, works which formerly could be servile are now common. We have tried to treat the matter in such a way that every difficulty arising from different custom seems excluded.

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:

II. It is explained insofar as animals belong to no one, or become such, and therefore can be occupied. 1. Wild animals established in primitive liberty, or restored to it, belong to no one and therefore can be occupied. I said or restored to it; nevertheless they are not said to have recovered liberty immediately when they are taken away or have escaped, but it is required that they already cannot morally be recovered by the owner.

2. Tame animals have an owner, and remain in the property of the owner however much they wander, provided they are not lost; in that case the principles concerning the occupation of lost things are to be applied.

3. Animals made tame likewise have an owner, and remain in the property of the owner as long as they have not recovered primitive liberty, by which they become things belonging to no one. Hence:

a) Doves remain the owner's as long as they return to the owner's dovecote; and the same seems to be said even if they pass from one dovecote to another and no longer return. The reason is that they have not recovered primitive liberty, and therefore have not become things belonging to no one; but this is required so that they can be occupied by the owner of another dovecote. Nevertheless it must be seen whether custom perhaps permits that another's doves be enticed in certain ways and be able to be considered as one's own by the owner of another dovecote.

The doctrine set forth under a) is rather commonly denied; and, when the contrary opinion is posited, it is asked how far the owner of another dovecote can bring it about that the doves no longer return to the former dovecote. Now he cannot, without injustice, impede them by force, for example by shutting them in; for the owner has a right that no one use force against his thing. But he can arrange his own dovecote more conveniently and provide better food to his doves, permitting, though not intending, that another's doves pass into his dovecote and thus pass into his ownership.

b) A swarm of bees which has flown out from a hive remains the owner's as long as he can easily pursue and recover it, because it is not yet judged to have been restored to primitive liberty. But if he abstains from pursuing the swarm, he is judged to abandon it.

c) Deer and pheasants which the owner keeps in a wood or on an estate cannot be occupied as long as they retain their dwelling there. Understand, however, places not so vast that they rather enjoy natural liberty.

III. Mode of occupying animals belonging to no one. Wild animals established in primitive liberty are occupied: 1° if they are killed, or so wounded or entangled that morally they cannot escape (St. Alphonsus, III, 604); 2° if they are so enclosed by someone - for example by a narrow circuit or pond - that they are judged to be destitute of natural liberty. It is not enough that the wild animal be in your field, or be enclosed by fences so vast that it must be said to enjoy natural liberty, as deer in large forests or pheasants on large estates.

Question. Whether an owner, on whose land another has placed a snare without his consent, can take for himself or free the wild animal caught in that snare.

Response. Per se he cannot take it, because it belongs to the one who placed the snare; nor can he free it, because he would bring it about that another's thing became a thing belonging to no one. Yet he can keep from his land the one who placed the snare without consent; and if he does this, the wild animal can no longer be of use to the one placing the snare. With this posited, the wild animal can be released or taken by the owner of the land at will.

IV. The right of hunting and fishing. 1. A law which assigns the right of hunting and fishing to the owner of the land alone, considered according to its obvious sense, grants a strict right, so that no one can hunt or fish on another's land without the owner's permission. One who injures that right is bound to restitution, not indeed of the captured wild animal or its equivalent - since the wild animal belonged to no one and was truly occupied - but for the owner's lost hope of capturing those wild animals or fish. The same must be said of the right of fishing in rivers, which someone buys from the Government. Nevertheless, legitimate hunters and fishermen are not judged to require any other restitution beyond the legal penalty, if this penalty has been imposed on those who violate the right.

2. Laws which regulate the use of the right of hunting and fishing - for example by determining at what time or with what instruments hunting or fishing is permitted - are held to be merely penal (St. Alphonsus, III, 605, 614; I, 145).

Hunters, especially secret hunters, can sometimes sin gravely for other reasons, for example because of the danger of injuring officials, to which they expose themselves.

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.

I. Notion. Accession is the right by which we acquire whatever is united with our thing.

II. Modes of accession. Accession can occur by alluvion, by planting, sowing, and building, by commixture and confusion. It is useful to hand down certain notions.

1. Alluvion is had when, from an overflowing river, something of land accrues to someone's estate.

2. Commixture is had when solid things, and confusion when liquid things, belonging to different owners, are mixed together.

What right accrues to the owners in individual cases, you should draw from the civil laws.

I. Notion. Prescription is a mode of acquiring something, or of liberating oneself from some obligation, through a definite lapse of time and under conditions established by law.

II. Division. From the definition it is clear that prescription is twofold: acquisitive, by which someone acquires something; and liberative, by which someone is freed from an obligation. The former is also called usucapio.

III. Power of the civil State to establish prescription. The civil power, by force of eminent ownership, can for very grave reasons - in other words, when necessity or great common utility urges it - transfer rights and remove obligations (n. 764). But very grave reasons urge that, through a certain lapse of time, with certain conditions observed, in other words through prescription, rights be transferred and obligations removed. The reasons are: lest possessors be held in perpetual fear of losing their things; lest lawsuits always be able to be moved; lest debtors be compelled always to preserve receipts or testimonies of payment made; lest debts increase too much and thus create poverty for debtors (St. Alphonsus, III, 517). And this exercise of right is the more just because it does not diminish the rights of private persons. For before every event prescription favors one no more than another, since each has both fear of losing and hope of acquiring. It is, as it were, an aleatory contract which citizens can enter among themselves, and which the State imposes in the name of all. Moreover, even Canon Law generally, at least implicitly, approves prescriptions established by civil law, by the very fact that canon 1508 received "prescription, as a mode of acquiring and of liberating oneself, as it is in the civil legislation of the respective nation,... for ecclesiastical goods," with the prescription of the canons to be set forth afterward being saved.

Corollary I. Insofar as very grave reasons urge prescription upon the State, it is said to be introduced by the civil Authority, with natural law soliciting it.

Corollary II. Since prescription ultimately draws its force from positive law, it is clear that for the validity of prescription it is required that it be clothed with the conditions required by the aforesaid law.

For acquisitive prescription there are required: a prescriptible thing, possession prescribed by law, a just title, good faith, and the time established by law (St. Alphonsus, III, 504).

I. A prescriptible thing. All things are prescriptible which can be the object of private ownership, unless they are excluded by positive law, ecclesiastical or civil.

1. Which can be the object of private ownership: hence those things cannot be prescribed which pertain to public ownership, that is, which are destined for the use of the community, such as roads and a river;¹ the contrary must be said concerning those things which pertain to the private ownership of the State, province, or municipality.

2. Unless they are excluded by positive law. Which things are excluded by civil law, you will find in the respective civil Code; which by ecclesiastical law, is set forth in n. 811.

II. Possession held with the intention of ownership, continuous, and endowed with other conditions perhaps established by law. It is said:

1. Possession: that is, physical or moral detention of a thing.

2. Held with the intention of ownership, that is, held in one's own name. Those who possess a thing in another's name cannot acquire it by prescription; here belong, for example, the tenant, the depositary, the usufructuary, and others who possess a thing by a precarious title, as it is called.

3. Continuous, that is, not interrupted, for example by a lawsuit which is moved concerning the thing.

4. And with other conditions, etc.; these conditions should be drawn from the law.

III. A just title. It is said:

1. Title. Title in general is the reason on which possession is founded. Title taken universally is distinguished into title translative and non-translative of ownership. Title translative of ownership is again divided into true, colorate, putative, and legally presumed. True is that which both exists and is valid; colorate, that which exists and is invalid, either because the one transferring the thing lacks ownership of it, or because the translative act is null on account of a defect in form; putative, that which is thought to exist but does not exist; legally presumed, that which is presumed by law to exist, whether in fact it exists or does not exist. A true title, as is clear, is never required, because of itself it transfers ownership. A title non-translative of ownership is called defective, and never suffices.

2. Just, that is, a title which is recognized by law, and indeed deservedly.

IV. Good faith. 1. Good faith can be taken both theologically and juridically. What theological good faith is was explained in n. 776. Juridical good faith is that which is required by civil law, whether it coincides with theological good faith or does not coincide with it.

2. Theological good faith is always required in the forum of conscience, and it must be had throughout the whole time established for prescription. "It is necessary," so says Lateran Council IV, "that he who prescribes should in no part of the time have consciousness of another's thing."² For the rest, this is clear from the fact that as soon as good faith ceases before the time is ended, an obligation of restoring arises. Nevertheless, from the same Council (l.c.), venially bad faith does not prevent it (St. Alphonsus, III, 511).

Corollary I. One who possesses one part in bad faith and another in good faith can prescribe this other part.

Corollary II. One who possesses first in good faith, afterward in bad faith, and then again in good faith, must prescribe by this last possession.

Corollary III. One who in good faith succeeds a predecessor in bad faith can acquire or not acquire a thing by prescription according as the civil law is not opposed or is opposed.

Corollary IV. One who, after possession begun in good faith, begins to doubt whether the thing is his, and, after inquiry into the truth, continues to doubt, can without fault and therefore in good faith continue possession and, when the time is completed, prescribe. But one who before possession begun doubts whether the thing is his or belongs to a determinate other person, is bound to divide it, and therefore cannot begin prescription of the whole, though he can begin prescription of the part (St. Alphonsus, III, 504, 625). Make an exception, with sufficient probability, if with doubt he succeeds a predecessor in good faith, since the predecessor seems to transfer his whole right to the successor (St. Alphonsus, I, 37 at the end). But if someone doubts concerning the good faith of the predecessor, let him presume good faith, unless indications of bad faith are such that they ought to create the contrary presumption.

Corollary V. If someone is subject to guardianship, and therefore is civilly incapable, the good faith of the guardian seems to be required, and also to suffice. It seems to be required because the guardian, before the law which establishes prescription, acts the person of the one subject to guardianship. It suffices rather probably because the law, which indeed regards only the guardian, seems honest. Likewise and for the same reasons, if it is a question of a moral person, the good faith of those who can act the affairs of the moral person even before the law seems to be required and to suffice.

Nevertheless, in the former case the minor, and in the latter the voters, who judge the thing to belong to another, are bound, insofar as can be done, to remove the good faith of those who represent their persons.

Corollary VI. A thief who, having forgotten the theft, has possessed another's thing in good faith through the required time, cannot prescribe it, since a law which deprives someone of ownership of a thing in favor of him who took the said thing by theft seems dishonest (cf. St. Alphonsus, III, 515).

V. Established time. How much time is required for different things, draw from the respective law. Note, however:

1. A possessor can add to the time through which he himself possessed the thing the time through which a predecessor or predecessors possessed it in a manner useful for prescribing.

2. If prescription is suspended, the time which preceded the suspension is computed with the time following the suspension; but if it is interrupted, prescription must be begun anew. But when prescription is suspended, and when it is interrupted, the law establishes. Note this one thing: by force of natural law prescription is interrupted by bad faith.

¹ In these the State has rather ownership of jurisdiction than of property.

² Cap. 41.

I. Liberative prescription can be constituted in a twofold way, namely, either so that it truly extinguishes the debt itself, or so that it excludes only a judicial action against the debtor. In what way it is constituted for different debts, draw from the law and jurists of one's country.

II. For liberative prescription there are required: a suitable thing, theological good faith, and the time established by law. It is said:

1. A suitable thing; almost as was said concerning acquisitive prescription (n. 808).

2. Theological good faith; concerning this, observe:

a) Theological good faith is had: 1° when thought about the existing debt does not even enter the mind; 2° when someone judges either that the debt was not contracted or that it has been paid; 3° when without grave fault he doubts whether the debt was contracted. But if he is certain concerning the debt contracted and doubts concerning payment, he is bound to pay, according to the opinion of St. Alphonsus, which we shall embrace in its own place.

b) Theological good faith is always required, with a twofold case excepted, namely: 1° when it is a question of a debt which someone is not bound to pay unless it is demanded, such as a penal debt (St. Alphonsus, III, 513); 2° when it is a question of extinguishing a passive servitude, for example a servitude of way, and someone other than the one prescribing places an act which impedes the use of the servitude.

3. Time established by law; concerning this, consult the respective civil law. Note also that here too the things which we said concerning the suspension and interruption of acquisitive prescription have force (n. 808).

I. The Church recognizes prescription as a mode of acquiring ecclesiastical goods and of liberating oneself from a debt arising either from a disposition of ecclesiastical authority or from a contract entered concerning an ecclesiastical good (can. 1508). Nevertheless:

1. The following are not subject to prescription: 1° those things which are of divine law, whether natural or positive; 2° those things which can be obtained by apostolic privilege alone; 3° spiritual rights of which laymen are not capable, if it is a question of prescription for the advantage of laymen; 4° the certain and indubitable boundaries of ecclesiastical provinces, dioceses, parishes, apostolic vicariates, apostolic prefectures, abbeys or prelatures nullius; 5° alms and burdens of Masses; 6° an ecclesiastical benefice without title; 7° the right of visitation and obedience, so that subjects could be visited by no Prelate and would now be subject to no Prelate; 8° payment of the cathedraticum (can. 1509).

2. Sacred things which are in the ownership of an ecclesiastical moral person cannot be prescribed either by a private person or by a non-ecclesiastical moral person, but only by an ecclesiastical moral person. But sacred things which are in the ownership either of private persons or of a non-ecclesiastical moral person can also be acquired by private persons and by non-ecclesiastical moral persons, who nevertheless cannot apply them to profane uses; but if they have lost consecration or blessing, they can be freely acquired even for profane uses, though not sordid ones (can. 1510).

II. For acquisitive prescription there are required: possession, established time, and good faith; for liberative prescription: established time and good faith.

1. Possession - which it suffices to note - is the detention or enjoyment of a thing which someone has in his power by himself or through another as if it were his own (n. 775).

2. Established time. a) Immovable things, precious movable things, rights, and actions, whether personal or real, which pertain to the Apostolic See, are prescribed by a span of one hundred years; those which pertain to another ecclesiastical moral person, by a span of thirty years (can. 1511).¹ If a cleric who possesses a benefice has proved that he has been peacefully in possession of the same benefice for an entire three-year period in good faith, even perhaps with an invalid title, provided simony is absent, he obtains the benefice by legitimate prescription (can. 1446).

b) Other things are prescribed in the time determined by the civil legislator for a thing of this kind (can. 1508).

Note 1. Concerning the prescription of actions, consult canons 1702-1705, 2240.

Note 2. Interruption and suspension of prescription have place according to the norm of civil law (n. 808).

3. Good faith. No prescription has force unless it rests upon good faith, not only at the beginning of possession, but throughout the whole time of possession required for prescription (can. 1512).

¹ Concerning possession begun, but not yet completed when the Code had been issued, cf. Ius Pontificium, 1924, p. 23.

III. Titles of restitution, that is, the reasons or roots from which the obligation of restitution arises, are: 1° another's thing materially unjustly possessed; 2° another's thing formally unjustly accepted; 3° mere damaging, which takes place when someone merely injures the good of another, or unjustly impedes him from acquiring a good. A contract, whether not observed or violated, is referred according to the circumstances to one of the assigned titles (St. Alphonsus, III, 548).

V. Hunting. They should not indulge in hunting, and should never exercise noisy hunting (can. 138). Hunting - by which bird-catching is also comprehended - is distinguished as twofold, noisy and quiet. Noisy hunting is that which is done with great tumult and noise of weapons, dogs, and beaters; quiet hunting is that which is done with snares and nets, or even with a shotgun, but without the aforesaid noise. Therefore:

1. Noisy hunting is forbidden simply; but quiet hunting, if it is done moderately and without scandal, is not prohibited. Nevertheless, particular statutes or precepts should be attended to; since the Ordinary, if a just cause is present, can altogether prohibit hunting with a shotgun, though not with a censure added, unless for grave and special causes.¹

2. Noisy hunting exercised without grave scandal and not frequently is not mortal (cf. St. Alphonsus III, 606; Homo Apostolicus, tract 10, n. 72).

3. Finally note that fishing is forbidden by no canon.

¹ Cf. Sacred Congregation of the Council, Gnesen and Posen, 11 June 1921 (A. A. S. 1921, p. 498).

X. Canonical title, if it is a question of major Orders. A title of support is understood, that is, a guarantee by which provision is made for the suitable and of itself perpetual support of the ordinand. It is required, however, if it is a question of receiving major Orders (canon 974, § 1, 7°),¹ lest perhaps the ordained man be forced to provide for himself by begging or in some other way which cannot be reconciled with the dignity or offices of the state. "One ordained in sacred Orders, if he loses the title, is to provide another for himself, unless, in the judgment of the Bishop, provision has otherwise been made for his suitable support" (canon 980, § 1). "But those who, apart from an apostolic indult, knowingly ordain their own subject in sacred Orders without a canonical title or permit him to be ordained, must themselves and their successors provide the necessary sustenance to the same needy person, until provision has otherwise been made for his suitable support" (canon 980, § 2). Finally, if a Bishop has ordained someone without a canonical title with an agreement that the ordained man not ask sustenance from him, this agreement lacks all force (canon 980, § 3). With respect to the required title, observe:

1. For secular clerics the canonical title is the title of benefice, and, failing that, of patrimony or pension. This title must be both truly secure for the whole life of the ordained man and truly sufficient for his suitable support, according to the norms to be given by Ordinaries for the different necessities and circumstances of places and times (canon 979). If not even one of the titles just assigned is available, it can be supplied by the title of service of the diocese, and, in places subject to the Sacred Congregation of Propaganda Fide, by the title of mission (canon 981, § 1). Now:

a) The title of benefice is that which is founded in a benefice; but a benefice actually obtained and peacefully possessed is required. But resignation of the benefice by whose title the cleric was ordained is null unless express mention is made that the cleric had been promoted by that title and had substituted for it another legitimate title of ordination, by grant of the Ordinary (canon 1485).

b) The title of patrimony is that which is founded in patrimony. By the name of patrimony here are understood goods possessed by the ordinand and sufficiently free from mortgage or other burden. "It is indifferent whether the patrimony is constituted in stable and certain fruitful goods, or in things which are equated with immovables. Thus a lay chaplaincy can be a title of patrimony, provided those who enjoy the right of naming have pledged their good faith, with the authority of the Bishop interposed, that they will not revoke the chaplain until provision has been made for him by a suitable benefice or patrimony."²

c) The title of pension is that which is founded in a pension. By the name of pension is understood a stipend of support assigned to the ordinand and to be supplied to him annually, whether from ecclesiastical benefices or from other goods. Hence also a personal pension.³

Note. As formerly, so also now the insufficiency of one title can be supplied by another title.⁴

d) The title of service of the diocese and of mission carries with it that the ordinand, by interposing an oath, devotes himself perpetually to the service of the diocese or mission, under the authority of the local Ordinary for the time being. The Ordinary must confer on the priest whom he has promoted by the title of service of the church or mission a benefice, office, or subsidy sufficient for his suitable support (canon 981).

