Occupation

OCCUPATION. - It is one of the modes of original acquisition of property, indeed the first of them even historically and the most important at the origins of society. It consists in the apprehension of a thing that has no owner (res nullius) with the intention of keeping it as one's own (animus occupandi). In a technical-juridical sense this kind of o. is the reduction of a res nullius into one's own de facto power for the purpose of making it one's own de jure, with the consequence of acquiring ownership of it. Such a fact proves truly suitable for determining in concrete terms the right of property. With o., in fact, no right of others is violated, inasmuch as these are things devoid of an owner. In it, moreover, the animus of possessing the thing for oneself is inherent. For this reason, always and among all peoples, o. has been held to be a sufficient title for the acquisition of property over res nullius.

The ethical foundation of o. lies, therefore, in the principle of natural law according to which the thing of no one, or even abandoned (vacua possessionis), yields to the first occupant.

For moralists, in order for o. to be a legitimate title for the acquisition of property, the following conditions must exist: 1) there must be a suitable object, that is, one that is morally and physically susceptible of apprehension and of exclusive possession, and over which there is not already another title of property (otherwise a theft would be perpetrated), and that is in commerce, that is, that it can enter into juridical-patrimonial relations; 2) there must be the material and effective taking of possession; this, however, can be physical or moral according to the nature of the thing or according to what the positive juridical systems provide. This apprehension must therefore consist in the effective availability of the thing; 3) there must be the intention (animus) of making the thing one's own; without this intention the object would remain in the person's hand just as it would remain in any other place, susceptible of new apprehension by anyone.

OBJECT OF OCCUPATION

1. Certain categories of animals can be the object of occupation above all. These are customarily distinguished into wild animals (fera), animals that have reverted to the wild (efferata), tamed animals (cicurata), and domestic animals (mansueta).

Only wild or reverted-to-the-wild animals living in a state of natural freedom constitute the object of occupation, that is, of hunting. Tamed animals are not the object of hunting, except when, regaining their freedom, they return to being res nullius.

In Italian law, a particular discipline applies to certain tamed animals (for example, bees, rabbits, fish: art. 924 ff.). The owner may pursue them within a certain period of time; if he does not pursue them or ceases to pursue them, he loses ownership to the benefit of the owner of the land where they have stopped, unless the animals themselves were attracted there by deception (in which case the good faith that legitimizes the acquisition of the animals would be lacking). 2. According to natural law, so-called bona vacantia are also susceptible of occupation, that is, those goods that have belonged to no one or that have lost their bond with an owner. The Italian Civil Code permits occupation only with regard to movable goods (art. 923). For immovable property the Code establishes that, as soon as they remain without an owner, they are acquired immediately by the State, becoming part of its patrimony (art. 827); under the Code of 1865, occupation was possible also in the case of immovable property. 3. Things that the owner has abandoned (res derelictae) with the intention of no longer considering them as his property can be the object of occupation. In doubt this intention cannot be presumed because it is very rare. Customarily, the ears of grain, grapes, nuts, etc. that remain in the field after the harvest are considered abandoned things. Neither things abandoned on the occasion of fire, occupation, or air raid, nor things thrown away by those who find themselves in particular dangers (for example, shipwrecks, earthquakes, etc.), nor the wreckage of shipwrecked persons, as long as there is hope for them of recovering it, are to be considered res derelictae (the civil legislations of some countries — France, England, the United States — confirm this natural right. In Italy, arts. 510-13 of the Code of Navigation, in the case of the finding of sea wreckage or of wreckage thrown up from the sea in localities of the maritime domain, lay down a discipline analogous to that of arts. 927 ff. concerning lost things. For the finding of aircraft and of aircraft wreckage see arts. 993-95 of the Code of Navigation). 4. Lost things (res nuper amissae) can also form the object of occupation. By natural law, a lost thing remains the property of the one who lost it, as long as there remains the hope of being able to find it again. Therefore it is obligatory to observe the norms established on the matter by the civil laws. By natural law, one who finds another's thing is not bound by justice to pick it up and keep it; sometimes, however, he may be obliged to do so ex caritate. One who has taken it becomes its depositary and must return it to the legitimate owner as soon as he is known, being able to demand a just compensation. If due diligence has been used to identify the owner and he does not appear, the finder-depositary may regard the thing as his own; this is justified, in natural law, by the twofold principle according to which the dominion of things was introduced so that they might be used, and in the case in which, having been lost, this was prevented, the things themselves become, after a certain time (after which there is no longer hope of finding their owner), vacuae possessionis in order to allow others to enjoy them. 5. By natural law, treasure, understood as res nullius, belongs entirely to the one who has found it. The same is to be said of mines. Nevertheless, civil legislations place certain limitations with a view to the common good (v. TESORO). 6. With regard to the right or custom of grazing and of wood-gathering, it must be noted: if a right exists, even by force of legitimate custom, then one is faced with the exercise of a right, and there is no occasion to speak of occupation. Outside this hypothesis, by the law of nature nothing can be taken from the woods or the pastures without the consent of the owner. This holds also if the right of wood-gathering or of grazing belongs to the community, which regulates its exercise for individuals; one who acts against this sins either gravely or lightly, according to the circumstances. Nevertheless, the authors note: a) if the grasses or plants grow freely, a greater quantity than usual is required to constitute grave matter; b) in this one must attend to the will, even merely presumed, of the owner and to local customs, which have often created a kind of right in favor of the poor for dry branches, unusable plants, such as junipers, etc. One who gathers, however, must not cause damage.

Occupation finds its regulation also within the sphere of international law, prevalently under the headings of belligerent occupation (for which v. GUERRA; GSTILITA) and colonial occupation (for which v. COLONIALE, DIRITTO; COLONIZZAZIONE).

Francesco Ercolani