LECTURE XXXVI.

OF TITLE TO PERSONAL PROPERTY, BY ORIGINAL

ACQUISITION.

TITLE to personal property may accrue in three different ways: 1. By original acquisition; 2. By transfer, by act of the law; 3. By transfer, by act of the parties.

It will not be possible to give to every part of so extensive a subject a minute examination, consistently with the preservation of due symmetry in the arrangement of these elementary disquisitions. I shall endeavour to bring every part of the title at least into view, and reserve a full examination for those branches of it which may appear to be the most fruitful of instruction.

The right of original acquisition, may be comprehended under the heads of occupancy, accession, and intellectual labour..

I. Of original acquisition by occupancy.

The means of acquiring personal property, by occupancy are very limited. Though priority of occupancy was the foundation of the right of property, in the primitive ages, and though some of the ancient institutions contemplated the right of occupancy as standing on broad ground, yet in the progress of society, this original right was made to yield

a Quod ante nullius est, id naturali ratione occupanti conceditur. Inst. 2.1. 12. Mr. Selden has shown, that among the ancient Hebrews, fruits, fish, animals, and every thing found in desert or vacant places, belonged to the first occupant. De Jur. Nat et Gent: jucta disciplinam Ebræorum eited by Puff. b. 4. c. 6. sect. 5.

to the stronger claims of order and tranquillity. Title by Occupancy is become almost extinct, under civilized governments, and it is permitted to exist only in these few special cases, in which it may be consistent with the public welfare.

(1.) Goods taken by capture in war, were, by the common law, adjudged to belong to the captor. But now, by the acknowledged law of nations, and the admiralty jurisprudence of the United States, as has been already shown, goods taken from enemies, in time of war, vest primarily in the sovereign, and they belong to the individual captors only to the extent, and under such regulations, as positive laws may prescribe.

(2.) Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him; and in both these cases they belong to the fortunate finder. But it is requisite, that the former owner should have completely relinquished the chattel, before a perfect title will accrue to the finder. He is not even entitled to a reward from the owner for finding a lost article, if none had been promised. He is only entitled to indemnity against his necessary expenses i incurred on account of the chattel.d The Roman law equally denied to the finder of lost property a reward for finding it; and according to the stern doctrine of Ulpian, it was even considered to be theft to convert to one's own use, animo lucrandi, property found, when the finder had no reason to believe it had been abandoned.

This right of acquisition, by finding, is confined to goods found upon the surface of the earth; and it does not

a Finch's Law, 28. 178. Bro. tit. Property, pl. 18. 38. Wright, J. in Morrough v. Comyns, 1 Wils. 211.

b See vol. ii. p. 95.

1 Blacks. Com 296.

d Armory v. Flynn, 10 Johns. Rep. 102.

• Dig. 47. 2. 44. sect. 4-10.

extend to goods found hidden in the earth, and which go under the denomination of treasure-trove. Such goods, in England, belong to the king; and in this state, they strictly belong to the public treasury, for we have re-enacted the statute of 4 Edw. I., by our act concerning coroners," which directs the coroner to inquire, by jury, of treasure said to be found, and who were the finders, and to bind the finders in recognisance to appear in court. I presume, however, that this direction has never been put in practice, and that the finder of property has never been legally questioned as to his right, except on behalf of the real owner. The common law originally, according to Lord Coke, left treasure-trove to the person who deposited it, or upon his omission to claim it, to the finder. The idea of deriving any revenue from such a source, has become wholly delusive and idle. Such treasures, according to Grotius.c naturally belong to the finder; but the laws and jurisprudence of the middle ages ordained otherwise. He says, that the Hebrews gave it to the owner of the ground wherein it was found; and it is now the custom in Germany, France, Spain, Denmark, and England, to give lost treasure to the prince, or his grantee; and such a rule, he says, may now pass for the law of nations. The rule of the Emperor Hadrian, as adopted by Justinian,d was more equitable, for it gave the property of treasure-trove to the finder, if it was found in his own lands, but if it was fortuitously found in the ground of another, the half of the treasure went to the proprietor of the soil, and the other half to the finder, and the French new code has adopted the same rule.e

a L. N. Y. sess. 24. ch. 43.

b 3 Inst. 132.

e De Jur. Bel. & Pac. b. 2. c. 8. sect. 7.

d Inst. 2. 1.39.

e Code Civil, No. 716. But the French code limits this right of the finder to that particular case. The general rule is, that all property vacant, and without a master, belongs to the state. Code, No. 539. 713,

Goods waived, or scattered, by a thief, in his flight, belong likewise, at common law, to the king, for there was supposed to be a default in the party robbed, in not making fresh pursuit of the thief, and reclaiming the stolen goods before the public officer seised them. But this prerogative of the crown was placed at the common law under so many checks, and it is so unjust in itself that it may, perhaps, be considered as never adopted here as against the real owner, and never put in practice as against the finder, though as against him, I apprehend, the title of the state would be deemed paramount. We must, also, exclude from the title by occupancy, estrays, being cattle whose owner is unknown, for they are disposed of in this state, and, I presume, generally in this country, when unreclaimed, by the officers of the town where the estray is taken up, for the use of the poor, or other public purposes. All wrecks are likewise excluded from this right of acquisition by occupancy, for if they be unreclaimed for a year and a day, they are liable to be sold, and the net proceeds paid into the public treasury.

By the colony laws of Massachusetts, wrecks were preserved for the owner; and they are supposed to belong now to the United States, as succeeding, in this respect, to the prerogative of the English crown. The statute law of

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77: and Toulier, in his Droit Civil Francais, tom, 4 p. 37-42, Joms much of the contradiction, confusion and uncertainty of the elations, on this subject of goods. without an owper. zky' case, 5 Co. 109. Cro. Eliz. 694.

LP's aw, 212,

7 of V Y. sess. 36. ch. 21.

ss. 10. ch. 28.

e Dones 3hr of American Law, ch. 76. art. 7. 8. 12, 21. 23. 38. It is

1 aw of continental Europe, that wrecks belong to the nation, ཙཾ༥༣, owner does not appear. Heiner. Elem. Jur. ord. Inst. s. 352, Loner, Droit Cwil Francais, tom. 4. No. 42-46.