2. For religious, the title is established as follows:

a) For Regulars the canonical title is solemn religious profession, or the title, as it is called, of poverty (canon 982, § 1); note that solemn profession alone is a title for Regulars.

b) For religious of perpetual simple vows, whether emitted in an Order or in a religious Congregation, the title is that of the common table, of the Congregation, or another similar title, according to the norm of the constitutions (canon 982, § 2); that is, as the legitimate constitutions have established or will establish in the future.

c) Other religious, that is, religious of temporary vows, whether emitted in an Order or in a religious Congregation, and likewise novices, as regards the title of ordination, are governed by the law of seculars (canon 982, § 3). The title of the common table does not belong to these religious, because they are not yet devoted to religious life, and therefore lack the right of receiving perpetual support from the goods of the religious institute.

¹ Council of Trent, session 21, cap. 2, De reformatione.

² Gasparri, n. 606.

³ Aertnys-Damen, II, 590; cf. St. Alphonsus, VI, 817.

⁴ Cf. Benedict XIV, Quaestiones canonicae, 46.

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.

Principles on Accession.—(a) According to natural law, if the two things united are separable, then each owner should be given his own property; but if the things are inseparable and one is more valuable, the owner of the more valuable part keeps all, but compensates the owner of the less valuable part; if the things are inseparable and of equal value, there is joint ownership.

(b) According to positive law, these natural principles are applied to various cases of accession, whether it be natural (as through growth of plants or deposit of land by rivers) or artificial (as through change made in a material by labor, or addition of one substance to another). These details are treated in books on law.

Prescription.—Prescription laws (see 1798) are valid in conscience, since they are determinations about property rights made in the interest of the common welfare. But the following conditions are required for acquisition of property through prescription:

(a) the object of prescription must be a thing prescriptible according to natural and positive law. Thus, natural rights and public property may not be prescribed against;

(b) the subject of prescription must be a person capable of possessing, and he must be honestly convinced that he has a right to what he possesses;

(c) the claim of the subject to the object must rest on possession, on apparent title to the property, and on the lapse of the legal time during which possession has been held or ownership has remained undisputed.

Wills.—A will is a declaration made in legal form (i.e., with the solemnities required by law) of the disposal to be made of one’s property after one’s death. Defects in a will or legacy sometimes operate to take away the moral obligations of observing it.

(a) Thus, if the defect is one of natural law (e.g., a will made under duress), there is no moral right or obligation produced by reason of the gift.

(b) If the defect is of positive law only and makes the will rescindable (e.g., a will not subscribed, as by law required, in presence of the testator), the gift is good in conscience until adverse decision of court.

(c) If the defect is of positive law only and makes the will ipso facto invalid (e.g., a legatee acts as witness to a will), the gift is good in conscience, if there is question of pious causes, since property donated to God may not be alienated by human laws. But the Church desires civil formalities to be observed in the making of wills (Canon 1513).

(d) If the defect is positive and ipso facto invalidating, and there is question of profane causes, the will is not good in conscience, even before declaration of court.

What are the various modes of acquiring ownership? - To an exact knowledge of ownership and of the rights and obligations which derive from it, there pertains not only knowing its essence and its various species, but also the various modes by which it is acquired. - A mode of acquiring ownership is any title, or cause of itself suited to confer ownership. Now some modes arise from natural law or the law of nations, others from civil law, others from private will. The natural modes of acquiring ownership of goods of fortune can be reduced to occupation and accession. C. I. 710; C. H. 609; C. A. 317, 381, 404, 423, 424; C. G. 712, 714; Inst. 1. 2. t. 1. § 11; Gousset, Cod. Comm. in a. 712; S. Th. 2. 2. q. 57. a. 2, 3.

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.

You will resolve: A soldier can keep all movable things if he has stripped an enemy killed by himself; for this is the general custom. He also seems to be excused if he has stripped other prostrate enemies. But if he has taken things from fallen comrades, he must restore them to the known parents or heirs of the dead, insofar as this can be done and the value of the thing requires. Gur. Cas. 512; Struggl, de V. Praec. dec. art. 5. nn. 49, 50; Reiffenst. tr. 7. d. 5. q. 1. n. 4; S. Th. 2. 2. q. 66. a. 8 ad 1; C. A. 402; Inst. 1. 2. t. 1. § 17.

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.

Note: To the title of occupation can be reduced the mode by which the poor occupy dry branches of a forest, ears of grain or chestnuts after their harvest, clusters after the vintage, etc., which are held as abandoned and generally conceded by owners to the poor. The same must be said of wood which the flooding of a river has carried far elsewhere and which can no longer be recovered without expenses which far exceed the value of the thing.

From the Constitution of Benedict XIV, Ex commissio Nobis, 17 May 1751, it is prescribed that, "the harvest having been made, the gleaning be altogether freely permitted to the poor by the owners of estates, so that without any impediment they may gather ears either scattered on the ground or passed over by the reapers, and may bring them home to their families." Goods lost by shipwreck, even if on the occasion of a storm they are voluntarily thrown into the sea, are not considered abandoned, because they are not thrown away with the intention that the owner, as it were, does not wish to have them, but so that he may escape that danger of shipwreck with the ship. Inst. l. c. § 48. Nor likewise are those things held as abandoned which are freed from fire, flood, or the hands of robbers, even if otherwise they would have perished, and someone saves them not without danger to his own life. Hence all these things must be restored to their owners, with expenses made and the price of the labor and danger which he underwent being repaid to him. From C. A. 403, he who preserves another's thing from certain danger can, besides compensation for expenses, demand a proportionate reward. - Cf. C. He. 725. Abandoned goods are not those which, although they have ceased to be in our power, can still probably be recovered. But when every hope of recovering them has vanished, they cease already to be ours, and begin to belong to no one. For ownerships of things exist so that we may use things. And, because intention is required for ownership, if it is prudently judged that the owner, when he knows his thing is in danger of perishing, is no longer solicitous about it, it can be held as abandoned; for example, if the thing is of slight value, and great expenses would be necessary to recover it.

As to vacant goods, Struggl, Theol. univ. P. 2. tr. 8. d. 2. q. 2. a. 2. VII, has this: "It is sufficiently probable that one sharing in vacant goods, or their possessor, is not bound before the sentence of a judge to hand over the same goods to the treasury... I judge this a fortiori if someone had diligently served such a deceased person, or had been his friend in such a way that he would have had a prudent hope of inheritance or legacy, if that man had made a testament."

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.

Is one who finds another's thing able to leave it in the place where it is, or is he bound to collect it? He is certainly not bound from justice to collect that thing; and the reason is that by no special office and by no contract is anyone bound to collect another's found thing. - Nevertheless he is bound from charity to collect that thing for the owner, if otherwise it would perish, or the owner would no longer be able to recover it. The reason is that from charity we are bound to avert a neighbor's damage which we can easily prevent. Hence, generally speaking, if the thing found is of great price, and there is a great probability of discovering the owner, and no damage is to be feared on the part of the finder, that obligation is grave.

Does he sin who first takes another's found thing, but afterward puts it back in the same place? - He sins not only against charity, but also against justice, if there was probability of discovering the owner, by retaining the thing. The reason is that he exposes another's thing, already existing in a safe place, to the danger that it perish for the owner, just as he who throws into the fire a cloth rescued by himself from a fire. Moreover, by collecting another's thing he undertakes an obligation from justice of restoring it to the owner, if he can. Except, however, if you foresee that you will suffer damage from it; for then "you can put it back in the same place and permit another to carry it off, although by doing this you put the thing into a worse state; for then the taking by the thief comes about from his own malice, and your cooperation is only permissive of another's loss, which you are not bound to avoid with your own damage." L. 569. D'Annib. ed. 4. p. 2. n. 199 holds that this is against charity, not against justice, because there is a certain quasi-compensation of both acts. And he affirms this generally for a thing rescued from any danger and put back in the same. But this is mere caviling. The second act, once the condition of the thing exposed to danger has already been changed, and once the obligation of restoring that thing has already been undertaken, no longer compensates the first.

Can one who has found another's thing, and after sufficient diligence, the owner not having been found, has made that thing his own, nevertheless keep the thing as his own by title of prescription, when the owner becomes known after a time sufficient for prescription? - R. Affirmatively, probably. The reason can be taken from St. Alphonsus, l. 3. n. 590; for he says: "When, after all circumstances have been considered, it is no longer possible" (understand morally speaking) "that the owner be found," if the thing, after due diligence has been employed to find the owner, has been handed over to a poor person, and afterward the owner appears, the poor person is not bound to restore it, because "then the poor person acquires absolute ownership of the thing without any burden of restitution." Therefore, by parity, the same must be said of the finder himself, if, as he can, he himself keeps the thing with himself. And the reason a priori is because, as the same holy Doctor says, l. c. n. 603: "When a thing, considering the circumstances of length of time, or distance of place, or the fact that the thing can no longer be recognized by the owner as his, as happens in ordinary coins, does not seem possible to return to the owner; then it becomes the thing of no one, and therefore is acquired by the first occupier, who is not bound to give it according to the will of the prior owner, since he, through the impossibility of recovering it, has entirely lost its ownership...; because the law of nations attributes to private persons ownership of things for no other end than that they may use them; hence, when it is impossible for the thing to come to their use, it becomes, as abandoned, the thing of no one, and returns to the primeval natural law, and therefore becomes that of the first occupier without any obligation." - S. Th. 2. 2. q. 66. a. 5 ad 2.

From C. I. 715-718; C. H. 615, 616, the finder of a movable object which is not treasure must restore it to the preceding possessor; if he is ignorant of him, he must without delay hand it over to the Syndic of the place where the object was found. The Syndic makes the thing known by publication, to be repeated according to the accustomed forms on two successive Sundays. After two years have passed from the day of the second publication, without the owner appearing, the thing, or its price, if circumstances required that it be sold, belongs to the finder. But if the owner of the lost thing appears at the opportune time, he owes a reward to the finder. The same as to substance is had from C. A. 388-392, from C. B. 965-982, and from C. L. 415 ff. - The finder of a lost thing makes it his own after three years have passed, from C. A. 392, 1466; after a year from C. B. 973. If in the meantime the owner appears, he owes a reward to the finder.

From C. G. 2279, the owner of a lost thing can reclaim it within the space of three years. From C. He. 720 ff., the finder of a lost thing is bound either to notify the police, or to make due inquiries for the owner. If the owner does not appear, he acquires ownership of it only after five years have elapsed. - C. L. 419 establishes a varied space of time according to the varied value of the thing.

How are the various animals distinguished? As regards hunting and fishing, animals are of four kinds. Some are tame or domestic, which from their disposition enjoy human association, such as horses, sheep, hens, etc. Some are wild, or beasts, which from their disposition flee human association, such as wolves, deer, hares, birds, fish, etc. These sometimes exist in their natural liberty, as a deer in a forest open on every side, a fish in the sea; sometimes, with such full liberty removed, they are enclosed by some custody, as a deer in a grove surrounded by high hedges, etc. Some are tamed, and these are wild animals or beasts which are made tame by human industry, and are cared for in such a way that they have the custom of going away and returning, as doves in a dovecote, rabbits in a warren. Finally some are become wild, and these are animals which, after putting off a prior custom, either assume their former wild nature or contract it. C. B. 960.

What about tame animals? Tame or domestic animals remain those of the prior owner, however much they wander off; hence they cannot be occupied by another. The reason is that animals of this kind are subject to the ownership of a particular man, and are morally recoverable; and therefore, since the owner does not put away the intention of recovering them as his own, he always retains ownership of them. For the same reason, if someone has snatched your sheep from the jaws of a wolf, he preserves it not for himself but for you. Meanwhile, however, in this and a similar case, the one preserving another's animal can ask the price of his work at least from equity, but the price of necessary fodder even from justice. Inst. 1. 2. t. 1. § 16; C. B. 960; C. L. 404 ff.; Lugo d. 6. n. 41.

What about tamed animals? Wild animals that have been tamed, as long as they have the custom of returning, or are enclosed by certain custody, do not become those of the first occupier; but they do become so after they have lost such a custom, or after they have escaped custody. The first reason is that animals of this kind belong to the possessor both by reason of occupation and also by reason of training and detention. Moreover, all laws so establish. The second reason is that, if they have lost the custom of returning, or if they have escaped the custody of the owner, they cease to belong to the prior owner; for they have recovered their first nature and liberty. - Inst. 1. 2. t. 1. §§ 12, 15; C. B. 960; C. L. 400 ff.; C. He. 719; Lugo d. 6. n. 41.

You will resolve: When an entire swarm of bees flies away from a hive, and the owner loses probable hope of recovering it, the swarm of bees becomes that of the first occupier. From C. G., Law of 6 Oct. 1791; C. He. 725, it belongs to the owner of the land in which it settles. From C. I. 713; C. H. 612, unless the owner has pursued bees flying from his own land into another within the next two days, and likewise unless someone has vindicated for himself, within twenty days, tamed wild animals which another has caught, the former become those of the owner of the land, the latter those of the one catching and retaining them. Doves, as long as they have the custom of returning home, are not those of the first occupier; just as neither are other tamed animals. Hence it is not lawful by specially prepared food, or by other enticements, to attract another's doves to one's own dovecote. If, however, doves, rabbits, or fish have betaken themselves of their own accord into another dovecote, enclosure, or fishpond, they belong to the owners of these. C. I. 462; C. G. 564; C. H. 613. Fish in a large lake and wild animals in vast forests, even enclosed ones, become those of the first occupier; for they are left in their natural liberty. Inst. 1. 2. t. 1. §§ 14, 15; C. A. 384, 3121; C. B. 961 ff.; C. L. 400 ff.

What about wild animals? - Wild animals which lack an actual owner and enjoy natural liberty become those of the first occupier. The reason is that, as is said in Inst. 1. 2. t. 1. § 12, "that which previously belongs to no one is granted by natural reason to the occupier." Hence a wild animal wounded by one person and captured by another, if it is established that it can no longer escape the hand of the one wounding, belongs to the one wounding, not to the one capturing. The same must be said of a bird for which one person has set a snare, but another has nevertheless taken it. Inst. 1. 2. t. 1. § 13.

C. I. 711; C. H. 610; C. A. 383; C. B. 960; L. 604.

How do laws which prohibit hunting and fishing bind? - Laws which prohibit hunting and fishing at some determined time, or with some determined instruments, or without payment of the tax for the due faculty, according to the common and probable opinion, are merely penal laws; and therefore they do not oblige except to undergoing the fine and penalty, if someone is caught. The reason is that laws of this kind regard only a material and external good, and indeed one not of great moment: the due procreation and multiplication of fish or birds. L. 1. 1. n. 145.

In Germany, however, they seem preceptive from C. B. 958, which invalidates occupation of a thing legally prohibited, or when by apprehension of possession another's right is harmed; unless, namely, some other custom at least obtains as to hunting, or unless it is said that the law in the case does not really prohibit occupation of such a thing, but only in such a mode, time, etc. Laws which prohibit hunting or fishing in a closed private estate are prohibitive laws in conscience. For these laws confirm the natural law, lest anyone use another's thing against the owner's will and cause him damage. Therefore those transgressing these laws sin against commutative justice and are bound to compensation for damage. L. 604; C. I. 712; Inst. 1. 2. t. 1. § 12. Laws which prohibit hunting or fishing in some public place, by force of a contract entered, for example of lease, are prohibitive laws in conscience, by force of commutative justice.

Therefore, if someone in that place were to take so great a multitude of fish or other animals that another's right would be notably harmed, he would sin gravely against commutative justice and would be bound to compensation for damage. L. 605, 614, 617; H. A. tr. 10. n. 71; Lugo d. 6. n. 189. Laws prohibiting hunting and fishing in a determined place, from an exclusive privilege conceded to others, are likewise prohibitive in conscience; for they prohibit violation of a conceded right. But if there is a simple reservation, "Diana with Dic. etc. excuse the hunter from restitution and from grave sin, if the places are not enclosed.

Lessius also admits this, if the damage was not notable, since the wild animals are not of great price, or are not many; for then he says that the prohibition, from the common judgment, is understood as made only under venial sin. Indeed he adds that hunters can always be excused from restitution when a penalty has been enjoined, because Princes then seem to intend that alone." L. 605. Likewise, if there is a simple license, even though it is obtained only by money, others hunting or fishing without that license do not injure commutative justice; nor do they regularly injure legal justice, because the law is then commonly held as penal; and therefore one is bound only to undergo the penalty, if he is caught.

As to animals captured contrary to the aforesaid laws prohibiting hunting and fishing: if they were under the ownership of the owner of the place, or of the one having the right either from contract or from privilege of hunting or fishing, they must be restored, since someone by capturing them cannot make them his own. But if those animals were not under the aforesaid ownership; since, for example, although fish are in some large lake, or wild animals in some large enclosed forest from which they cannot go out, nevertheless they can still escape the nets of him who wishes to catch the fish, or wander and escape the hunter; then no restitution of them is to be made, since the one catching them makes them his own. Lugo d. 6. n. 72. A wild animal becomes that of the first occupier, even if it is caught on another's land.

The reason is that although the wild animal exists on another's land, and therefore passing over there is illicit, nevertheless it does not exist under another's ownership; unless the land is closed, so that the wild animals cannot go out from it and can easily be caught there; for these are then considered to have lost liberty and to belong to the owner of the land. Likewise, although the owner of a territory can appropriate to himself the right of hunting in his own territory, nevertheless he cannot appropriate a free wild animal, since he has title of property only to that territory, not to the animal. But the owner who has his own right of hunting in some territory can not only release a wild animal caught in a snare, but also take away the snare or other instrument, without being bound to its restitution, as theologians commonly teach.

