Occupatio (Scots law)

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Occupatio or occupation is a method of original acquisition of property in Scots law. It derives from the Roman law concept of the same name. Occupatio allows an occupier of an object (res) with the intention to own the property to become the owner. As most property in Scotland is owned, and with the caduciary right (or escheat ) that all ownerless property falls to the Crown, its application is uncommon. Nevertheless, it remains a valid method of acquiring ownership in Scots law. [1]

Contents

Roman law

In Roman law, occupatio was an original method of acquiring ownership of un-owned property ( res nullius ) by occupying with intent to own. Nicholas argues this is the "archetype" of all other Roman law methods of original acquisition. [2] According to the Roman jurist Gaius, any previously unowned thing becomes the just property of the first occupant able to "capture" it: [3]

§ 66. Another title of natural reason, besides Tradition, is Occupation [occupatio], whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of earth, air, and water, as soon as they are captured.

§ 67. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture.

Abandoned goods ( res derelictae ) was also res nullius and subject to acquirement through occupatio.

Application in Scots law

Original acquisition

In original acquisition, the new owner is first person to take ownership (i.e. acquire) of the ownerless thing ( res nullius ). [4] The law of original acquisition is strictly applied, and an original acquisition will only occur in a few specific situations, including acquisition by occupatio. The Crown's role as ultimus haeres and recipient of any bona vacantia (i.e. abandoned) property in Scotland means that acquisition of previously unowned property is uncommon but occupatio remains a valid method to acquire ownership.

Ownerless things capable of occupatio acquisition

The following things (res nullius) were considered capable of acquisition by occupatio:

Occupatio of shells, pearls, gems, pebbles or precious stones on the seashore

The above items were considered by the institutional writer Erskine to be res nullius capable of acquisition by occupatio. [5] In Scotland, the foreshore is owned by the Crown as part of the inter-regalia.

Occupatio of wild animals

Acquisition of the wild animal with the intent to own it vests the occupier or holder a real right of ownership. This is said to apply irrespective of whether the property has been taken from another person's land. [6] This is because the landowner has no right of ownership in the unowned thing itself, only a right to take. Therefore, wild animals (ferae naturae) which are not tame or domesticated animals, or salmon fish, are capable of being acquired by occupatio to give the taker a right of ownership. If the wild animal frees itself from the occupier, the animal is considered wild or ferae naturae again. [7] Animals which return to their owner, such as bees or pigeons, are not considered ferae naturae. [8]

However in practice, the poacher will lose ownership of the wild animal as a matter of forfeiture for committing a criminal offence. This is because poaching and other forms of theft are a criminal offence for the taking of wild animals without an owner's consent, such as Part III of the Deer Scotland Act 1996. Specific criminal offences in relation to types of Scottish wild animals are found in the Wildlife and Natural Environment (Scotland) Act 2011 and the Wildlife and Countryside Act 1981. [9] Additionally, the criminal courts of Scotland also have a general power under the Proceeds of Crime Act 2002 to order the forfeiture and sale of the captured wild animal. [10]

Wild Salmon fish belong to the Crown and therefore form part of the inter regalia , so are excluded from acquisition by occupatio. Similarly, escaped farmed fish are not considered ferae naturae so are not capable of occupatio acquisition. [11] [12]

Related Research Articles

Finders, keepers, sometimes extended as the children's rhyme finders, keepers; losers, weepers, is an English adage with the premise that when something is unowned or abandoned, whoever finds it first can claim it for themselves permanently. The phrase relates to an ancient Roman law of similar meaning and has been expressed in various ways over the centuries. The 1982 English Court of Appeal case Parker v British Airways Board expanded the phrase, with the judgement of Donaldson L.J. declaring "Finders keepers, unless the true owner claims the article". Difficulties arise when exploring how best to define when exactly something is unowned or abandoned, which can lead to legal or ethical disputes, especially as jurisdictions often differ in their approach.

Homestead principle Legal principle regarding unclaimed natural resources

The homestead principle is the principle by which one gains ownership of an unowned natural resource by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use , joining it with previously acquired property or by marking it as owned.

<i>Res nullius</i> Latin term from Roman law

Res nullius is a doctrine. The expression "res nullius" is a Latin term derived from private Roman law whereby res is not yet the object of rights of any specific subject. Such items are considered ownerless property and are free to be acquired by means of occupatio. Its use as a legal concept continues in modern civilian legal systems.

<i>Pierson v. Post</i> American case

Pierson v. Post is an early American legal case from the State of New York that later became a foundational case in the field of property law. Decided in 1805, the case involved an incident that took place in 1802 at an uninhabited beach near Southampton, New York. Lodowick Post, a local resident, was out with a hunting party when his hunting dogs caught the scent of a fox and began pursuing it. As they drew near the fox, Jesse Pierson, another local resident, saw the fox—though he denied seeing Post and his party—and promptly killed it and carried it off for himself. Post filed a lawsuit against Pierson claiming that because he had already begun pursuing the fox, the property of the fox's pelt and carcass were rightfully his, not Pierson's. The local justice ruled in favor of Post. Pierson appealed the ruling to the New York Supreme Court of Judicature, who reversed the justice's decision and ruled in favor of Pierson.

Unowned property refers to tangible, physical things which are capable of being reduced to being property owned by an individual but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.

