Occupatio

We saw in Chapter 11 that, in classical law, there was a special category of property called res mancipi.⁶ This category included land, slaves and certain animals, and for these things special, formal methods of transfer were required. There is some doubt as to whether occupatio could be used to acquire ownership of an aban­doned res mancipi? On the one hand, to deny such acquisition would potentially lead to res mancipi not falling into ownership again, which would not be a welcome consequence.^{[1202] [1203] On the other hand, natural law modes of acquisition were not nor­mally available for acquisition of res mancipi. Moreover, to allow it in this case would allow the requirement for special methods of transfer for res mancipi to be circum­vented by having the transferor simply abandon the property, with the transferee then stepping in to acquire by occupatio.[1204] The better view may therefore be that an acquirer of abandoned res mancipi got only bonitary ownership[1205] until he or she had possessed long enough to fulfil the requirements of acquisition by usucapio.[1206]}

(b) Enemy Property

Property of an enemy of Rome, which was on Roman territory, could be treated as ownerless and acquired accordingly.^[1207] This, says Justinian, is the basis for the enslavement of war captives.^[1208] However, booty captured through military action would be acquired for the state rather than individual soldiers, and so would fall under the control of the general concerned.

(c) Wild Animals

The final category to consider here is that of wild animals. A wild animal might be ownerless either because it has never been owned or, as we shall see below, because it was once owned but has escaped. In both cases, the animal was treated in the same way for the purposes of occupatio.

We are concerned here specifically with wild animals. A distinction was made between wild animals (.ferae naturae) and domestic animals (mansuetae naturae). This distinction was crucial, as only wild animals were normally ownerless, domestic animals being treated in the same way as other property.^[1209] The nature of the distinction, though, is not entirely clear. It is normally assumed that animals were classed as wild or domestic according to species^[1210] rather than according to the disposition of the individual animal.^[1211] Accordingly, a dog would be considered domestic however fierce, and a bear would be considered wild however placid an individual was. Household animals and farm animals, such as dogs, horses, cattle and sheep, would certainly be considered domestic. Bees,^[1212] deer, peacocks and pigeons^[1213] were considered wild. Ducks and geese were considered to exist in both wild and domestic species.^[1214] It is not clear how hybrid offspring of wild and domestic parents were classified,^[1215] nor how domestic animals that had become feral were treated.

(2) Acquisition

Acquisition by occupatio was based on taking possession of the property.^[1216] Although this was a rule of general application in occupatio, it raises particular issues in the acquisition of wild animals, which will therefore be the focus of the rest of this section.

The owner of land could exclude anyone from hunting or fishing on his or her land, and potentially had a delictual remedy against anyone who did so.^[1217] However, this did not imply that the owner of the land had any right in the wild animals that happened to be on the land, and even someone hunting or fishing unlawfully became owner of what he or she caught.^[1218] This was true even if there was a fence around the land so that the animals could not escape, or in the case of fish in a lake, if there was insufficient restraint to deprive the animals or fish of their ‘natural liberty'.^[1219] On the other hand, animals in a pen or fish in a pond were possessed.

There was some discussion of what level of control was required for acquisition of ownership of a wild animal by a hunter.

A wild boar fell into a trap which you had set for the purpose of hunting. When he was caught in it, I released him. I ask: am I to be seen as having stolen your boar? And supposing him to be yours, would he cease to be or remain your property, if having released him I set him free in a wood? And if he ceased to be yours, what action would you have against me? The answer was: let us consider whether the trap was set on a public or private place and, if it was set in a private place, whether the land was mine or another’s and, if another's, whether it was with the permission of the person whose land it was or not that the trap was set. Moreover, let us consider whether the boar was so caught in the trap, that it could not escape or could only do so through a long struggle. Still I think that if the boar has come into my power, he becomes mine.^[1220]

The point here seems to be that the fundamental question is this: has the person who set the trap acquired control over the animal? The other factors mentioned are part of the background, and will assist in answering that question, but are not of themselves decisive. Thus, if I am a trespasser, it will be more difficult for me to show sufficient control over the animal caught in my trap, because I am likely to have to be more discreet in my movements in setting the trap and returning to check it. If, though, on the facts, I have in fact obtained control over the animal, it will be mine. In the same way, even if the animal might ultimately be able to escape the trap, if in fact it is currently caught, it is my property.

Suppose that I was in pursuit of a wild animal. Before I was able to catch it, you came onto the scene and were in fact first to lay hands upon the animal. Who became owner in this situation? This appears to have been the subject of some dispute. Some jurists, such as Trebatius,^[1221] thought that the first to pursue should acquire ownership.

(3) Maintenance and Loss of Ownership

The normal rule was that a person who lost property did not cease to be owner unless and until, as we have seen, he or she came to treat it as abandoned. There was, though, a special rule for wild animals.^[1223] Ownership of a wild animal was dependent on continued possession, so ownership was lost if the animal returned to its state of ‘natural liberty'.^[1224] This did not necessarily mean that the animal had to be kept confined. Animals that had a ‘habit of returning' were possessed as long as they retained that habit.^[1225] That was true both of creatures with a natural homing instinct (such as bees and pigeons) and of those that had been tamed sufficiently to have such a habit. Ownership was only lost when that habit was lost, as with swarming bees.^[1226] Even then, though, ownership of an escaping animal (whether or not one that had lost the habit of returning) was retained if the owner pursued, as long as the animal was in sight and was not difficult to pursue.^[1227]

(4) Occupatio in Modern Law

Occupatio in Scots law is of narrower scope than in Roman law: in Scots law, there is no rule allowing acquisition of enemy property. Abandoned property falls to the Crown rather than becoming ownerless,^[1228] and land cannot be ownerless at all.^[1229] In Scots law, therefore, occupatio is restricted to wild animals, and to other things that have never been owned.

However, within this more confined scope, much of the Roman law has been adopted in the Scots law of occupatio.^[1230] Directly relying on Roman authorities, Stair gives as correct for Scots law the position that even one who takes a wild animal unlawfully on another's land nonetheless acquires ownership of it.^[1231] The owner of the land has no right to a wild animal just because it happens to be on his or her land,^[1232] and so is restricted to (at most) a delictual remedy for the trespass.^[1233] Equally, and anomalously for Scots law, ownership of a wild animal is lost when it escapes beyond reasonable chance of recovery.^[1234]

The law of possession of wild animals more generally has also been strongly influenced by Roman law, and may for example be of considerable use if an issue arises concerning possession of an animal kept in a larger enclosure^[1235] or escape of a wild animal from captivity.

C.