The reason is that such taking away is considered by common custom as a penalty for the right of hunting having been injured. Hence, since by this title he can release the wild animal, by the same title he can also retain it for himself. Inst. 1. 2. t. 1. § 12; C. L. 384 ff. If the owner of the land from his magnificence thinks little either of the captured wild animal to be restored, or of the damage inflicted to be repaired, and is content with the fine or penalty alone, so that the wild animals may be safe, neither restitution nor reparation of damage is to be urged, even if perhaps the fine also was not paid, because the crime remained hidden. - But where damage must be repaired, an estimate is to be made according to the judgment of a prudent man, with attention to all the circumstances.

For this, if the wild animal was not under another's ownership, does not depend on the price of the captured wild animal, but on how much it mattered to the owner, or to the one having the right of fishing or hunting, that the animals not be captured, because more animals would have been captured by him or by his men, unless someone had unjustly taken them. Therefore, if that act, with attention to the multitude of wild animals, did not prevent him from capturing as many as he wished, nor caused their price to decrease, reparation of damage is not to be urged. L. 604, 605.

What is accession, and of how many kinds is it? Accession can be taken in two ways, generically and specifically. Considered generically, it is an addition made to some thing, either on account of the production of a thing, or on account of the union of a thing with another, or on account of the alteration of the same thing. C. I. 443; C. G. 546; C. H. 353; C. A. 404; C. L. 2284. Cf. here 902, 905.

Is ownership acquired by production of a thing? - By reason of production of a thing there is distinguished generally the production of fruits, and specifically birth.

By production of fruits, whether natural or by fiction of law, the proprietor of a fruitful or lucrative thing makes its fruits his own, whether natural or civil, such as the fruits of fields and the rents from lease of houses or revenues. Hence the common saying: A thing bears fruit for its owner. C. I. 444; C. G. 547; C. H. 354; C. A. 405; C. B. 953; C. L. 2290. - From C. B. 954, 956, ownership of fruits is not acquired by others than by the owner himself of the fruitful thing, except by their separation. But birth is the offspring of animals, by which ownership is acquired of the animal generated from one's own animal. For this title it makes no difference whether the offspring was conceived from one's own or from another's male animal. Hence the legal saying: The offspring follows the womb. C. I. 443, 444; C. G. 546, 547; C. A. 406; C. H. 357; L. 494, 609, 610. He who receives the fruits of a thing has the obligation of compensating third parties on account of expenses made for cultivation, seeds, and works. C. I. 445; C. G. 548. Inst. 1. 2. t. 1. §§ 19, 35.

Is ownership acquired by union of a thing? - The union of a thing with another also comes under the name of accession, and accession taken in this way, although more determined, is still taken generically. And thus accession, taken generically but more strictly, is a union by which something accidental is joined to the principal. But this union can be made by nature or by art; hence there are various species, concerning which we shall speak immediately. Since the accessory follows the principal, the property of the principal thing generally grants a right in the accessory thing united to it. - R. I. 42 in the Sixth; C. I. 443; C. G. 546; C. H. 353; C. A. 404; C. L. 2289, 2299.

Is ownership acquired by alluvion? - Alluvion is a species of accession in a matter of soil, not by man's industry, but by nature alone. Four things are to be distinguished here: alluvion, avulsion, change of riverbed, and an island born. Alluvion is a hidden increase which is gradually added by a river to some estate. By alluvion, ownership is immediately acquired of that increase which, by the force or even by the recession of water, is insensibly and successively added to an estate. C. I. 453, 454; C. G. 556, 557; C. H. 366; C. A. 411; C. L. 2290, 2291; L. 494. Except, however, places left by the sea, which are of the domain, and lakes or ponds of private persons, which, whether they increase or decrease, grant or confer no new right. C. I. 454, 455; C. G. 558. Avulsion occurs when a whole part of land, torn away by the force of a river, is joined to another estate. Ownership of this is not acquired immediately, but, possession of it having been taken, after a year, unless the owner has vindicated it for himself. C. I. 456; C. G. 559; C. A. 412. Cf. C. H. 368, 369; C. He. 659; C. L. 2292. Change of riverbed. If a river gradually recedes from one bank and invades the other, the place left belongs to the proprietors of the fields along the bank, with no damage repaid. C. I. 454; C. G. 557; C. H. 370. If a river, having left its whole natural bed, forms a new bed for itself, the former bed left behind is divided among the proprietors of the fields of both old banks. C. I. 461; C. L. 2293. Cf. C. G. 563; C. A. 409, 410. A new island born in the middle of a river likewise belongs to the proprietors of the fields of both opposite banks, provided that the river is not suited to navigation or to carrying goods; otherwise the island belongs to the State, unless a contrary title or prescription is present. C. I. 457, 458; C. G. 560; C. H. 371, 373; C. A. 407 ff.; C. L. 2294, 2295. Born; for if it was made from a river flowing around a field, it remains his whose it was. C. I. 460; C. G. 562; C. A. 408; C. H. 374; C. L. 2296.

Inst. 1. 2. t. 1. §§ 20-24.

Is ownership acquired by building, planting, sowing? Building, planting, and sowing are likewise certain species of accession in a matter of soil, made, however, through man's industry. Whatever is built, planted, or sown in the soil yields to the soil. For ownership of the land generally draws with itself whatever is placed above or below. C. I. 447, 448; C. G. 552, 553; C. H. 350, 358, 359; C. Ps. 946; C. He. 671, 673. Now he who has built, planted, or made other works on his own land from another's material must repay the price of the material to its owner, and if he acted in bad faith he must repair damages to the same owner. C. I. 449; C. G. 554; C. H. 360; C. A. 416, 417. But the owner of the material cannot vindicate it for himself if the built work would be destroyed or the planting would perish, from C. I. 440; and from C. G. 554, he simply cannot vindicate it for himself.

But if someone from his own material has built, planted, or made other works on another's land, C. I. 450; C. G. 555, the proprietor of the land has the right of retaining the works, or of obliging the other to remove them at his own expense and with damages repaid; but if the proprietor of the land prefers to retain these works, he must, according to C. G., pay their price, or, according to C. I., the increased value of the land. - But the proprietor cannot compel the removal of works made by a third party who has suffered eviction and who by reason of his good faith has been exempted from restitution of fruits; rather, he is bound to pay for them in one or the other way. C. I. 450; C. G. 555.

Cf. C. H. 361-364; C. A. 418; C. B. 946, 951. If finally some third party builds, plants, etc., on another's land from another's material, the owner of the material cannot vindicate it for himself, but can seek from that third party compensation for damages, and from the owner of the land the price of the material not yet paid, if he retains the building. C. I. 451. Cf. C. A. 419, 420; C. H. 365. From C. B. 946, 951, when a movable thing is so united to land that it becomes an essential part of it, the ownership of the land extends to that thing, with damage repaid to the owner of that thing; who, on the contrary, must make good the damage inflicted on the proprietor of the land, if he acted by an illicit act. L. 500, 501; Inst. 1. 2. t. 1. §§ 29, 30, 31, 32; C. L. 2304 ff.

What is adjunction, and is ownership acquired through it? - Adjunction or accession, specification, mixture or confusion, are species of accession in a movable thing. Accession here is not taken generically, for any union of thing to thing, but specifically, for a certain special union of things. Now adjunction, or accession specifically so called, occurs when two things are so joined together that from both one integral body is formed, namely because one thing is completed from the other, while nevertheless the substance of each thing remains distinct.

And thus adjunction or accession occurs by weaving, as if another's purple is woven into your garment; by insertion, as if another's gem is inserted into your gold; by writing, painting, etc. Adjunction or accession is governed by natural equity. C. I. 463; C. G. 565. But in whatever way the union is made, if the thing united belongs to another, and can be separated from the other without grave detriment, the owner of the accessory thing has the right of seeking separation, and each thing is to be returned to its owner, from C. I. 464; C. A. 414, 415; C. H. 378, as, for example, stakes joined to vines, tiles joined to buildings, etc.; but from C. G. 566 the whole belongs to the owner of the principal thing, with the price of the accessory thing paid.

But if the accessory cannot be separated from the principal, it yields by force of accession to the principal thing, but the owner of the latter is bound to pay the price of the former. C. I. 464; C. H. 375; C. B. 947, 948, 949, 951; C. He. 727. Cf. C. A. 415; L. 487. But accessory is that which is applied for the sake of adorning a thing, that which cannot stand per se without the other, that which is cheaper, that which is smaller. C. I. 465, 467; C. H. 376, 377; C. G. 567, 569.

But if the accessory surpasses the principal, it is in the power of the owner of the accessory thing either to vindicate the whole for himself, by paying to the owner of the principal thing the value which it has, or to take out his own thing, even though this cannot be done without detriment to the other thing. C. I. 466; C. H. 378; C. G. 368. Cf. C. A. 415; C. H. 379. And if the accessory altogether far surpasses the principal, then the accessory is held as principal and the craftsman can retain the whole, with the price of another's material repaid. C. I. 470; C. G. 561. - Finally, if neither thing surpasses the other, and one cannot be separated from the other, neither yields to the other, but to each owner his own thing remains, and the whole remains common to the owners.

C. I. 469; C. G. 572. From C. B. 947, 951, when two movable things are so united together that they become essential parts of a new thing, the prior proprietors become co-proprietors of this thing in proportion to the value of their own thing at the time of the union. If one of those things is to be considered as principal, its owner exclusively acquires ownership of the new thing, with damage repaid to the owner of the other thing; who, on the contrary, must repair damage to the other, if he acted by an illicit act. - Inst. 1. 2. t. 1. § 26; C. L. 2299 ff.

What is specification, and is ownership acquired through it? Specification is the introduction of a new form into matter. To have specification, although a substantial change of the thing is not physically required, nevertheless a substantial change is required morally; for example, if someone makes cloth from another's wool, a ring from gold, a ship from boards, wine, oil, or grain from grapes, olives, or ears. Whether the matter can be reduced to its prior form, or cannot be, the new species yields to another's material, with the price of the art employed being repaid. C. I. 408; C. G. 570.

If, however, the price of the industry far exceeds the price of the material, the craftsman can retain the species made by him, with the price of the material paid; and, if he acted in bad faith, he is bound besides to repair damages. C. I. 470, 475; C. G. 571, 577. - Therefore if a craftsman made a vessel from another's silver, the owner of the silver vindicates the vessel for himself, with the price of the workmanship repaid. If a sculptor made a statue from another's marble, he retains it for himself, with the price of the marble repaid. Gousset in C. G. 570, 571. From C. H. 383, the matter yields to the form, with the price of the matter paid, unless the value of the matter is more precious, or bad faith intervened.

From C. He. 726, the new thing belongs to the craftsman, if the labor is of greater value than the value of the material; otherwise it belongs to the owner of the material. From C. B. 950, 951, he who by his own industry so transforms several movable things that a new movable thing is produced acquires ownership of it, unless the value of the industry is notably lower than the value of the material; and then the rights in the preexisting material are extinguished. Nevertheless its owner must be rendered indemnified. Writing, drawing, painting, printing, and any other work performed on the surface of a thing are recalled to industry. L. 496; Inst. 1. 2. t. 1. §§ 25, 33, 34; C. A. 414, 415; C. L. 2302, 2303.

What are mixture and confusion, and is ownership acquired through them? - Mixture is the union of several solid things. But confusion is the union of several liquid things. - If the mixture or confusion is of several things of diverse kind, and a new species has been made from both, for example if mead has been made from honey and wine, to whom it ought to yield must be sought from the law of specification. If no new species has been made, and the things can be separated, he who did not provide assent to the mixture or confusion can seek separation.

If the things can in no way be separated, as the grain of Titius mixed with the grain of Caius, or cannot be separated without detriment to the things, the whole mass becomes common, in proportion to each one's portion and price. C. I. 471; C. G. 573; C. He. 727. Nevertheless, if the portion of one can be regarded as principal, or as much more precious, and the things cannot be separated, or not without detriment, for example if grain of the best quality has been mixed with grain of the lowest quality, or with rye, the owner of the former can retain the whole for himself, with the price of the other portion repaid. C. I. 472; C. G. 574; C. He. 727. Cf. C. H. 381, 382; L. 498, 499, 607, 608, 611, 612, 686.

And this Lugo, relying on Roman Law, L. Si alieni nummi 78. ff. de Solut., understands both as to coins and as to other things, whenever that which is added is less than the preceding thing to which it is added, and the admixture is made with the intention of acquiring ownership. D. 6. nn. 164-166. - Inst. 1. 2. t. 1. §§ 27, 28; C. A. 414, 415; L. 498. From C. B. 948, when two movable things are inseparably mixed or confused, the preceding dispositions of a. 947 are applied with due analogy. To the impossibility of separation is equated the case in which mixed or confused things would be separated only with excessive expenses. Cf. here 905.

What is usucapion or prescription? The chief mode of acquiring ownership by civil law is usucapion or prescription, which is defined: the acquisition of ownership, or liberation from some obligation, and the extinction of another's right through continuation of possession, for the time and in the manner defined by the laws. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452. Acquisition of ownership; for through legitimate usucapion or prescription, from the disposition of civil and canon law, the possessor acquires ownership of another's thing, or is freed from some obligation.

For usucapion or prescription is twofold: one acquisitive of right, the other liberative from servitude or another burden. The former is properly called usucapion, the latter properly prescription; but these names are often used promiscuously, and in reality they cannot be separated, for what is acquisitive with respect to one is extinctive with respect to another. C. A. 1451, 1478; C. B. 194, 937, 945; C. L. 505. And the extinction of another's right; for after the possessor by legitimate prescription has acquired ownership of another's thing, or has freed himself from some obligation, on the part of the prior owner not only is ownership extinguished, but also every right to the thing; hence one who legitimately prescribes some thing is not bound by any obligation toward another.

C. I. 1236; C. G. 1234; C. A. 1449. Through continuation of possession for the time, etc.; for continuation of legitimate possession for the time and in the manner defined by the laws is the proximate reason on account of which civil and canon law attributes ownership of another's thing to the possessor. Civil and canon law, since usucapion or prescription is governed by that law to which the thing to be acquired by usucapion or prescription is subject. - C. 4, 6, 8 de Praescr.; Inst. 1. 2. t. 6. Cf. on this whole matter Troplong, della Prescrizione.

For what causes was usucapion or prescription introduced? - The causes on account of which usucapion or prescription was introduced by civil and canon law are four: 1. That the uncertainty and confusion of ownerships might be removed. 2. Lest lawsuits be multiplied. 3. Lest possessors live in continual fear of losing the thing possessed. 4. Lest men be negligent in preserving their things and rights. - Therefore usucapions or prescriptions were introduced on account of the public good; and therefore creditors and debtors cannot stipulate that no usucapion or prescription proceed between them. C. I. 2107; C. G. 2229; C. A. 1935; C. A. 1502. Nor consequently can someone renounce the right of prescription. C. L. 508 ff. - Inst. 1. 2. t. 6.

Prescription, however, in a civil cause, cannot be proposed ex officio. C. A. 1501; C. G. 2223; C. I. 2109; C. L. 514, 515. In a civil cause; for prescription of a penal action and of condemnation is applied ex officio, and it cannot be renounced. C. I. pen. 99. But in criminal causes of clerics a penal action is extinguished, "if indeed prescription has been expressly opposed in judgment by the accused or investigated person, or by his procurator. From this it is easy to perceive that the right both of accusing and of investigating remains entire until prescription is expressly opposed, and that the judgment altogether holds if the same has by no means been opposed." S. C. EE. et RR. 21 Mar. 1898. E. M. de stat. Partic. 7, 8 at the end, ed. 4, p. 172.

Is prescription a legitimate mode of acquiring ownership?

R. Affirmatively, both in the external forum and also in the internal forum, as the very common opinion of doctors has it, and it is approved by canon law itself. C. 3, 20 de Praescr.; C. 1 e. t. in the Sixth. The reason is that, with so great negligence of the owner standing, namely of not reclaiming his thing within the established time, it is legitimately presumed either that the thing is truly the possessor's, or that its true owner renounces it to the same. - Therefore the possessor, although after legitimate prescription he learns that another was the owner of the prescribed thing, nevertheless is not bound to restore it to him, since through legitimate prescription he himself has been made owner. But once prescription has been completed, the thing is his as if it had always been his, nor does he owe fruits of the past time. And even if the possessor is ignorant that he has acquired ownership of the thing by prescription, nevertheless he prescribes legitimately; and if from such ignorance he returns the thing thus legitimately prescribed to the prior owner, afterward, conscious of the right, he can demand it back. C. I. 2105; C. G. 2219; C. H. 1930; C. A. 1451, 1452; Inst. 1. 2. t. 6; S. Th. Quodl. 12. a. 24; L. 513, 517; Lugo, de Iust. et Iur. d. 7. s. 1; Cf. C. B. 222, 390, 479.

What conditions are required for prescription? - For legitimate and consequently valid prescription by both laws, canon and civil, the following conditions are required: capacity to prescribe, a thing apt for prescription, possession, title, legitimate time, good faith. Inst. 1. 2. t. 6; L. 504.

Who can prescribe? - All those can prescribe who are capable of acquiring ownership. Therefore both private persons and Communities and Churches can prescribe, as they are also subject to prescription. C. L. 507, 516; C. I. 2114; C. G. 2227, 2251; C. A. 1453, 1454; C. H. 1931, 1932; C. 3, 8, 9 de Praescr.

What things can be prescribed? - Generally, all and only those things can be prescribed which come under ownership and private commerce, and for whose acquisition a legitimate title can be given. For since the end of prescription is to transfer ownership by authority of law, such transfer cannot be made concerning a thing which from its own nature, or from the disposition of the laws, cannot come into private ownership. Those things which can be alienated can regularly be prescribed. For those things which cannot be alienated cannot be acquired by another. C. I. 2113, 2135; C. G. 2226, 2262; C. H. 1936; C. A. 1455-1459, 1480, 1490; C. B. 194; C. L. 506; Inst. 1. 2. t. 6.

