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CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY

OCCUPANCY.

acquiring and

Of the means of We are next to consider the title to things personal, or the of losing title to various means of acquiring, and of losing, such property as things personal.

may be had therein: both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve: 1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift

. or grant. 9. By contract. 10. By bankruptcy. 11. By

. testament. 12. By administration.

And, first, a property in goods and chattels may be acquired by occupancy: which we have more than once (a) remarked, was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue

that property and possession in things personal, which has [ * 401 ) once been acquired by the owner. And, where such* things

are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right

1. By occupancy

*

(a) See pag. 2, 3, 8, 258.

of an alien ene

a

of occupancy is still permitted to subsist, and which we are now to consider. 1. Thus, in the first place, it hath been said, that any 1. of the goods

Of body may seize to his own use such goods as belong to an my; alien enemy(b). For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws; and, therefore, every man that has opportunity, is permitted to seize upon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must, in reason and justice, be restrained to such captors as are authorised by the public authority of the state, residing in the crown (c); and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And, therefore, it hath been holden(d), that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. It hath also been adjudged, that, if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker, unless they were retaken the same day, and the owner before sun-set puts in his claim of property (e). Which is agreeable to the law of nations as understood in the time of Grotius (f), even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though the modern authorities (g) require, that, before the property can* be changed, the goods must have been brought [ into port, and have continued a night intra præsidia, in a place of safe custody, so that all hope of recovering them was lost.

And, as in the goods of an enemy, so also in his person, or of his person, a man may acquire a sort of qualified property, by taking prisoner in war. him a prisoner in war(h); at least till his ransom be paidi).

* 402 ]

(6) Finch, L. 178. (c) Freem. 40.

(a) Bro. Ab. tit. Propertie, 38 ; Forfeiture, 57.

(e) Ibid.

(f) De j. b. & p. 1. 3, c. 6, s.3.

(9) Bynkersh. quæst. jur. publ. I.
4; Rocc. de Assecur. not. 66.

(h) Bro. Abr. tit. Propertie, 18.
(i) We meet with a curious writ of

2. Of unclaimed moveables found

of the earth, or

And this doctrine seems to have been extended to negro servants (k), who are purchased when captives, of the nations with whom they are at war, and are, therefore, supposed to continue, in some degree, the property of their masters who buy them : though, accurately speaking, that property (if it indeed continues (1), consists rather in the perpetual service, than in the body or person of the captive (1).

2. Thus again, whatever moveables are found upon the upon the surface surface of the earth, or in the sea, and are unclaimed by any in the sea;

owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall

within the description of waifs, or estrays, or wreck, or trays, wrecks, or hidden treasure, hidden treasure; for these, we have formerly seen (m), are in the king. vested by law in the king, and form a part of the ordinary

revenue of the crown.

3. Thus, too, the benefit of the elements, the light, the ments, light, air, and water;

air, and the water, can only be appropriated by occupancy. If I have an ancient window, overlooking my neighbour's ground, he may not erect any blind to obstruct the light(2):

( but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the

first occupancy is rather in him, than in me. If my neigh[ * 403 ) bour *makes a tan-yard, so as to annoy and render less salu

brious the air of my house or gardens, the law will furnish me with a remedy; but, if he is first in possession of the

save waifs, es

which are vested

3. Of the ele

*

trespass in the register (102), for break- " da fecerat, satisfactum foret, de.
ing a man's house, and setting such his tinuit) fregit, et ipsum H. cepit et
prisoner at large. “ Quare domum ip- abduxit, vel quo voluit abire per-
sius A. apud W. (in qua idem A. " misit, &c."
" quendam H. Scotum per ipsum A. de (k) 2 Lev. 201.
guerra captum tanquam prisonem (1) Carth. 396 ; Ld. Raym. 147 ;
suum, quousque sibi de centum libris, Salk. 667.
per quas idem H. redemptionem suam (m) Book I. ch. 8. [Vol. I. p. 295.]
cum præfato A. pro vita sua salvan-

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air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue (3). If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current (4) (5).

4. With regard likewise to animals feræ naturæ, all man- 4. of animals fekind had by the original grant of the Creator a right to certain restricpursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field : and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories ; in the same manner as they might have taken even game itself, till these civil prohibitions were issued : there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a

(3) See ante, note (4) to p. 395. the subject seems to be comprised in (4) See ante, note (5) to p. 395. the sentence in the text.

(5) Mr. Christian observes, that “Any one may build a mill, and may “ since the immense extension of the detain or divert the water to supply it, woollen and cotton manufactures by provided he leaves sufficient for all the machinery, a stream of water in many beneficial purposes to which it had situations is become of great value to been previously applied below, and the owners of the grounds through provided he does not throw it back which it flows. But, though actions upon another's ground, or upon a respecting injuries to mills, and the pre-existent mill above, so as to lessen right to dam or divert the water in a the fall upon its wheel, and thereby stream, are now extremely frequent in to diminish the effect of his neighthe country, yet the whole law upon bour's machinery.”

corn, or other

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partridge or a butterfly; but the difference at présent made,

arises merely from the positive municipal law(6). 5. Of growing 5. To this principle of occupancy also must be referred emblements. the method of acquiring a special personal property in corn

growing on the ground, or other emblements, by any pos[ * 404 ] sessor *of the land who hath sown or planted it, whether he

be owner of the inheritance, or of a less estate; which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels (7). They were devisable by testament before the statute of wills (m), and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action (n): and by the statute 11 Geo. II. c. 19, though not by the common law (o), they may be distreined for rent arrere. The reason for admitting the acquisition of this special property by tenants who have temporary interests, was formerly given (p); and it was extended to tenants in fee, principally for the benefit of their creditors : and, therefore, though the emblements are assets in the hands of the executor (8), are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny, before they are severed

from the ground (q). 6. Of property

6. The doctrine of property arising from accession is also arising from

grounded on the right of occupancy. By the Roman law, if

any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state

accession,

(m) Perk. s. 512.

(n) Bro. Abr. tit. Emblements, 21 ; 5 Rep. 116.

(0) 1 Roll. Abr. 666.
(p) Pag. 122, 146 [and notes].
(9) 3 Inst. 109.

(6) See ante, pp. 14, 15, and 39: continuation of an inchoate, and not as also post, p. 411, n.

the acquisition of an original right." (7) Mr. Christian observes, that [See ante, p. 10, with the note there“the right to emblements does not to, and the note to p. 122.--Ed.] seem to be aptly referred to the prin- (8) See p. 122, n. (7). ciple of occupancy; for they are the

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