<i>Ultimus haeres</i>

Ultimus haeres is a concept in Scots law where if a person in Scotland who dies without leaving a will and has no blood relative who can be easily traced, the estate is claimed by the Queen's and Lord Treasurer's Remembrancer on behalf of the Crown. It is one of two rights to ownerless property that the Crown possess, the others being bona vacantia.

The term animus revertendi is a Latin phrase that means "with intention to relocate".

Res communis is a concept or doctrine. The expression is a Latin term derived from Roman law that preceded today's concepts of the commons and common heritage of mankind. It has relevance in international law and common law.

Occupatio

Occupatio was an original method of acquiring ownership of un-owned property by occupying with intent to own.

Estray, in law, is any domestic animal found wandering at large or lost, particularly if the owner is unknown. In most cases this includes domesticated animals and not pets.

English property law refers to the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four main topics:

Inter regalia (Scots law)

The inter regalia are the rights falling to the Crown in Scots Property law. The term derives from Latin inter (among) and regalia.

Scots property law

Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland. As a hybrid legal system with both common law and civil law heritage, Scots property law is similar, but not identical, to property law in South Africa and the American state of Louisiana.

Missives of Sale (Scots law) Scottish trading law

Themissives of sale, in Scots property law, are a series of formal letters between the two parties, the Buyer and the Seller, containing the contract of sale for the transfer of corporeal heritable property (land) in Scotland. The term 'land' in this article includes buildings and other structures upon land.

Disposition (Scots law)

A disposition in Scots law is a formal deed transferring ownership of corporeal heritable property. It acts as the conveyancing stage as the second of three stages required in order to voluntarily transfer ownership of land in Scotland. The three stages are:

  1. The Contractual Stage
  2. The Conveyancing Stage
  3. The Registration Stage
Land registration (Scots law)

This article relates to the actual process of land registration, for a discussion on the Scottish Government agency maintaining the public registers, see Registers of Scotland. For further reading on the law of land registration, see K. Reid and G.L Gretton, Land Registration.

Accession (Scots law)

Accession or Accessio is method of original acquisition of property under Scots property law. It operates to allow property to merge with another object, either moveable or heritable (land). Accessio derives from the Roman law concept of the same name. Other jurisdictions employ similar rules. The leading case in this area is said to be Brand's Trustees v Brand's Trustees(1876) 3 R (HL) 16.

Prescription (Scots law)

Prescription in Scots law allows the creation or extinction of personal and real rights. There are two forms of prescription: (1) positive prescription, which creates certain real rights, and (2) negative prescription, which extinguishes both personal and real rights. Prescription is different from limitation, which prevents the raising of court proceedings or litigation in relation to civil law matters in Scottish courts, primarily affecting personal injury claims arising from delict as these are exempt from prescription. The terms prescription and limitation are used in other jurisdictions to describe similar rules, mainly due to shared Roman law and Civil law heritage.

Possession (Scots law) Legal concept relating to holding property in Scots law

Possession in Scots law occurs when an individual physically holds property with the intent to use it. Possession is traditionally viewed as a state of fact, rather than real right and is not the same concept as ownership in Scots law. It is now said that certain possessors may additionally have the separate real right of ius possidendi. Like much of Scots property law, the principles of the law of possession mainly derive from Roman law.

Compulsory purchase laws in Scotland

Compulsory purchase are powers to obtain land in Scotland that were traditionally available to certain public bodies in Scots law. Scots law classifies compulsory purchase as an involuntary transfer of land, as the owner of the corporeal heritable property (land) does not consent to the transfer of ownership.

References

  1. ↑ Gretton, George Lidderdale. Property, trusts and succession. Steven, Andrew J. M., Struthers, Alison E. C. (Third ed.). Haywards Heath. p. 136. ISBN   978-1-5265-0056-4. OCLC   966744374.
  2. ↑ Nicholas, Barry (1962). An introduction to Roman law. Oxford: Clarendon Press. p. 131. ISBN   0-19-876063-9. OCLC   877760.
  3. ↑ "Gaius states that according to natural reason the first occupier of any previously unowned property becomes the just owner (2nd Century)". Online Library of Liberty.
  4. ↑ Gretton, George Lidderdale. Property, trusts and succession. Steven, Andrew J. M., Struthers, Alison E. C. (Third ed.). Haywards Heath. p. 136. ISBN   978-1-5265-0056-4. OCLC   966744374.
  5. ↑ Erskine Institute II,1,10,
  6. ↑ Stair II,1,33; Erskine Institute II,1,10; Bell s 1286. Stair, Erskine, and Bell are institutional writers so are a source of law in Scots law.
  7. ↑ Erskine Institute II,1,10,
  8. ↑ Stair II,1,33; Erskine II,1,10; Bell s 1290.
  9. ↑ "Wildlife and Countryside Act 1981". www.legislation.gov.uk. Retrieved 11 May 2020.
  10. ↑ "Proceeds of Crime Act 2002". www.legislation.gov.uk. Retrieved 11 May 2020.
  11. ↑ Valentine v Kennedy1985 SCCR 89
  12. ↑ C G van der Merwe and D Bain The Fish that Got Away: Some Reflections on Valentine v Kennedy (2008) 12 Edin LR 418.
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