Likewise all rights and all obligations are subject to prescription. Rights, obligations, namely those which do not pertain to oneself, but to others; for prescription is not made against oneself, but against another; and thus the right of building or planting in one's own soil is not prescribed against oneself. To others, namely private persons; for those things which are of public order and public right, such as the power of a superior of making laws, obedience owed to superiors, are by no means subject to prescription. To others, that is, those things which can come to others from our concession, as, for example, the faculty given to another of building on your soil, if he has not used this faculty for thirty years; from our concession, not from mere toleration; from our concession, not those things which flow from natural law, such as, for example, the faculty which anyone has of alienating his own thing, nor those which flow from civil law, such as a change of domicile, restitution in full granted to a minor, a married woman, or one interdicted. Therefore acts merely facultative and of simple toleration cannot be the foundation of prescription. For the natural and civil faculty of each one cannot legitimately be possessed by another; and toleration excludes concession of one's own right, on the presumption of which prescription is founded. Facultative acts, namely acts which are merely acts of the power of acting or doing, in oneself or in one's own thing, not merely acts of exacting something from others, with an obligation imposed on them. C. I. 688; C. G. 2232; Troplong, della Prescrizione c. 1, Dispos. Gener. n. 112; c. 2, del Possesso n. 381 ff.; L. 9 de Usurp. et usuc.; E. M. From C. He. 789, land burdens cannot be prescribed. Individual prestations can be prescribed, from the moment when they become the personal debt of the one obligated. And from art. 807, credits secured by an enrolled immovable pledge are not subject to prescription. Likewise perpetual census is imprescriptible; that is, the right to the payment of the prestation, although this can be prescribed, namely as to the various annual payments. Pothier, Trattato dei Censi s. 1. a. 1. § 3. Cf. L. C. de Praescr. 30 vel 40 annor. C. From C. L. 537, inalienable rights, and those which are perpetual, cannot be prescribed. From the same C. L. 592, literary property is imprescriptible.

You will resolve: Public sacred and religious things, such as churches, cemeteries, ecclesiastical rights, and also profane things which are of public ownership strictly taken, such as squares, roads, etc., the former cannot be prescribed by laypersons, the latter by private persons. For they cannot acquire ownership of these things. Schmalz. 1. 2. t. 26. n. 24 ff. "For public places indeed serve the uses of private persons, namely by the right of the city, not as if proper to each one... things which are destined for public use." L. 2. § 2, 5. D. Ne quid de loco publico. The right of conferring benefices cannot be prescribed by laypersons. C. 7 de Praescr. - Nor can the boundaries of parishes or dioceses be prescribed, provided that it is established that they were constituted by legitimate authority. C. Super eo 4 de Paroch. More truly also burdens of Masses cannot be prescribed. Cf. Ferrar. v. Usucapio n. 17; S. C. C. 18 Feb. 1702, 18 Aug. 1843. Although the Pontiffs did not wish ecclesiastical benefices to be transferred to laypersons by prescription, nevertheless an ecclesiastical benefice can be prescribed by a cleric by three years' possession, as is had in Reg. 36 of the Chancery, concerning three years' possession. Here, however, it must be noted that for a similar prescription these conditions are required: 1. good faith; 2. peaceful possession for three years; 3. colored title; 4. non-simoniacal entry; 5. that the beneficed person has not intruded himself into a benefice reserved to the Apostolic See in the Body of Law. L. 507, 515; Lugo d. 7. s. 7; Haunold. t. 1. tr. 5. c. 2. n. 273. C. I. 177, 427, 430; Inst. 1. 2. t. 6; C. 11, 12, 16 de Praescr.; Troplong, della Prescrizione c. 1.

Note: In order that prescription proceed against someone, that is, that it can begin and, once begun, be continued, it is necessary that he be able to defend his rights in court, and that he already have a complete right in the thing. Prescription does not run against one unable to act. Hence prescription does not proceed if someone has fallen into insanity; likewise against conditional rights while the condition is still pending; against rights for a determined day, while the day has not yet elapsed; against an action for eviction until controversy has been moved.

Cf. C. I. 2120, 2121; C. G. 2257, 2258; C. H. 1932, 1934; C. A. 1494, 1497; C. B. 198 ff.; C. L. 545, 550; C. Placuit 1 de Praescr., C. De quarta 4 ib., C. transmissa 10 ib.; L. 1 de Annali exceptione C.; L. 7 de Praescr. 30 vel 40 annor. C. But prescription simply does not proceed, that is, it can neither begin nor be continued, among those who are considered as one person, that is, between spouses, between a son under paternal power and him under whose paternal power he is, between those administered and administrators given by law, between an heir who enters upon an inheritance with the benefit of inventory and the creditors of the inheritance entered upon by him, as to credits which he himself has against the succession. C. I. 2119; C. G. 2252, 2253, 2258; C. A. 1495; C. B. 204; C. L. 551; Troplong, della Prescrizione c. 4. n. 804.

Is possession required for prescription? - It is certain that legitimate possession is required for prescription. This is clear both from civil law and from canon law: "Without possession prescription does not proceed." R. I. 3 in the Sixth. Possession as to things, quasi-possession as to rights, which consists in the use of a right, or in cessation from fulfilling an obligation, as if someone uses a servitude of passage or of aqueduct, if someone prohibits another from going through his land, or obstructs an aqueduct. Inst. 1. 2. t. 6; C. I. 2106; C. G. 2229; C. H. 1940; C. A. 1460; Laymann 1. 3. tr. 1. c. 8. n. 4; Struggl, Theol. univ. p. 2. tr. 8. d. 2. q. 3, a. 4. II; Troplong, della Prescrizione c. 2; E. M.

What are the conditions of legitimate possession? In order that possession be legitimate, it must be:

1. Dominative, that is, one must hold the thing by himself or through another in his own name as owner, with the intention of owner.

2. Peaceful, without any force, with respect to the owner; therefore, if someone by force has prohibited the owner or his tenant from possession of the estate, usucapion of the estate does not proceed for him. - 3. Manifest, not secretly, again with respect to the owner; for example, if the tenant of Titius sells the land to Caius, and remains in possession of the land as tenant of Caius, usucapion does not proceed for Caius. - 4. Not equivocal, so that it appears openly that you possess the thing as your own, that you use a right as though your own; and thus usucapion is not had if a lessee from an estate leased to him diverts water into his own estate, or if someone draws water from a neighbor's well, which is generally done by right of neighborhood, friendship, and familiarity.

5. Continuous, as to its acts and signs. But this continuity is not absolute, but relative to the thing possessed. And thus a right of repeating a prestation on the occasion of the birth of a son, marriage, or death, is not exercised except when that occasion presents itself; and therefore even a few acts suffice for the continuity of possession through many years. Once the beginning of possession has been proved, continuation during the intervening time is presumed.

6. Not interrupted by another's act, neither naturally nor civilly, if the thing, for example, in the intervening time had been stolen, had been taken away by force, or if there had been a judicial citation, or a petition for the thing in court, etc. Cf. 923, 924. - 7. Complete; but for fulfilling the time of usucapion established by law, the successor, or the one having a cause, that is, he to whom the thing has been transmitted, if he is singular, can use the accession of possession of his author, that is, of him from whom he received the thing; for example, the buyer can use the possession of the seller. But if the successor is universal, that is, an heir, he must use it. An heir; but he who succeeds someone in an office is in the manner of a particular successor, not of an heir. Cf. 927 ff. - C. I. 685, 686, 693, 2106, 2115 ff.; C. G. 2228, 2229, 2232-2235 ff.; C. H. 444, 1941, 1942, 1944 ff., 1960; C. L. 510, 517, 518, 521 ff.; C. A. 1460-1462, 1464, 1493; C. B. 857, 858, 943, 944; Inst. 1. 2. t. 6; L. 506; Troplong, della Prescrizione c. 2, del Possesso n. 452.

You will resolve: "Hence it happens that a tenant farmer, lessee, depositary, borrower for use, slave, and similar persons do not possess sufficiently for prescribing; for these do not possess in their own name, but in the name of the owner, who through them possesses with possession useful for prescription, namely both civil and also natural. But a usufructuary and an emphyteuta indeed possess sufficiently that they may prescribe in order to the right of the land, not as to ownership; because they do not possess this civilly. Likewise a tutor, curator, procurator, and similar persons possess not in their own name, but in the name of others; for whom also their slave, son under paternal power, and religious can prescribe. Finally, he who is not capable of acquiring ownership does not possess with possession useful for prescribing. Hence a layperson, who is not capable of a spiritual right, to tithes or to anything else, cannot prescribe it, as Molina commonly teaches with others, d. 62 toward the end." Lugo d. 7. n. 13; C. I. 685, 2115; Inst. 1. 2. t. 1. §§ 1-10.

What is the title required for prescription? The title required of possession in general is the cause from which we hold or possess a thing. One title is translative of ownership, which per se is ordered to transferring ownership, such as sale; another is non-translative, which per se is not ordered to transferring ownership, such as lease. The latter is defective, for of itself it is insufficient for prescription. Indeed, it perpetually obstructs prescription, for it always shows another owner. And thus it is better to have no title than to have a defective title. But the former, if not true and existing in reality, at least apparent, thought to exist, or presumed, is necessarily required for prescription. For, with every title lacking, one cannot prudently judge the thing to be his; and therefore without every title, he cannot be a possessor in good faith. C. I. 701, 2115 ff.; C. G. 550, 2228 ff.; C. A. 1461; C. H. 433, 1434, 1940, 1952, 1953, 1954, 1955, 1959.

Now concerning this title it must briefly be said that it is not absolutely required to be true, but generally a title thought to exist, apparent, or presumed suffices. "For if there had been a true purchase, or donation, etc., prescription would not be required; therefore an apparent title is required, such as purchase, for example, from him who was thought by the buyer to be the owner, although he was not the owner. But the reason is that without title there could not have been good faith at the beginning of possession. Yet because the title could have been present at the very beginning, and afterward be lost through forgetfulness, it was therefore established that a presumed title suffices. But to presume title, possession for that ordinary time required for prescription does not suffice; rather possession for 30 or 40 or more years is required, which is customarily called possession of the longest time: and this indeed when the law does not resist, nor from elsewhere is there presumption of bad faith in the possessor. But if the law resists, or there were a presumption of bad faith in the possessor, possession for immemorial time would be required, as is clear from C. I. de Praescr. in the Sixth.

But if there were not only presumption, but it were established concerning the bad faith of the possessor, or concerning ignorance of a law not doubtful, which ignorance, even if it were invincible, is equivalent to bad faith in this matter; then even possession for immemorial time would not suffice; because a possessor in bad faith prescribes at no time. But the law is said to resist possession not because it is made in some way to the contrary, but because it positively prohibits such possession." Lugo d. 7. n. 15; L. 505. Cf. here n. 855.

What sort of title is required for prescription according to more recent laws? - For ordinary usucapions a special title is required, capable of transferring ownership, for example purchase; colored or apparent, and not only thought to exist or putative, for example if someone thinks, although in good faith, that he bought, because he sent a servant to buy the thing, and he did not buy the thing, but received it on loan for use: for a title translative of ownership is not a title merely thought to exist. Moreover, a just title is required, that is, the title must stand in its legal form. C. I. 701, 2137; C. G. 550, 2265, 2267; C. H. 1940, 1952-1954; C. A. 1461, 1467, for example, if an immovable is donated, but by private instrument, C. I. 1056; C. G. 931. Form; not solemnity, for example if a minor or wife alienates without the decree of a judge, without the consent of the husband. It needs besides, except in a legacy, transcription, and from the completion of this usucapion begins to proceed from C. I. 2137; C. A. 1467; C. H. 1949. But a title thought to exist or presumed suffices for usucapions of the longest time, or 30 years. C. I. 2135; C. G. 2262; C. A. 1477; C. H. 1955, 1959. L. 27 de Usurp. et Usucap.; L. 1 Pro haer.; L. 1 Pro donato; L. 11 Pro empt.; L. 3 de Usucap. pro haer. C.; C. L. 518; Troplong, della Prescrizione c. 5. n. 893 ff.

How much time is required for prescription according to Roman and Canon law? - Movable things, if a special title is present, both among present persons and absent persons, are prescribed by a completed three years. L. un. C. de Usuc. transf. And this still holds as before as to the goods of churches. Auth., received by the Church, Quas actiones de Sacrosanctis ecclesiis; Extr. Ambitiosae de Reb. Eccl. non alien.; Lugo d. 7. n. 69; L. 506, 507, 510. - Immovable things according to the same Law, if a special title is present, are prescribed against a private owner among present persons by ten years, and among absent persons, namely those who are under a different provincial government, by twenty years.

Inst. 1. 2. t. 6; L. 509. Things both movable and immovable, if no special title is present, are first prescribed after the completed time of thirty years. L. 500. But immovable goods of churches, monasteries, hospitals, or those belonging to other pious causes are not prescribed except by a space of 40 years; indeed immovable goods of the Roman Church only by a space of 100 years. C. 4, 6, 8, 9, 13, 14, 17 de Praescr. The Lateran Church also has the privilege of hundred-year prescription, and many religious Orders have it. - Nov. 131. Cap. 6; Schmalz. 1. 2. t. 26. n. 100 ff.; Struggl l. c. q. 3. a. 5; L. 510; Anacletus, Decr. lib. 2. tit. 26. nn. 151, 171. "Since custom tends not only to abrogate law, but also to take away and diminish rights belonging to the Roman Pontiff alone, besides the other conditions it is necessary that it have persevered without any interruption for a space of at least a hundred years." Benedict XIV, de Syn. 1. 9. c. 2. n. 6. - E. M. "Annual revenues are considered among immovables by law." Clem. Exivi § Proinde de Verbor. signific.

Dominion can chiefly be acquired: 1. by occupation; 2. by finding ¹; 3. by prescription; 4. by accession; 5. by contracts, concerning which it will be said in a particular Treatise.

¹ Others more commonly call finding back to the mode of occupation; and therefore they enumerate not five, but four modes of acquiring dominion.

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.

1. Magdalena, a noble woman, donated some estates to Henricus, that in part of estates of this sort a monastery might be built for receiving Discalced Carmelites, and that the remaining part ought to serve for their sustenance. The donation, having been manifested to the Carmelites, was accepted by them. The building already completed, and the Carmelites now dwelling in the convent, Henricus built another college on the same estate on which the convent of the Carmelites was, destined for educating girls, and handed it over to other nuns. Hence the Carmelites complain greatly and ask that the rights which belong to them over the estate donated to them by the pious woman be preserved entire, and that the college be removed.

Q. 1. What are accession and building upon? 2. What as to the case?

R. To the first. Cf. I. M. 900, 904, 905. - To the second. This must first be noted: that, as clearly appears from the case, the donation of the estates was made not to Henricus, but to the Carmelites; Henricus is only a merely interposed person, so that the will of the pious matron could easily be put into execution. Therefore the estates donated by Magdalena pertain, as to perfect dominion of ownership, to the Carmelites. Moreover, he who builds on another's soil with his own material loses the building, because it yields to the soil. "On the contrary, if someone has built on another's soil with his own material, the building belongs to him whose also the soil is; and, if he knows that the soil is another's, he is understood to have lost the ownership of the material by his own will." L. 7, ff., § 12, de Acquir. rerum domin. Indeed, rather, he who knowingly and in bad faith has built on another's soil cannot ask the price of the material and the wages of the workmen. "Certainly, if the owner of the soil seeks the building and does not pay the price of the material and the wages of the workmen, he will be able to be repelled by the exception of fraud: that is, if he who built did not know that the soil was another's, and built in good faith as on his own; for, if he knows, fault can be objected to him, because he built rashly on that soil which he understood to be another's." Loc. cit. But Henricus knowingly, and therefore in bad faith, built the college on the soil of the Carmelites. Therefore Henricus is held to destroy the college at his own expense; he himself is held to sustain every loss and to compensate all damages brought upon the Carmelites. Cf. Inst. l. 2, 1, § 30; A. S. S., v. 24, p. 550 seqq.; I. M. 904.

2. The women of a certain village, in autumn time, had spread flax in the meadows according to custom near the bank of a river. An unexpected storm having arisen, and the river swelling, all the flax was carried away to an island situated in the middle of the river, not very far distant. The farmer who was on that island with his family gathered almost all the flax and kept it for himself. But behold, when the storm had been calmed, the women, coming and seeing the flax from the bank exposed to the sun so that it might be dried, begin to cry out that the flax be restored to them.

Q. 1. What is alluvion? 2. What as to the case?

R. To the first. Cf. I. M. 903. - To the second. The farmer cannot keep the flax for himself by title of alluvion. For by alluvion here is understood not any profit whatever brought to someone by the force of waters, but only an increase of land or soil made to an estate by the force of waters. Therefore the flax must altogether be restored to the women. But since the mixing was made altogether by chance, without any consent of the women, and the women can no longer distinguish their own flax, the whole mass is common according to the proportion of each one's portion. Wherefore it is not licit for individual women to snatch from that mass placed in common that quantity of flax which they can seize, but only that which they had before the mixing. And, if some quantity of flax was dissipated in that misfortune, this detriment must be sustained proportionately by each one, and proportionately less then each one ought to receive from the whole mass. G. 564, 548; Elbel 232, 233; I. M. 903, 907.

3. Girinus stole another's wool, from which he had cloth made. Likewise he stole another's wheat and mixed it with his own wheat of the same quality, but of a far greater quantity. The owner of the wool and wheat, learning of the theft, demands from Girinus the cloth and the whole heap of wheat.

Q. 1. What is specification? 2. What as to the case?

R. To the first. Cf. I. M. 906. - To the second. Girinus did not become owner of the cloth by specification under the more recent law, and therefore he must return the cloth to the owner of the wool. This owner is indeed held to pay Girinus the price of the specification or art. But, since Girinus acted in bad faith, he is held toward the owner of the wool concerning damages, if any perhaps followed. But since Girinus's wheat was of a far greater quantity, he himself became, by commixture, owner of the whole heap; nevertheless he is held toward the other owner of the wheat to adequate compensation. Likewise, since Girinus acted in bad faith, he is also held to repair damages, if any followed. - G. 551, 552; I. M. 906, 907.

4. Donatilla, from her slender labor, was providing sustenance for herself and her parents. On a Saturday, having received the modest wage of the whole week, she was returning home, when behold, night now having fallen, she fell among three robbers, who cruelly despoiled her of the received wage, equivalent to five lire. But she begged earnestly that they leave at least something to her, by which she might in some way revive her wretched parents from hunger. Moved by her tears, the robbers extended to her three silver lire, as they appeared by touch. Donatilla, having returned home and narrating the event, brought out the three lire received from the robbers; but, examining them with great joy, she found that they were gold and equivalent to 60 lire.

Q. 1. What is commixture? 2. What as to the case?

R. To the first. Cf. I. M. 907. - To the second. Donatilla, the thieves being unknown, can keep for herself the money received from them. For in such a case that money is an abandoned good: namely, not because it was handed over by the robbers themselves to Donatilla, since it was handed over altogether ignorantly and involuntarily; but because, in the present hypothesis, it is impossible to find them. I. M. 893; G. 527.

Even if the thieves are known, Donatilla can keep the money for herself. The reason is that, on the one hand, Donatilla has the right of denouncing them, and therefore can keep the money by reason of cession of her right; but the thieves are implicitly and rightly considered to consent to abandon the money, that they may redeem themselves from just vexation and not be brought before the judge. But on the other hand, either that money is the robbers' own, and then there is no difficulty from this head; or it was taken by theft, and then either the thieves mixed it with their own, which was in greater quantity, and by mixing it with their own made it theirs, and were held only for the value toward the despoiled owner, and in this case again there is no difficulty; or they did not mix it with their own, because they had none of their own, or a very small quantity, and in this other case, given the impossibility of finding the owner of the money, Donatilla can also keep it for herself. But what if the owner of the money appears? In truth it would be difficult in practice to prove that such a species of money belonged to such an owner, and that the robbers did not have other similar species of their own, or that other similar ones had not been stolen from others. I. M. 907; G. 527, 528, 531, 550, 551.

But what if someone had exchanged a silver coin for a gold coin, and should discover that the gold coin had been stolen from Peter: would that gold coin have to be restored to Peter? If the thief made that coin his own as such by commixture with other coins of his which he had, it would not have to be restored to Peter, and the thief would be held for its value toward the owner. But if the thief did not mix it with his own, it would have to be restored to the owner. But in practice it is very difficult for the identity of the coin to be established. This would be altogether easier if the matter concerned banknotes, which are distinguished not only by nation, but also by determinate numbers; these consequently would altogether have to be restored to the owner, as otherwise common practice and custom also holds. Hence in these banknotes attention is paid not only to the value, as in monies, but also to the species and to the individual. - G. 529; I. M. 907, 1420; C. I. 708.

1. Dominica, abbess of nuns, found in the archive of the monastery an ancient document by which it is established that a Mass was founded in the church of the monastery, and was to be applied for the founder. Yet since this foundation had been given over to oblivion already from a very long time, Dominica is doubtful whether she ought to procure that the aforesaid Mass be celebrated, and that the Masses omitted up to now also be celebrated, or at least that a sanation be obtained for them from the Holy See. For there seems to be place for legitimate prescription.

Q. 1. What is prescription, and what is its object? 2. Whether burdens of Masses are subject to prescription?

R. To the first. Cf. I. M. 908, 913, 914. - To the second. It is controverted; nevertheless the negative opinion seems truer. The reason is that, if there is question of Masses to be introduced or increased, for example, if when 50 Masses were to have been applied, a beneficiary has up to now applied 100, the Masses applied beyond the intention of the constitutors are just as if they had not been applied. But no one prescribes against himself. Hence the same beneficiary will not be held in the future to apply 100 Masses. But if there is question of Masses to be deleted or diminished, for example, if when there were 100 Masses to be applied, the beneficiary applied only 50, the reason of the common good, the foundation of prescription, lest ownership be uncertain and lawsuits be lessened and settled, does not press here, as is clear. For the obligation merely regards the private conscience of each one. But if there is question not of ordinary or even extraordinary prescription, even forty-year prescription, but of immemorial prescription, this is almost in place of a title. Wherefore the archive of the monastery must be better examined, that it may be seen whether another document is had, from which the reason is established why the Mass was not applied. Likewise one must see from what time the application of that Mass was omitted. These things having been investigated, it will then be easy to resolve the proposed case. - La-Croix, l. 4, n. 852; Bened. XIV, de Syn., l. 3, c. 25; St. Alph., H. A., tr. 15, n. 74; tr. 20, n. 84; Ferrar., v. Usucapio, n. 17, § 1, n. 30; D'Annib., p. 3, n. 76, n. 14; S. C. C., 18 Feb. 1702, 18 Aug. 1845, 20 Dec. 1879; A. S. S., v. 13, p. 220 seqq.; Decr. Auth. S. R. C. 333; I. M. 913, 914.

2. Ernestus was bound to pay yearly to Marcellus a canon of 10,000 lire from a perpetual census. For thirty and more years, in good faith, they did not pay the canon, neither he nor his son Ernestinus, the universal heir. Nor indeed did either Marcellus or his son Marcellinus, the universal heir, make protest. But one day Ernestinus, reading through ancient papers of the private family archive, came to knowledge of the omitted payment. But since thirty years had now elapsed, he asks whether prescription has now legitimately been made.

Q. 1. What is required that prescription proceed? 2. What as to the case?

R. To the first. Cf. I. M. 915. - To the second. Prescription could not have been made, although thirty and more years have passed, and the payment of the canon was omitted in good faith. Wherefore Ernestinus is held to payment of the canon. The reason is that prescription begins to run from that point at which it can freely be opposed. If Titus, for example, borrowed from Sempronius, with an agreement of restoring the loan within five years, prescription, if he does not restore, does not begin except after the five-year period has elapsed. Hence the conclusion emerges that a perpetual census can never be prescribed; because the capital by which the revenue was constituted can never be reclaimed, and the right to exact the canon is not had except when each year has been completed. Wherefore Ernestinus is held henceforth to pay the canon to Marcellinus. I. M. 915.

But is Ernestinus also held to pay the canon of past years not yet paid? It does not seem that he is held to pay the canon not yet paid beyond thirty years ago. For in the space of thirty years actions, namely rights of pursuing and recovering in judgment what is owed to us, are prescribed, whether they are real or personal; real, for example, if there is question of vindicating for oneself an estate possessed; personal, for example, if there is question of reclaiming money given as a loan. Nor indeed can defect of title or bad faith be opposed to him who alleges prescription. C. I. 2135. But good faith is altogether required in the forum of conscience; this, however, was not lacking in the case. Wherefore, although the existence of that original debt is now brought forward, nevertheless it has now been altogether extinguished by this thirty-year prescription.

Indeed, neither does it seem that Ernestinus is held to pay the canon not paid in preceding years before five years ago. For it is openly had in C. I. 2144 that those things are prescribed in the space of five years which are owed yearly for perpetual or life revenues. I. M. 922.

And here it must be noted that, to impede prescription of some debt, he who is held to pay any annual prestation whatever which will endure beyond thirty years must at his own expense, after twenty-eight years have elapsed, give to the creditor, if he asks, a new document by which he acknowledges his debt. C. I. 2136. Caius, for example, pays Titus a thousand lire yearly for a debt which he has toward him, and in individual years receives from him a note testifying that payment was made; if Titus could not from Caius exact after twenty-eight years a new document, Caius could destroy the aforesaid notes and assert that, since he has paid nothing through thirty years, prescription has been made. It is enough that the debtor by another note declare that he has paid up to now and has received a note from the creditor testifying that payment was made, or that he simply declare his debt. But if the mortgaged estate has passed to a third party, a new authentic document is necessary; otherwise there would be a personal action against the first debtor, but by no means a real action against the third party. Indeed, even inscription and its renewal do not interrupt prescription of the mortgage. C. I. 2127.

3. To Ambrosius there had been handed over for keeping a certain chest containing several precious gems and various objects made of gold and silver. Ambrosius having died, his son, the heir, in good faith reckons the aforesaid chest among the hereditary things and keeps it for two or three years. But behold, one day Augustinus claims the chest as his own.

210. Five modes are enumerated by which dominion can be acquired: occupation, accession, hereditary succession, contract, prescription.¹ Of these one is original, by which, namely, a thing belonging to no one, or having no owner, is acquired; and this is called occupation; but the others are derivative, by which a thing already placed under someone's dominion is acquired. Concerning succession and contract there will be treatment in the other part of this Treatise, where contracts are treated; here, however, there will be treatment 1. of occupation; 2. of accession; 3. of prescription.

¹ Labor is indeed one of the modes of acquiring; but, when it concerns one's own thing, it is reduced to the right of accession; if it concerns another's thing, it is referred to contract.

I. What They Are. Modes of acquiring rights are the proximate causes of property, whether of a thing or of a right.

II. How many they are. 1. Some modes are original or originary, others derivative. Derivative modes contain formal succession into another's right; while through original modes a thing (or right) is possessed for the first time or quasi-first time. For the first time, when a thing which belonged to no one becomes someone's; quasi-first time, when a thing which was situated in someone's dominion is acquired by another through a title or cause in no way connected with the prior right. Thus by the original mode of usucaption a thing of another is procured.

Succession itself is universal or particular, according as it affects either the whole patrimony or a part of it, or a particular thing.

2. Some modes are natural, which have force from nature itself, as true occupation and donation; others civil, which have force from law, as treasure, and, as most hold, prescription. In another use, as many modes of acquiring as are sanctioned by civil law can be called civil. For the most part the mode of acquiring is of mixed origin, insofar as a natural mode is sanctioned by law, as for example occupation, to which of itself something is lacking. The contract itself is a mixed mode. Since by law you can hold a thing either as quasi-first or as quasi received from another (succession from law), law, for various causes, is numbered among original or derivative titles.

The modes of acquiring are occupation and treasure, accession, prescription, contract, inheritance, testament. To these, as causes of rights, there accede offices and delicts or quasi-delicts.

General Notions. Modes of acquiring, or proximate causes of property: a) some are original, by which things are possessed for the first or quasi-first time; others derivative, by which one formally succeeds into another's right. Succession is universal if it affects a patrimony or its aliquot part; it is particular if it affects a thing as particular;

b) Some are natural, which have force from nature itself, as true occupation and donation; others civil, which have force from law, as treasure and prescription; although all modes of acquiring, sanctioned by positive law, can be called civil. Most are mixed: thus contracts themselves. Besides these, causes of rights are offices, delicts, and quasi-delicts.

39. Preliminary Note. A mode of acquiring dominion is understood as the title upon which the acquisition of some thing is founded. Many authors distinguish original and derivative modes of acquisition. Those modes are called original according to which, at the first, the division of common goods or private dominion arose; but derivative modes are judged to be those according to which, after the division of goods has already been made, dominion of some thing is derived from one owner to another. In our regions, where there no longer exist things which have never been under private dominion, original modes of acquiring dominion are rarely given. In other regions not yet inhabited there are still lands and things which have never been under private dominion. There, therefore, an original mode of taking dominion can have place. For the most part in our times the consent of the civil government is required in those regions.

The modes of taking dominion are founded either in law (natural or positive), and then they are suitably called legal modes; or upon an agreement entered among men, and then they are called conventional modes. The conventional modes of acquiring and transferring dominion are the manifold contracts; these modes indeed are most frequent, whence below contracts must be treated especially. To those conventional modes of acquiring dominion, hereditary succession also is reduced at least in some way. But legal modes are generally distinguished as four: occupation, finding, accession, prescription; whence these four must be treated one by one.¹

Also to be noted is a certain distinction of goods which often occurs in modern civil codes; namely, vacant goods, derelict goods, and lost goods are distinguished:

Vacant goods are called those whose owner has died or disappeared, no heir or successor having been left and no testament having been made;² sometimes they are taken more broadly for those goods which have never had an owner, as pearls in the sea.

Derelict goods are called those which have been left by the owner without the intention of recovering them, for example fruits, nuts, grapes, ears of grain, which remained after the harvest had already been completed.

Finally, lost goods are those which even now actually have an owner, who nevertheless is unknown, for example a lost gold ring.

¹ Some authors, especially modern ones, enumerate labor also among the modes of acquiring dominion; but labor seems better to be reduced either to contracts, if namely it is concerned with another's thing, or to industrial or mixed accession, if it is concerned with one's own thing.

² Cf. Cod. Iustin. X, 10.

St. Alphonsus, III, 493 seq.; ed. G., II, p. 17; H. Ap., tr. X, n. 9; Lugo, o.c., disp. 6; Lessius, l. 2, c. 5; Molina, disp. 55; Lehmkuhl, I, n. 1079; Noldin, II, n. 382; Cas. consc. apud Lehmkuhl, Genicot, Bucceroni; Pelt, Legisl. civ., p. 66; Tanquerey, II, n. 210; Vermeersch, o.c., n. 211, 267.

877. Things to be noted beforehand. There are three titles by which ownership is acquired:¹⁶ a) a natural title, founded in natural law, to which the determination of positive law accedes, namely through occupation and accession; - b) a legal title, resting on human law, which sometimes, by reason of the common good, transfers ownership from one to another, for example through usucapion or prescription, or through the sentence of a judge;¹⁷ - c) a conventional title, or the will of the prior owner, either presumed (as in hereditary succession), or express, as in the various contracts entered according to the norm of laws.

This last title being omitted, which will be explained in Dissertation IV, here we shall treat: 1. concerning occupation; - 2. concerning accession; - 3. concerning prescription.

878. Definition. Occupation is the apprehension of a thing that belongs to no one, with the mind of having it as one's own. - It is said: apprehension, i.e. real and external occupation of the thing.

Division. There is distinguished: 1. warlike occupation, concerning which we spoke in n. 751; - 2. occupation of animals; - 3. occupation of things found, or finding, concerning which, with the principle first set down, we shall soon speak.

Principle. Occupation is a legitimate mode of acquiring ownership. This is required by nature itself, which made man capable of possessing, indeed which, on account of the condition of life, imposed on him the law of possessing. Occupation is the first mode of satisfying this law, nor can it be admitted that it has force only if either positive law or the consent of peoples accedes. Hence positive law cannot totally suppress the right of occupation.

Animals are of a threefold kind: some are wild or become wild, which enjoy natural liberty, as hares, birds, fish; or, although tame, have altogether recovered that liberty; - others are tamed or domesticated by training, which are deprived of liberty by the industry of men, so that, although they go out, they are always accustomed to return, as bees, doves; - others are tame or domestic, which by their nature use the society of men, as oxen, sheep, hens, etc.⁰¹

879. Principles. I. Wild animals or those become wild become the property of the first occupant. For things that belong to no one are licitly occupied by natural law.

Hence: 1. A nest occupied by you, even on another's land; animals reduced for a time into someone's ownership, if they have resumed primitive liberty (i.e. if they have escaped custody in such a way that their pursuit becomes difficult), pertain to you, by natural law, when you have occupied them.

2. He who kills wild animals enclosed by a wall or hedge; he who takes fish, oysters, etc., from a fish-pond or pond well closed, and a fortiori from another's net, commits injustice: for he occupies tamed animals. Lugo, l.c., n. 72.

3. A wild animal or bird wounded or ensnared on open land pertains to the one wounding or to the one setting nets, if it is certain that it could no longer escape; but it pertains to the one catching, if struck by a light wound or impeded by a light bond it could escape, or had already been abandoned by the hunter; finally it pertains to both, and is to be divided according to the proportion of hope, when the matter is doubtful.

It is asked: Whether laws that regard hunting and fishing oblige?

Resp. 1. Of these laws, some refer to external regime and good order: for example they determine at what time, or with what instruments, hunting or fishing is permitted. These laws (except those that protect the multiplication of wild animals) are merely penal (I, 145).

2. There are others that refer to the protection of another's right: for example a law prohibiting you from entering an enclosed field to place a snare, lest you cause damage. These laws oblige by force of natural law, and cannot be violated without lesion of commutative justice.

If, however, the fenced land is of great extent, take the gravity of damage from the hope that the owner had of catching wild animals.

3. Besides, other laws protect the right of hunting or fishing in an open place, conceded exclusively to someone by force of contract, for example of lease; and these bind by the same justice so that someone cannot be deprived of that right legitimately acquired. But he would be deprived of his right if others caught or destroyed such a multitude, for example of fish in a river conceded exclusively to him, that the right of fishing would thereby be notably injured. But the damage inflicted must be estimated not from the quantity of fish caught, but from the probable profit that on this account ceased (III, 605, 614; Konings, 644; Noldin, II, n. 388).

Note. a) A lessor of this kind, since he has the right of accusing delinquents, can accept money from delinquents, so that he desist from denunciation.

b) An illegitimate hunter makes animals his own (if they are in small number), unless some civil law opposes (cf. German Law, 958). Let the confessor always remember that the lessor is always held to avert damages from neighboring possessions. Therefore let him not easily condemn a farmer who, by making some wild animals his own, compensates himself.

4. Finally, there are laws that concede the right of hunting by way of mere privilege (for example if it has been conceded to nobles), or of mere license, even if it has been obtained by money. These laws bind in no way from strict justice, and there is no place for restitution (Lessius, l. 2, c. 5, n. 44).

880. II. Tamed animals remain the property of the prior owner, as long as they have not escaped his custody, or have not lost the custom of returning. For these pertain to the possessor, both by reason of occupation and also by reason of education and detention. - But otherwise, if they have escaped custody, etc.; for in such a case they have recovered their connatural liberty, and therefore become the property of the first occupant, provided that their escape is not procured by fraud, or their return to the possessor impeded.

Particular laws do not define in the same mode the time and other circumstances from which doves, bees, etc., are judged to have escaped the custody of the prior owner in such a way that they can be licitly occupied by another.⁰² At the time of harvest and sowing, doves inflict notable damage; hence they can licitly be killed by the owner of the land on which they are found.⁰³ - The law that in France adjudicates a swarm of bees to the owner of the land on which they settle, when the proprietor no longer pursues them, does not oblige before the sentence of a judge (Gousset, in art. 715). Cf. German Code, 833.

881. III. Tame animals remain the property of the prior owner, however much they wander. Hence, even when dead, they cannot be occupied by others, and natural fruits perhaps perceived from those occupied (for example milk, eggs, wool, etc.) must be restored.

But indeed: 1. if they inflict damage, the owner is held to repair it, insofar as theological fault or the sentence of a judge has intervened; - 2. if they are judged totally lost or abandoned, there is place for finding (cf. n. 886); - 3. if they are freed from danger, for example from a fire, there is place for a just stipend, but of themselves they must be restored. Cf. below n. 884.

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

887. Definition. By the name of accession is understood that right by which the owner of the principal thing becomes owner of the accessory thing, i.e. of all things that are produced by some thing of his, or are united to it naturally or artificially.

Division. Accession is either natural, or industrial, or mixed.

I. Natural Accession is had: 1. By birth of animals, when namely from your animal another is born: "for the offspring follows the womb." - 2. By fructification, i.e. production of fruits from land, without human industry. - 3. By alluvion, when by force of waters an increase is added gradually to your estate.

But if a notable part of land is suddenly added, which is called avulsion, its prior owner does not lose ownership if within a useful time he exercises his right.⁰⁴

888. II. Industrial or artificial Accession can happen:

1. By building: when someone builds on his own land from another's materials, or on another's land from his own materials, the building generally belongs to him whose land it is; but with due compensation made to him who built in good faith (III, 500). Nevertheless, concerning this matter, let the laws of each region be consulted.⁰⁵

2. By specification: when a new form or species accedes to preexisting matter, for example if from another's wool you have made a garment, from wood or gold a vessel, from grapes wine.

From old Law, the new species falls to the craftsman, the price of the material being paid, if this material cannot be reduced to the first form, for example a wooden vessel, etc.; and in conscience good faith is more probably required. - Otherwise, the thing falls to the owner of the material, for example a golden vessel (III, 496). See Ami du Cl., 1913, p. 303.

From the new Laws, in either case, the thing falls to the owner of the material, unless the work of the craftsman far exceeds the material in price.⁰⁶

3. By adjunction: when the thing of one is so joined to the thing of another that they make one whole; in which case, the whole composite pertains to him whose thing has itself as principal. Yet this man must make the owner of the accessory part unharmed.

Thus a usufructuary who has painted the walls of a house cannot erase the painting with detriment to the walls. - On the other hand, a painter who has expressed a beautiful image on another's canvas can, with the price of this canvas paid, retain the painted canvas for himself. Thus almost from the law of all.⁰⁷

4. By commixture: when solid things, and by confusion: when liquid things, belonging to diverse persons, are joined.

From the new Laws, the thing becomes common, and, unless something else has been agreed among the owners, must be sold at auction and divided. But if the part of one can be seen as quasi-principal, and otherwise far exceeds the others in price, the owner of this part can vindicate the whole for himself, with the price paid back to the others.⁰⁸

889. III. Mixed Accession happens especially by planting and sowing.

It is called mixed, because two things, i.e. nature and industry, coalesce into one. It is subjected to the same rules to which building is subjected.⁰⁹ Hence the very well-known verse:

Whatever is planted, sown, or built upon,
All yields to the soil, if nevertheless it has taken root.

890. Definition. Prescription is a mode of acquiring ownership or a right, or of freeing oneself from some obligation, within a certain space of time, under conditions defined by law.¹⁰

Division. Prescription is: 1. By reason of effect, either acquisitive (usucapion); through this a right is acquired; or liberative: this exempts from some obligation or from a servitude.

2. By reason of time, it is ordinary or extraordinary: a) Ordinary is that which is completed within the space of years below thirty. It is subdivided into prescription of long time, if it is prolonged for ten years (or above), of short time, if below ten years, or of shortest time, if below three years (in Germany, two years). - b) Extraordinary, or of very long time, is prescription if it reaches or exceeds thirty years.

891. Principle. Prescription is a legitimate mode of acquiring or of freeing oneself, having force in both the external and internal forum. This is the common opinion among jurists and theologians; and the reason for this is "because human law can well transfer ownership from one to another on account of the common good, for avoiding quarrels, and lest ownerships of things remain uncertain" (III, 504-517; H. Ap., X, n. 15). Wherefore the Angelic Doctor says: "If someone prescribes by possessing in good faith, he is not held to restitution, even if he knows after the prescription that the thing had belonged to another" (Quodl. 12, a. 24). Cf. Vermeersch, o.c., n. 270.

Note. 1. Since prescription rests on positive Law, it follows that it does not have force unless the conditions required by Law are accurately observed.

2. No one can prescribe against himself, because justice is toward another. Thus, for example, a beneficiary who for a long time has celebrated four Masses by error, although from the foundation of the benefice he is obligated to only two, will not therefore be held in the future to four (Scavini, II, 356).

3. Anyone capable of alienating can renounce prescription, not indeed future prescription, but completed or begun prescription, insofar namely as he can cede his own right. - But creditors and all others whose interest is involved can oppose a renunciation damaging to themselves.¹¹

We shall treat separately of acquisitive and liberative prescription.

For valid acquisitive prescription it is required that a prescriptible thing be possessed, with some title, and with good faith, for the time defined by law. - Hence those very well-known little verses:

You will not usucapt, unless these five things are yours:
Let there be a suitable thing, faith, title, possession, time.

892. A prescriptible thing is that which by its own nature, or from the disposition of laws, can be acquired and possessed by private persons. The reason is that prescription is a transfer of ownership; but those things that are of public ownership strictly taken cannot be alienated (III, 515). Cf. the things said in n. 852.

Therefore these cannot be prescribed: 1. Those things that are of divine Law, natural or positive. Thus, for example, the right of a father over a son; likewise spiritual rights, the right of perceiving tithes, of conferring benefices, etc., are never prescribed by laymen; but indeed the right of patronage can be. - 2. Sacred things, churches, cemeteries.¹² - 3. Things deputed to public uses, as a public road, a square, bridges, and similar things, unless their use among the people has ceased or unless another community used them. - 4. Things that the law itself, whether canonical or civil, declares imprescriptible. Thus from the holy Canons, not even by immemorial custom can the undoubted boundaries of dioceses be prescribed, or conditions attached to pious foundations¹³ (legacies of Masses, various burdens, alms to be made; but see below n. 1613); and from civil law, prescription does not run against dotal goods, against goods of wards, against the goods of a minor with respect to a tutor or curator, etc.¹⁴

Note. a) Prescription of the goods of the Church is subject to the rules of Canon Law alone (VI, 324). - b) Stolen things can be prescribed by him who in good faith received them under the conditions of law. Cf. n. 936.

893. For prescribing, possession is required (cf. n. 849). This is certain both from the Third Rule of Law in the Sixth: "Without possession prescription does not proceed"; and from the unanimous opinion of jurists, who affirm that possession is the foundation of prescription.

Possession, that it may induce prescription, must be: 1. dominative, i.e. it must be had with the mind of a proprietor, but not of a depositary, tenant, usufructuary, etc.; - 2. certain, i.e. concerning which there is no doubt in any way, otherwise good faith would be lacking; - 3. peaceful, so that there is not litigation concerning it; - 4. public, at least for the external forum, so that he against whom prescription runs can protest. Thus, for example, predial servitudes that are not apparent cannot be prescribed (especially if they are without title: in which case the matter is certain; otherwise, controverted); - 5. continued, i.e. not interrupted through the whole time defined by Law.¹⁵

894. Title generally is the cause on account of which we possess something, for example purchase, donation.

A fivefold title is distinguished: 1. true, which has all the conditions required for transferring ownership, for example purchase of a thing from its owner;¹⁶ - 2. colored, or apparent, which indeed has the appearance of a true title, yet from a hidden defect lacks effect, for example purchase of a thing taken away by theft; - 3. estimated, which from the adjuncts is prudently believed to have been present, although in fact it was not present: as if a son possesses from inheritance a thing that he thinks was bought by his father, although it was not bought; - 4. presumed, which namely cannot be demonstrated, but from peaceful and long-lasting possession is presumed to have intervened; - 5. vicious, which, on account of the defect of some required condition, is not a sufficient cause for transferring ownership, for example a donation extorted through grave fear.

A vicious title differs from a colored, estimated, and presumed title in this: that these, as they appear, are estimated, or are presumed, are a cause that in fact suffices for transferring ownership, while a vicious title, even as it is estimated, does not obtain a force of this kind, although it is falsely believed to obtain it.

I. For prescription a true title is not indeed required, but neither does a vicious title suffice. The reason for the first is that a true title with possession already suffices of itself for acquiring ownership, without prescription. The reason for the second is that a vicious title impedes the possession itself required by law. Hence that saying: "It is better not to have a title than to have a vicious one."

Thus acts of mere tolerance (for example as regards passage through fields), which are conceded to someone for the sake of friendship, neighborhood, or consanguinity, are not apt for this, that usucapion run.

II. For prescribing, a colored title suffices, and sometimes also an estimated or presumed title. Namely: 1. Colored title suffices when the law (as often happens) requires some title. - 2. Estimated or presumed title suffices (namely for founding good faith in the internal forum) when no title is required in the external forum (III, 505).

Moreover, in the external forum, title is not required: a) As regards immovable goods, if there is question of prescription (usucapion) of very long time, i.e. thirty or forty years: from common Law.⁰¹ - b) As regards movable goods, for example from French Law, if there is question of prescription at least three years long; for before the law this holds: "For movables, possession is equivalent to title."⁰² (cf. below n. 897, II).

895. By Good Faith here is understood a firm opinion by which someone prudently judges that the thing which he possesses is his own, although in reality it is not.

For the internal forum, good faith supposes invincible ignorance. Nevertheless it is not vitiated, in the present matter, by negligence in inquiring that is lightly culpable (III, 511, 625).

I. For legitimately prescribing, Good Faith is necessary, not only from the beginning, but within the whole time that is required for prescribing. This is certain from the Second Rule of Law in the Sixth: "A possessor of bad faith never prescribes at any time." And the reason is that it is repugnant to every right that someone vindicate for himself a thing not his own, or retain it for himself.

Hence, when good faith is lacking, prescription does not have force in conscience, even if civil law, in some case, for example in the general prescription of thirty years, did not expressly require good faith (Gousset, I, n. 723).

II. Good faith is required in one way in him who begins possession, and in another way in him who continues it.⁰³ For in the one beginning, positive good faith is required, as is certain from the things said concerning the necessity of title. Hence he who from the beginning doubts whether the thing is his own cannot begin possession. - But in the one continuing possession, only this is required, that bad faith not supervene, namely through consciousness of another's thing, as is certain from that rule of Law (c. fin. de Praescript.): "It is necessary that he who prescribes, in no part of time, have consciousness of another's thing."

Wherefore, if a doubt supervenes upon a possessor of good faith, prescription is not interrupted; and one continuing possession enjoys the benefit of the years of the one beginning, provided that meanwhile (at least for the forum of conscience) he employs diligence for inquiring into the truth (III, 504, 511).

896. QUAER. Whether a successor prescribes who doubts concerning the good faith of predecessors?

Resp. Affirmatively, if he has employed due diligence for solving the doubt. The reason is that in doubt bad faith must not be presumed, at least ordinarily and of itself; for no one is presumed evil unless it is proved.

From the new Laws, a particular successor (not universal) in possession can begin prescription, even if the predecessor was in bad faith.⁰⁴

897. Things to be noted beforehand. 1. The time required for prescription is not to be computed from hour to hour, but from day to day, nor does prescription become valid before the last day has entirely flowed by. - 2. For completing possession, the actual possessor can add to his own possession the possession of his author or predecessor, by whatever title he succeeded to him, as we have said above.

Now the time required from various laws is as follows:

From Roman (and Canon) Law: 1. A movable thing with title (colored or estimated) is prescribed after three years; without such title, only after thirty years. - 2. Immovable goods of private persons are prescribed without title after thirty years; with title after ten years among those present, and twenty among those absent. But if someone is partly present and partly absent, the years of absence are to be doubled. - 3. Goods of minors after thirty years; goods of pious places after forty years; goods of the Order of St. Benedict after sixty years. - 4. Goods of the Roman Church or St. John Lateran, likewise goods of the Cistercians and Mendicants, only after one hundred years. - 5. Stolen things, received in good faith from the hands of a thief with title, are prescribed after thirty years among those present, and after forty among those absent. But the thief never prescribes, even if through forgetfulness he finally comes into good faith (III, 515).

II. From French Law⁰⁵ the following prescriptions are given: 1. Prescription of thirty years, than which a longer one is not admitted. It is most universal: for all actions, whether real or personal, even of moral persons, are extinguished after thirty years, without defect of title or good faith being able to be opposed. Possession, however, must be legitimate, in the sense in which we spoke above (n. 893). - 2. Prescription of ten or twenty years, by which immovable goods are prescribed, yet with title and good faith. Ten years are required and suffice if he against whom prescription is made is present, i.e. if he dwells in the territory of the court of appeal in which the immovable is situated. But twenty years are required if he is absent (or proportionately, if he has been partly present and partly absent). - 3. Prescription of three years, which with good faith suffices in every case for acquiring a movable good (cf. n. 895). - 4. Prescription that some call instantaneous, namely by which movable things, not stolen nor lost, immediately after delivery are legitimately possessed and acquired by a possessor of good faith; because for movables possession is after the manner of title, and because the law concedes the space of three years only for reclaiming a stolen or lost thing (cf. n. 885). Whether these things have force in conscience was formerly sharply disputed; today it is commonly affirmed.⁰⁶ Wherefore in this case, a possessor of good faith cannot be bound to restitution. But one must diligently advert whether the thing is in reality movable in the sense of the law (cf. n. 852).

III. From Italian Law.⁰⁷ Prescription of ten years has force also among the absent. Two years, in place of three, are granted for reclaiming a stolen or lost thing. - The rest agrees with French Law.

IV. From Spanish Law.⁰⁸ Prescription of thirty years is admitted, as in French Law; likewise prescription of ten or twenty years for immovable goods. Those are reputed absent who live outside the kingdom, or in an overseas region. For immovable goods three years are required with good faith, or six without another condition. The rest is as in French Law.

V. From Austrian Law.⁰⁹ 1. The ordinary time: a) as regards movable things to be usucapted, is three years; - b) as regards immovable things and predial servitudes, likewise three years, if they are inscribed in the public tables in the name of the usucapting possessor; otherwise, thirty years. - 2. Extraordinary time: a) against the fisc, churches, and other communities that enjoy the right of corporation, six years are required in place of three years; and in place of thirty years, a space of forty years; - b) against one voluntarily (but without fault) absent from the province where the thing is situated, a year of absence is computed as half a year; - c) for one immediately procuring a movable thing for himself from a vicious or bad-faith possessor, or from one not able to indicate his author, the space of ordinary time is doubled.

VI. From German Law.¹⁰ a) For usucapion of movable things it is required that someone have possessed the thing in good faith as his own for ten years. - b) Where the law concerning the land register has been perfectly introduced, usucapion of immovables is not admitted except in the case in which someone, inscribed in the land register as proprietor of the land, has peacefully possessed this immovable thing as his own for thirty years. - Indeed peaceful possession alone (without inscription) suffices after thirty years, provided that then an invitation be made to those who could have rights. With no one protesting, ownership is acquired through inscription. - c) Instantaneous prescription is also given, as in French Law, but under diverse conditions. See below n. 936.

VII. From English Law, certain prescriptions indeed are admitted with respect to immovable goods (and debts); but "movable possessions cannot be acquired by title of prescription."¹¹

898. It is asked: How is prescription interrupted or suspended?

Resp. 1. It is interrupted, so that it must be begun anew, either naturally, if the one prescribing loses possession (namely natural possession), or if bad faith supervenes upon him; or civilly, if litigation concerning the thing is moved, unless the one moving it does this unjustly for interrupting prescription. - But it is not interrupted if the thing possessed is transferred from one to another, for example by purchase, donation, etc.¹²

2. Prescription is suspended, or sleeps, when an impediment is placed before it so that it does not proceed further, yet in such a way that, when the impediment has been removed, it continues without any other detriment than the time of sleeping.

This happens in a twofold mode: a) when judgments cannot be exercised, for example in time of war or plague in certain kingdoms;¹³ - b) when he against whom prescription is made cannot pursue his right. Thus prescription does not run against interdicted persons, against a church lacking a rector. Thus from Roman Law; otherwise, however, from the new laws¹⁴ (cf. n. 892, 4).

Note. Notwithstanding legitimate prescription, there is sometimes conceded (for example to minors for four years after majority) the benefit of restitution in whole, i.e. rescission of the prescription to be pronounced by a judge.¹⁵

899. Things to be noted beforehand. 1. There are laws that deny only judicial action, and there are others that declare that the right has been extinguished.

2. Liberative prescription profits someone in a twofold mode: a) either on his part there are true debts, or also an obligation of suffering a servitude, and then liberative prescription prevents the other from being able in conscience to reclaim his right; - b) or he himself committed only juridic faults, and then liberative prescription closes every way to him who would wish to seek indemnity.

3. For liberative prescription (as also for acquisitive) good faith is required: a) If true debts are present, positive good faith must be present. - b) As regards claims that are founded on juridic fault, in a petitory action before a judge (or that suppose the use of some servitude continued after another), negative good faith suffices; in other words, it is enough if you impede the other neither directly nor indirectly from the exercise of his right of making a claim. But you are not obligated to warn him that he should use his right.

4. Legitimate time is also required. Authors, especially modern ones, distinguish: a) Prescription of very long time, or thirty years, by which all debts not reclaimed for thirty years are extinguished, likewise usufruct when he who had the right does not use it for thirty years. Rents can also be extinguished, not only as regards annual revenues, but also as regards the right itself or capital (in Austria,¹⁶ however, forty years are required against the fisc and corporations). - b) Prescription of long time, or ten years, by which actions for nullity or rescission of contract are extinguished, when law does not establish a shorter term.¹⁷ - c) Prescription of short time, or five years (in Germany four years, in Austria three years), which regards sums to be paid periodically by way of civil fruits.¹⁸ - d) Prescription of shortest time, for example two years for the stipends of procurators, the case being finished; one year for the stipends of physicians, servants, merchants, etc.; six months for the stipends of workers, guests, etc.¹⁹ These are especially various in various regions. In German Law²⁰ no prescription is admitted against rights related in the land register, or against family rights.

900. I. Liberative prescriptions both of very long and long time, and of short time, have force in conscience, provided good faith has persevered through the whole time. Thus commonly, from the reasons adduced for prescription in general (III, 517). Cf. above n. 890.

Note. As regards prescription of short time, controversy is not lacking. Cf. Tanquerey, II, n. 262; Lehmkuhl, Das Burgerl. Gesetzbuch, ad § 194 and 929.

901. II. Prescriptions of shortest time do not have force in conscience, nor do they constitute anything except a presumption of payment made, as all confess. - Reason: 1. because from the laws themselves it is clear that the legislator did not have the intention of transferring ownership, but only of denying action in the external forum, lest the administration of justice be rendered too difficult; - 2. the legislator cannot have this intention, because as regards these prescriptions of shortest time good faith is often lacking, nor is the reason of the common good present, since this would conduce to oppressing the weak and poor.

"A debtor, therefore, who is certain that payment has not been made, is in no way exempted from the obligation of payment," except after prescription certainly sufficient, which must be judged from the individual Codes and jurisprudence (III, 515). - If someone, however, for example a successor in good faith, after the time assigned by law has passed, begins to doubt, for example, whether his author paid, he can use the presumption of law, unless omission of payment is duly proved. Noldin, II, n. 407; Pelt, o.c., p. 112.

The fact by which dominion is justly acquired is called a mode of acquiring, and indeed original if the thing which is acquired by that fact was no one's at the time of acquisition; but derivative if at that time it was in the dominion of another. - Five modes of acquiring dominion can be enumerated: occupation; prescription; accession; contract; succession, whether legal or testamentary. Concerning the two latter we shall treat in the Treatise on Contracts.

201. State of the question. - In the present question, as is clear, the matter treated is dominion over goods distinct from man himself, which are either the effects of his faculties and operations, or the external goods of fortune. But the mode of acquiring dominion is diverse according to the title. A title is a cause apt of itself to confer dominion: it consists in some fact furnished with the authority of law, by which a thing is acquired; for from law it has that it is a title of dominion, since every right arises from some law.

Some modes are primitive or original (porspronkelijke), by which, at the origin of the human race, the first dominions were acquired and according to which the first division of things was made, when as yet nothing was possessed: these are production (or labor), as to the fruits of human intellectual and bodily operations, and occupation, which includes some labor, as to external goods;¹ all other modes are derived (afgeleide) from these, which they suppose, whether they be legal, because they arise either from natural law and from the nature of things, as invention and often accession, or from positive law, as prescription; or whether they be conventional, from the free convention of men, as succession and contract.

¹ Thus also Pius XI, in the encyclical Quadragesimo anno, May 15, 1931, II, 1 at the end.

But in our times, because there is no longer question of the first acquisition of things, primitive or original modes are called those by which right and dominion are acquired simply, namely, a thing of no one which never had an owner or at least actually does not have one or has ceased to have one: these are principally occupation and labor, to which are connected, from the nature of the thing, invention and accession, and from civil law, prescription. But derivative modes are called those by which dominion is transferred, namely, a thing which is under some dominion and the right to it is transmitted to another, and the dominion of some thing is derived from one to another: these are succession and contract.

Concerning the mode of acquiring dominion in the effects and fruits of intellectual and bodily labor nothing special occurs to be said; hence we must treat only of the modes of acquiring dominion in external things. But the derivative modes are considered in the third section of the third part of the treatise, where contracts are treated; hence we shall speak only of the primitive modes, namely: 1) of occupation (toeeigening); 2) of invention (pntdekking); 3) of accession (aanwas of natrekking); 4) of prescription (veraring). But labor is reduced to one of the preceding: when it is occupied about one's own thing, to the right of accession; if about another's thing, it is referred to contract; if about a thing of no one, it presupposes occupation and is included in it.

202. Diverse things to be acquired are distinguished:

1. vacant things² (onbeheerde goederen), which have never had an owner, whether they are animate, as wild animals in the woods, or inanimate, as a jewel at the bottom of the sea;

² Thus Noldin, Van Roey, Prummer, etc. Entirely conformably to French law, art. 539 C.C., which distinguishes between vacant goods and things of no one - and abandoned successions or goods of the deceased without an heir. On the contrary, others call only these latter goods vacant.

2. abandoned things (verlaten goederen), which have had an owner, but actually do not have one, because the owner in some way has abdicated actual detention of the thing from himself, as treasures formerly hidden, fruits which are left after the harvest has been completed, goods of a deceased man who did not institute an heir or which the heirs have renounced;

3. lost or mislaid things (verloren goederen), which even actually have an owner, but one unknown or uncertain, because, against the will of the owner, they have fallen out of his possession, as a gold ring found in the street.

Things, with respect to dominion, are of two kinds. Some are appropriated, that is, they have a proper and determinate dominion. Some are common or quasi-common, namely such as are held to have no lord of themselves, as are wild beasts in the forests, fish in the rivers, etc. And in accordance with this diversity of things, the ways of acquiring their dominions are diverse. Of things that are appropriated to someone, dominion is acquired by the will of the lord or by the authority of the law. Of things that belong to no one, dominion is acquired by first occupation.

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.

I. Three kinds of goods are to be distinguished. Some are those which no one has ever possessed, such as gems and pearls. Others are treasures, which by the law of nature belong to the finder. Of the third kind are lost goods, which have a lord near at hand; and the finder who retains them commits theft, if he have knowledge of the lord, or could have it. If nevertheless they have long lacked a lord, they are held as derelict, and belong to the first finder.

II. The goods of the shipwrecked are held by no one as derelict; those who usurp them when found sin, and are bound to restitution, and very often incur the excommunication of the Bull In Coena Domini. Vacant goods are those which a man dying without a testament leaves, and who has no necessary heirs. These are wont to be applied to the treasury. The goods of pilgrims dying without a testament the bishop ought to lay out on pious works.

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.

V. QUESTION I. What is to be said of dominion by force of alluvion, and the like? ANSWER. Rivers induce alluvion when they pluck away a part from one estate and join it to another; which can happen little by little imperceptibly, or in an instantaneous and manifest manner. The lord of an imperceptible alluvion is he whose estate is increased; but on the contrary the lord of a perceptible and manifest one is the possessor of the estate from which the earth was taken, unless he hold the earth torn away as derelict. But concerning this alluvion the laws are to be consulted.

VI. Accession is that which adds something to your thing. It is twofold. The one is natural, such as are the offspring of a handmaid, of flocks, of plants which are born on one's own land. The other is artificial, or industrial, such as is that which is made by painting, by building, by writing, by weaving in, by grafting, and the like. The lord of the handmaid, of the land, and so forth, is the lord of the fruits.

VII. Another mode of acquiring dominion is specification, which occurs when out of the material of another lord a new species of thing coalesces: as wine out of grapes, oil out of olives, a vessel out of silver. Concerning these there is fuller discourse in Book 2, On Justice, title 1, § 25. When out of two a third one thing is made, it is called confusion, and the dominion becomes common; but it is commixture when things are so mingled that, the same parts remaining, they constitute one third thing, as when moneys, grains, and the like are mingled. When mixed bodies can be discerned and separated, then they pertain to their respective lords. When on the contrary the aforesaid bodies are so mingled that they can neither be discerned nor separated, you become their lord; you are nevertheless bound to pay the price of the other's thing mingled with your own.

VIII. QUESTION II. How is dominion acquired by force of prescription, or usucapion? ANSWER. Prescription is twofold. One draws its origin from the natural law itself; the other has been introduced by positive law. Of the first now, of the other afterwards. From the same fount whence the dominions of things flowed forth, thence usucapion, or prescription, also proceeds. By natural and permissive law all things were common, and nature itself inclines to this community, if it be considered apart from its innate appetitions. For the rest, nature being considered as it now is, division was necessary. Prescription therefore takes its origin from the law of nature itself, and its execution was committed to the law of nations. For this prescription is the basis and safeguard of peace and of mutual tranquillity among men. For the division of goods could not serve reciprocal concord, unless long-lasting possession rendered possessors secure and safe. For this security acquired by usucapion being taken away, dominions would always remain uncertain and in suspense.

IX. That this prescription is confirmed by divine law is clearly gathered from divine Scripture itself. For these words are had in Judges, chapter 11: Why in all this time hast thou attempted nothing about this recovery? Jephte therefore alleged against the Ammonites, besides the title of war, a possession of three hundred years; and objected to the Ammonites that in so long an interval they had never attempted anything to recover the land as their own. This prescription introduced by the law of nations has no other conditions save long-lasting possession and good faith.

X. QUESTION III. What is prescription undoubted by the civil law? ANSWER. It is the acquisition of dominion and the extinction of another's right, with the continuation of possession in good faith for the time prescribed by law. This definition all admit. That prescription, or usucapion (for although some say that prescription transfers movable things and usucapion immovable things belonging to another to a second party, yet more commonly this distinction is rejected, and the one is used for the other), may adjudge dominion to you and extinguish another's right, it must bring with it a continued possession begun in good faith, with a title either real or presumed, and for the time predetermined by law.

XI. Hence it is that authors commonly assign four conditions necessary to prescription. First is possession, of which it has been spoken. Second is a title probably presumed. For if a true and certain one be present, there is no need of prescription. A title therefore is necessary, either presumed, which cannot be proved but must be presumed; or coloured, which can be proved. That is called coloured which is reckoned true, although in the thing itself it be false. Within the space of twenty or thirty years a coloured title must be proved, and unless it be proved, prescription is not admitted. After forty, or fifty, or a hundred years a title is not proved, but presumed. Third is the condition of the amount of time, concerning which authors go off into various parts. The more common opinion is this. For the usucapion of movable things three years among those present and four among those absent are required. The Roman Church alone is excepted, against which, whether in movable or in immovable things, no prescription is admitted, except after the very longest time of a hundred years. Against wards, so long as they are wards, no prescription prevails, whether of movable or of immovable things. The time necessary for prescription must be continuous. Here the continuation of time can fail in two ways: first, while it is interrupted by opposed acts; second, while the prescription sleeps. And it is said by the jurisconsults to sleep when on account of impediments it cannot run, as in time of war, of plague, and the like.

XII. The last and chief condition is that which they call good faith, by which a man is persuaded that the thing he possesses belongs to him, or at least is ignorant that the thing is another's. Authors distinguish a twofold ignorance: one of right, the other of fact. If you believed that Sempronius could sell you his own thing, you would labour under an ignorance of right. If you believed the thing to be his, which in truth it is not, there would then be an ignorance of fact. All confess that ignorance of fact does not impede prescription.

XIII. Theologians dispute whether an invincible ignorance of clear right (of vincible ignorance, since it cannot stand with good faith, there is no dispute) is an obstacle to prescription. De Lugo, Castropalao, and others deny it. But the more probable opinion affirms it, and the text proves it which is had in the Digest, title 6, law 4, and is of this kind: ignorance of right is denied to profit in usucapion; but that ignorance of fact profits is established. That law, like also the other which is had in the law Sumatur, Digest, On Usucapions, has place not only in the external forum, but also in the internal. Wherefore altogether vain and inept is the distinction of adversaries, by which they say that the laws cited have place in the external forum but not in the internal. For those laws, which set forth the law of nature and of nations, oblige no less in the one forum than in the other.

XIV. An heir who receives an inheritance from an author of bad faith cannot prescribe, as all teach, because an heir bears the person of the deceased, and constitutes one person with him. But he who in good faith receives a thing from an author of bad faith by another title besides inheritance — say of purchase, of legacy, of donation — is able to prescribe, as the common opinion teaches.

XV. Prescription endowed with all its conditions acquires dominion for the one prescribing, not only in the external forum but also in the internal, as the more common and true opinion teaches: since indeed prescription takes its rise from the law of nature itself, and is confirmed by the law of nations and by divine law, as consonant with the public good, with peace, and with tranquillity. It is coeval with the very division of things, as it were the safeguard and supplement of the same.

XVI. QUESTION IV. What of the dominion of children subject to the paternal power? ANSWER. There are four kinds of goods which can pertain to such sons. Castrensia, quasi-castrensia, adventitia, and profectitia. Castrensian goods take their name from war, or the camp, and are conferred under the title of military service. Quasi-castrensian are those which sons of a family obtain by exercising public offices — say the offices of physician, advocate, procurator. Those which sons of a family obtain by title of inheritance, of a legacy left not out of regard for the father, of trade, or of succession to maternal grandparents, are called adventitious. But those which sons obtain out of regard for their parents are called profectitia.

XVII. Sons constituted under the paternal power possess full dominion, both direct and useful, in goods both castrensian and quasi-castrensian, and are able to alienate, distract, and give them, without consulting their parents, after puberty attained. But before puberty the administration lies with guardians or parents, without whose knowledge they cannot alienate them. In adventitious goods sons of a family possess direct, but not useful, dominion. In profectitia goods parents have dominion both direct and useful. Let it suffice here to have touched briefly upon justice and dominion taken in general.

IF Prescription is legitimate, acquired things may be retained; but not, however, if the necessary conditions are lacking, as St. Bonaventure teaches in the Apology for the Poor, chapter 1 of the fourth response.

THE FIRST is, that the thing be prescriptible. For there are certain things which by law cannot be prescribed, as Sylvester teaches, verb. Praescriptio, 2. Covarruvias, relect. in regul. possess. p. 2. Juan Medina quaest. 16. de rerum restit. Valencia quaest. 6. punct. 5.; for a man cannot be prescribed, l. sola C. de longi temporis praescript. Nor the right of tithes, or other sacred things by Laymen, c. Cansam, extra de Praescript. Nor a fugitive slave, §. sed aliquando, Instit. de Usucapion. Nor exemption from obedience to one's superior, c. Cum non liceat, extra de praescript. Nor things held in common and assigned to public use, that is, of the Republic, such as public roads, l. 1. Usucapionem, ff. de Usucapion. Nor the boundaries of Bishoprics, provinces, and parishes, 16. quaest. 3. cap. Licet, et cap. Inter. et cap. Super eo, extra de Paroch. Nor a Pension, or Canon, which ought to be paid to the republic for lands, 16. quaest. 4. §. Potest. Nor possessions of fields held by colonists, l. Male agitur, C. de Praescript. triginta, vel quadraginta annorum. Nor tributes owed to the Prince, l. Comperit, C. eodem titulo. Nor things which are forbidden to be alienated by Law, or Canon, or by the deceased, or by pact, as Sylvester holds, verb. Praescriptio, 2. num. 13. and Valencia quaest. 6. punct. 5. Nor things which someone possesses Precariously, and not as true Lord, l. Certe, §. Is qui rogavit, ff. de Precar. Nor things bought from a Prodigal, or a luxurious man, or a gambler. Nor things which the Lord, through probable ignorance, does not know are possessed by another, as Sylvester explains, num. 17. Nor the goods of an excommunicate, so long as he does not stand in the way of being freed from excommunication, as Sylvester notes, num. 19. and Valencia: See them on all these matters, also Covarruvias, loco citato.

THE SECOND condition is, that the thing be actually possessed by the one who is going to prescribe it, for without possession there is no prescription, as the rule of Law has it, nor is it acquired by usucaption, as is clear from l. sine possessione, ff. de Usucapion.

THE THIRD condition is, that the thing be possessed by a legitimate title, true, or probably presumed, such as a title of inheritance, purchase, donation, etc. cap. si diligenti, extra de praescript.

THE FOURTH condition is, that the thing be possessed in good faith, in conscience believing it to be one's own, cap. Possessor, de regulis iuris, et cap. Vigilanti, et cap. si diligenti, extra de Praescript. By which canons certain civil laws are considered revoked, which permitted prescription with bad faith, as the Doctors commonly hold in cap. Finali.

THE QUESTION, however, is: whether mere doubt that the thing belongs to another impedes this good faith.

SOME say that it is removed; others, however, not; see them in Valencia, who follows the negative opinion. The reason is, because, although one in doubt cannot begin to possess; yet, while he possesses, The condition of the possessor is the better one.

THE FIFTH condition is, that possession have lasted for as long a time as is necessary according to the prescription of the laws. For to prescribe movable things—which may rather be called Usucaption than Prescription—a possession of three years suffices between those present, and of four years between those absent, as is clear from l. Quas actiones, C. de Usucap. But to prescribe Ecclesiastical immovable things, a possession of the very longest time is required, namely of thirty years between those present, and forty between those absent, as is clear in l. Quas actiones, et 16. quaest. 3. Indeed, even to prescribe the goods of the Roman Church a possession of one hundred years is required, l. Quas actiones, C. de Usucap. et 16. quaest. 3. cap. ult.

LIKEWISE, to prescribe temporal immovable things: if indeed they were first acquired by theft, or by violence, there is necessary in the heirs of the thief a possession of good faith of thirty years; at least between those present, and forty between those absent, as Sylvester says, v. Praescript. with Valencia, Et l. et omnis, C. de Praescript. triginta annorum. But the other things acquired by a good title are prescribed by possession of long time, namely of ten years between those present, and twenty between those absent, l. Quas actiones, C. de Usucapion. Et l. mala fidei C. de Praescript. longi temporis.

THE SIXTH condition is, that good faith not be interrupted throughout that whole prescribed time, cap. Illud autem, et cap. Quoniam omne, de Praescript. Therefore, if any of these conditions is lacking, the prescription must be judged invalid, and restitution made. But if all these are present, the prescription will be legitimate; as the Doctors commonly teach, Ven. Bonaventure, especially St. Thomas, quodl. 12. art. 25. Scotus in 4. dist. 15. quaest. 3. Paludanus eadem dist. quaest. 2. Durandus in 4. dist. 41. quaest. 4. art. 1. ad 1. and others in Valencia. And it is clear from the laws above, and C. Nos Sanctorum, and C. Quoniam omne, de Praescript. You have nearly all this also in Ven. Bonaventure, in the Mirror of the Soul, chapter 1, and in the places cited 1. 2. disput. de Conscientia. And in 4. dist. 15. p. 2. artic. 2. quaest. 1.

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.

Caius bought an antique cabinet from a dealer in old goods and handed it over to Julius, a workman, to be repaired. But while Julius was applying himself to the work, he found in a certain secret compartment a banknote whose value was five pounds sterling; from various indications it was evident that the money had lain hidden there for a long time, but Julius doubted whether he could retain it as his own or not. Hence it is asked:

1. Is finding a title of ownership, and under what conditions?

2. Is the title of the former owner of the thing found extinguished by prescription?

3. What is to be said of the case?

1. Is finding a title to ownership and on what conditions ?

Finding of things of value which have no owner is a valid title to ownership if the finder takes possession of them with the intention of making them his own. Things recently lost, which have an owner although he is unknown, may be taken possession of by the finder, who should then use ordinary diligence to find the unknown owner. If the owner be discovered, his property must be restored to him. If he can not be discovered, after a reasonable time the property belongs to the finder.¹

1 Manual of Moral Theology, vol. i, p. 371 and following.

2. Is the title of the previous owner of lost property destroyed by prescription ?

The answer to this question will depend on the law of the country. Prescription of a longer or shorter time gives a title to movables according to canon law and the civil law of most modern nations. According to English law ownership in movables can not be acquired by prescription, which is only recognized as a title to certain rights for the most part in another person’s land.

3. The case. Caius bought an old bureau and sent it to a workman, Julius, to mend. Julius found in a secret drawer of the bureau a five-pound note which had obviously been there for a long time. Julius was in doubt as to whether he could keep the note.

We may suppose that the note was in the drawer when Caius bought the bureau, and that neither seller nor buyer knew of its existence. From all appearances it had lain there for a long time. If there was any reasonable chance of discovering the owner of the note, however long ago it was lost, steps should be taken for that purpose. But usually it is not easy to trace the history of such pieces of old furniture, and if this is true of the bureau in question, it would be practically impossible to find the original owner of the bank-note. Julius may, then, say nothing about his find and keep it.

171. Thesis XV. We have a right to own property.

Explanation. The ownership here spoken of is not absolute: it is dependent on God.

Proof. We have a right to live, indeed we are bound by duty to our Creator to preserve our lives; hence we have a natural right to the means necessary to preserve life. But the ownership of property, i. e., the holding, using, and disposing at will of material goods to the exclusion of other men, is a necessary means for the preservation of life. Therefore, we have a right to own property.

172. Thesis XVI. We have the right to increase or lay up property.

Proof 1. Our right to life not only exists for the present hour or day, but it also extends into the future; hence we have the right to the ordinary means for prolonging our lives by providing betimes for future wants, such as sickness, old age, or the dependence upon us of other persons. Now, this implies a right to increase our property beyond present needs. Therefore, we have a right to increase or lay up property.

Proof 2. All men, considered specifically, or according to their common nature, are equal; therefore, no one is bound either to labor for another or to surrender the results of his labor without just compensation. Yet this a man would be forced to do, unless rights to property were lasting; because, if a claim to property had been established, and that claim could not continue, the labor which the claimant had expended in obtaining or developing the property would pass without compensation to another man.

173. The principles explained in the preceding paragraphs apply to landed property just as well as to other material goods of a less stable character. Yet the right of private individuals to own land has been, of late years especially, vigorously denied, as unjust and opposed to the natural law. This doctrine, or land theory, has had for its most prominent champion in our own country Mr. Henry George, who declares (Progress and Poverty, B. VI., C. II.) that private ownership in land is the chief source "of the unjust and unequal distribution of wealth apparent in modern civilization." He finds only one remedy: "We must make land common property." His reasonings are as ingenious as his claim is bold and his language forcible; but they are full of sophistry. He begins by granting that if the remedy is a true one it must be consistent with justice. But he fails in his earnest attempt to prove this for his land theory. In striving to establish the justice of his claim, he does not hold the teaching of the Communists that any kind of private property is unlawful. On the contrary, he refutes this teaching with much ability and force. "What constitutes," he asks (B.

VII., C. I.), "the rightful basis of property? What is it that enables a man to justly say of a thing, 'It is mine'? From what springs the sentiment which acknowledges his exclusive right as against all the world? Is it not primarily the right of a man to himself, to the use of his own powers, to the enjoyment of the fruits of his own exertions? Is it not this individual right which springs from and is testified to by the natural facts of individual organization — the fact that each particular pair of hands obey a particular brain and are related to a particular stomach; the fact that each man is a definite, coherent, and independent whole — which alone justifies individual ownership? As a man belongs to himself, so his labor when put in concrete form belongs to him.

"And for this reason, that which a man makes or produces is his own, as against the world — to enjoy or to destroy, to use, to exchange, or to give. No one else can rightfully claim it, and his exclusive right to it involves no wrong to anyone else. Thus there is to everything produced by human exertion a clear and indisputable title to exclusive possession and enjoyment, which is perfectly consistent with justice, as it descended from the original producer in whom it vested by natural law. The pen with which I am writing is justly mine. No other human being can rightfully lay claim to it, for in me is the title of the producer who made it. It has become mine because transferred to me by the stationer, to whom it was transferred by the importer, who obtained the exclusive right to it by transfer from the manufacturer, in whom by the same process of purchase vested the rights of those who dug the material from the ground and shaped it into a pen. Thus my exclusive right of ownership in the pen springs from the natural right of the individual to the use of his own faculties."

The theory, however, proves too much. If the principle were true that right to ownership can be established only by transforming labor, man could own nothing, for he can produce nothing without material to work upon. The iron or gold of which the pen is made is not produced by man; hence, in the very first instance, appropriation by occupation must be admitted as a true title to the raw material. Mr. George is, therefore, entirely mistaken when he goes on to say: "There can be to the ownership of anything no rightful title which is not derived from the title of the producer." In his elaborate development of this false proposition, on which his theory of the injustice of private ownership in land chiefly rests, the same fallacy is ever recurring, namely, the confusion of production with any exercise of the human faculties. The explorer does not produce the desert land which he discovers; and yet he acquires a clear title to it on Mr. George's own principle that he exerts his faculties in its acquisition. Mr. George's theory is, therefore, unsound; he totally fails to prove the injustice of private ownership in land. His attacks on land owners are not justified, and are consequently unwise. For, as he himself says: "That alone is wise which is just, that alone is enduring which is right."

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.

Proof 1. Society can make such laws as promote its end — the general welfare of the community — provided it does not violate any prior rights. But such assignments, or grants, made on proper conditions, contribute to the general welfare and violate no prior rights. For such a measure promotes enterprise, industry, and public spirit, without which a high degree of civilization would be difficult, if not impossible.

Proof 2. A State can dispose of its property for the common good. This it does by allotting lands as a reward to soldiers who have fought for their country, or for the purpose of encouraging settlers to clear and improve the ground, or as an inducement to corporations to make roads, build bridges and other public works, and thus open up the country to trade and travel.

179. Thesis XX. Communism and Socialism are unjust and injurious.

Explanation. Communism denies the right of private ownership and declares that all property is by nature positively common. Socialism demands that all productive property shall be given over to the State, which would thus become sole proprietor of land, manufactories, railroads, etc., and sole distributor of the compensation due to every individual member of the commonwealth for his labor. Now we maintain that Communism and Socialism, if introduced as general systems in the present order of things, would be unjust and injurious.

Proof. The fundamental principle of Communism is false, namely, that by nature all goods were intended for mankind to be positively common, so that no one could justly appropriate to himself anything beyond immediate pressing wants, without the consent of the other members of the community. The absurdity of this view is manifest from the unnatural dependence in which man would be thereby placed. Another false principle made use of by both systems is the absolute and entire equality of all men. In the abstract and before the law, all men are said to be equal; but in the concrete, no two men are exactly equal. No two men have equal powers of body and mind, equal abilities for government or trade, the same tastes and dispositions, even the same rational wants.

Both systems would begin by depriving men of the fruit of past labors; both would confiscate the earnings of one man for the benefit of others without compensation, thus violating a great natural right. Moreover, it is impossible for either system, judged on economic grounds, to last, or to attain even a fraction of the fanciful plenty so freely promised by its advocates. The latter seem to base their calculations on the utopian dream, that, in the new Communistic or Socialistic Republic, men shall lose their selfishness and be free from their passions, and will freely practise heroic self-denial and self-forgetfulness; that, in other words, men shall be transformed into angels. Yet these same leaders generally ignore or repudiate religion, the wellspring of self-sacrifice, and aim at sweeping away the rights of Church and family.

182. The chief modes of acquiring property are the following:

1. First occupancy: that is, taking possession of any material object that is really without an owner. (No. 174.) Domestic animals, even when they have strayed far from their owner, remain his property; but wild animals, though captured and tamed, if once they have regained their native liberty, are considered as belonging to no one till captured again, when they become the property of their new captor.

2. The finding of lost articles. These have an owner to whom they must be returned, if he can be discovered with reasonable effort. If, however, the owner cannot be discovered, the articles become the property of the finder. When hidden treasures of great value are found in civilized lands, their ownership or apportionment is settled according to existing laws that have been enacted for such cases. The goods of those who die intestate, and without natural heirs, are to be disposed of as the laws direct.

3. Accession is a title to new property that is added to my former possessions, either naturally, e. g., by birth, as with the young of cattle, or by alluvion, as by deposits of soil on a river bank; or accidentally, or even designedly, as when another plants or builds on my grounds, or in other ways improves my property. In these instances, disputed claims may arise which the civil law is to decide.

4. Prescription is a title to ownership of property based on the fact that it has been held in quiet and bona fide possession for the space of time appointed by the law. This supposes: 1. That the property is such as can be lawfully acquired by a private person. 2. That the person in possession has honestly considered it all along as his property. 3. That he has remained in undisputed and uninterrupted possession during the required time.

The common good demands that claims to property reaching back beyond a reasonable period should be disregarded, in order that ownership may be settled on a solid basis.

Although Mine and Thine are, according to an ancient Father of the Church, cold and unsympathetic words, yet it is not likely that they will be banished from men’s speech. They express facts and rights which are likely to be unchanged as long as human nature remains unchanged. In an ideal state of society, in which every member was perfect, it might be possible to have and enjoy all property in common, and to have no private ownership. But as long as most men will not work, unless to supply their personal needs, or those of their families, as long as most men are covetous and strive to get all they can for their own comfort and convenience, as long as most men are selfish and take little care of what belongs to other people, it will be impossible to do without private property. And so one of the main functions of society is to defend private ownership. Private ownership is recognized and defended wherever social life exists. As one of the great springs of effort and exertion it forms a valuable factor in the world’s progress. Society which advances so slowly could not afford to dispense with so powerful an aid of advancement. Even if it wished to do so, the necessities of human nature as it exists would prevent it. Not only progress, but peace and security require that each should have his own. If each one ‘is protected in the peaceable possession of what his efforts have won, he has no right to complain; but there would be only too plentiful grounds of complaint and quarreling if the strong and capable were compelled to share on equal terms with the puny, lazy, and incompetent.

And so ownership is necessary for human nature ‘as it exists. It does not owe its origin merely to positive law, it is anterior to positive law, which supposes it and safeguards it. Nature herself gives a man the right to own what is necessary and useful for his many wants; society, for the common good, defends that right. ,

Private ownership then is one of those primary rights which flow from nature herself. As a man has from nature herself the right to live, so he has also from nature the right to own what is necessary and useful to preserve his life.

Let us try to get a clear idea of what the right of ownership means and implies. What does a man mean when he says that this house is his? He means something quite different from what he means when he says that this boy is his son. In the latter case he means that he is the boy’s father; which fact gives him the right and the duty of bringing the child up; he has the right, because he is the boy’s father, to educate him, and to direct him in everything until he is able to look after himself. But this right is chiefly for the benefit of the boy, not for the benefit of the father. The boy is a human being, a person, a creature with an intellect and free will, with a destiny of his own. He is free and independent, he does not exist merely for the benefit of his father, nor merely for the benefit of any other human being, or collection of human beings. He is a man, a person, like they are; he has his own separate end and destiny, which is not merely subservient to others. And so, though the father calls the boy his, his rights over him are not those of an owner. But when a man claims this house as his, he asserts that he is its owner. The house exists for the sake of the man, it has no destiny of its own, it was built for the man to live in, the whole reason of its existence is to serve his need and convenience. But in saying that the house is his, the owner means something more than that it exists for his benefit. He claims exclusive property in it. He has it in such a way that all others are excluded. He has the right to its exclusive use. Because he is the owner, he has a right to all the advantages that it is capable of conferring. The various uses that it can be put to, as, for dwelling in, or as a warehouse, belong exclusively to the owner; so that if any one, without the owner’s permission, makes use of the house, he takes what belongs to another and violates the virtue of justice, which requires that we should give to every one his own.

So that ownership implies a certain connection between the thing owned and its owner, which gives him the right to its exclusive use, in such a manner that if another, without the owner’s permission, take it or use it, he thereby violates justice.¹ If a man by force expels another from his house, and takes possession of it for himself, the injustice is obvious. But even if the house be empty, and without any violence being offered to the owner, if another against the owner’s reasonable wish should make use of the house, he would take what did not belong to him, and would be guilty of a violation of justice. It might happen that no harm was done to the house. The intruder might unlock the door, use the house for a night’s rest, and leave it in the morning just as he found it, neither better nor worse. And yet he would have committed an act of injustice in making use of what did not belong to him, against the reasonable wish of the owner.

¹ Lugo, De Just. et Jure, l. n. 6.

This seems obvious and undeniable. It is expressly stated or taken for granted by theologians. 2

It forms the basis of the distinction between the solemn and the simple vow of poverty. By the solemn vow of poverty the Religious renounces the ownership and the independent use of property; by the simple vow he only renounces the independent use. So that the vow of poverty can be violated not only by disposing of property, but also by using it without the requisite permission.

Again, the use of a thing may be the matter of ownership quite apart from the ownership of the thing itself. There is not only an absolute, but also qualified ownership of property in a great many different forms.

I may own not indeed the house, but the use of it. I may have a lease of the house for a certain number of years; and I have thereby as true a property in the house, though not so perfect and absolute, as if I were its owner. If I am unlawfully disturbed in the peaceful enjoyment of the rights which my lease gives me, an act of injustice is committed. Even the owner would violate justice, if he unlawfully, before the expiration of the lease, should resume the use of his own house. So that the uses of a thing may be the objects of property, and the subject-matter of justice and injustice, not less than the thing itself. If I let out a horse for hire, the hirer has a qualified property in the horse which cannot be interfered with without injustice. If I were, without the consent of the hirer, to make use of my own horse for a day, even though the hirer might not want him on that day, and might suffer no actual loss by my action, still I should be guilty of injustice, for I should have taken something which belonged to another.

3 Cf. Molina, De Just. et Jure, ii. d. 681, n. 8.

And whenever I have taken what belongs to another against his will, then justice prescribes that I should give it back to him. For justice requires that every man should have his own; as long then as I have anything belonging to another against his reasonable wish, so long am I violating justice; if I desire my sin to be forgiven, I must not only repent of what I have done, but I must as far as possible make restitution, otherwise I am constantly and unjustly detaining what belongs to another. In other words, an act of injustice by which I inflict an injury on another, always imposes an obligation of making restitution as far as possible. If the robber, or the thief, cannot restore the actual thing robbed or stolen, he must as far as possible give back an equivalent if there be one. It may happen that reparation for an injury is not possible, as in the case of adultery, where the right violated cannot be made good, and no equivalent can be offered. Or it may be that the owner does not care to exact an equivalent, or that a just equivalent is hardly determinable. Thus, if a neighbor against my will take a horse out of my stable and use it, I may be very angry on account of the injury done me, but I may not care to exact payment. I may have no intention of letting out my horses for hire. Or if a tramp makes himself at home in my house for the night without my knowledge and against my will, he does me an injury, but I should scarcely expect payment for the night’s lodging. On the other hand, if one took a horse which was kept in livery-stables on hire, and used him for a day’s journey, he would be expected, and bound in conscience, to pay the usual price for the accommodation he had received. And so too, if a man took the use of a bed-room for the night in a lodging-house, he would be obliged to give the ordinary price; for he had taken something which did not belong to him, which had its price, and that all may have their own, justice requires that this price be paid. And it is to be noticed that the obligation remains, even if no damage be done to another’s property in these cases. It might happen that the horse from the livery-stables would not have been wanted for anything else on the day on which he was taken, and that he was not only no worse, but distinctly better for the exercise, yet

compensation would have to be made for its use; for the use of it had a money value, and that use belonged exclusively to the keeper of the livery-stables; therefore, that all may have their own, the just price must be rendered to him, otherwise justice will not be done.

It would make no difference with regard to the obligation of making restitution, if in this case the livery-stables were owned by a company and not by an individual. For companies are moral entities and moral persons, capable of possessing property not less than natural persons. An injury, therefore, against the rights of ownership is done to a company when its property is unwarrantably taken or used against the wish of the company. And justice, which requires that all should have their own, compels a thief, who has unlawfully taken or used the property of a company, to make restitution of the thing taken or its equivalent, just as in the case of thefts from individuals.

This duty of making reparation for violations of justice flows from the very nature of ownership and justice. It exists independently of any sanction or punishment imposed by the civil law. The thief, if discovered, is indeed amenable to certain pains and penalties imposed by the law, but, quite independently of the law, he is obliged in conscience to make reparation for his wrong-doing. The law does not create this obligation — it is a sign that it already exists.

What has hitherto been said is merely the ordinary teaching of Catholic theology concerning justice and the obligations which it imposes. As far as I am aware, there is no theologian who would deny the principles which have hitherto been laid down. The doctrine is, I think, not only in accordance with right reason and the nature of justice, but it is supported by the unanimous authority of theologians.

We may make a direct and simple application of these principles to the question of paying the fare for traveling on the railway. The railway is owned by a company, whose exclusive property it is. The company has therefore a right, the natural right which belongs to all proprietors, to exclude all others from the use of the railway. If any one uses the railway against the wish of the company, he commits an act of injustice. The company, of course, sunk money in the railway in the hope of recouping itself by selling the advantages the railway offers to the public. The advantage of being carried so safely, easily, and quickly from one place to another is a convenience which is worth money. The use of the railway is a convenience which has its price, just as much as the convenience of a bed-room in a lodging-house. And just as one would act unjustly by making use of a bed-room in an hotel against the wish of the proprietor, with no intention of paying the ordinary price of the room, so one who travels on the railway with no intention of paying his fare acts unjustly. He makes use of the property of another against the owner’s reasonable wish; that use is something which has a definite money value; he has taken the property of another against his wish; justice therefore prescribes that he should restore to the owner the price of the property that he has stolen.

We do not rest the conclusion on the question as to whether any damage has been done to the property of the company by the passenger or not.

It is sufficient to found the obligation of payment on the undoubted principle, that no one has a right to use another’s property without his consent. If he does do so he commits an act of injustice; and if the use in question has a determinate money value, he has, against the reasonable wish of the owner, taken so much of another’s property, he is a thief, and must make restitution. It is quite immaterial whether the place which he occupied would have been occupied by some one else or not. For even if I foresaw that a fishmonger would not be able to sell or make any use whatever of a stock of fish exposed for sale, I should commit a theft if I took any of his property without paying for it; so one who travels by railway without paying his fare, even though no other positive loss thereby accrues to the company, takes what does not belong to him, and must restore its value to the owner. The right to travel by rail is property which only the owners or those who buy it from them can use. As every one knows, the law of the land recognizes and enforces the obligation of paying one’s railway fare, and punishes any one who seeks to escape the obligation. We have heard it discussed whether such a law is not a merely penal law. But a law cannot be merely penal which enforces a natural obligation. And, as we have seen, the railway passenger is under a natural obligation of paying his fare. To judge from the lists of convictions which are to be seen in our railway stations there would seem to be either some ignorance in the public mind on the moral principle of the question, or some laxity of conscience on the point. We have briefly treated the question from the point of view of moral theology.