Week 4- Original Acquisition

*not looked at transcript*

- Beginning to speak about how you become owner

- 2 broad ways of acquiring ownership: taking title from someone else- normal way-
derivative acquisition, also acquire ownership by getting an original title somehow
with taking it form a predecessor.

- Ownership is based on a new title. So not necessarily an entirely new thing, there might
have been a physical object already in existence, the “original” here means a new title rather
than an original object.

How do you acquire property?

- Broadly, two options, what are they?

- From someone else:
 Derivative acquisition.
 Successor’s title is derived from the previous owner.
- By operation of law:
 Original acquisition.
 Ownership is based on a new title
- Original here means original title rather than an original object

Outline of the resource

A. Intro; plus Occupancy/Occupatio (capturing unowned things, limits of the doctrine,

and what applies in its stead in relation to treasure trove and lost or abandoned
property).
B. Accession (joining corporeal things – mainly moveable’s to land).
C. Other examples of original acquisition (making and mixing things, etc.).

Original Acquisition in Scots Law

Roman origin
u Occupatio.
u Accessio.
u Specificatio.
u Commixtio/Confusio

Original Acquisition- taking unowned things

Occupancy/Occupation/Occupatio:
 - Taking possession of an ownerless thing
- An ownerless thing becomes the property of the first taker
- Few elements here:
- The requirements for occupancy are the object of occupation must be a res nulious
- The acquirer must physically seize/apprehend the thing to establish the physical
element of possession
- The acquirer must have the intention of appropriation- intention to be the owner of
the thing
- In Roman law occupatio applied both to things that had never had an owner, such as shells
on the seashore and things that had ceased to have an owner e.g. abandoned things, with
an exception for the case of treasure trove.
- In contrast to Roman law, in Scots law the term occupation or occupancy applies only to
things, which have never had an owner. Where things were once owned but no longer have
an owner, the general rule is that they belong to the Crown: quod nullius est fit domini Regis
(what belongs to no one, becomes the property of the Lord King). Thus if a question arises
over the ownership of things that have once been appropriated but have now no traceable
owner, the Crown will have title unless some special rule applies (which, as we will see, is
the case for captured wild animals, which regain their liberty).

Occupancy/Occupation (Occupatio): Definition

“Occupation or occupancy is the appropriating to one’s self things which have no owner, by
apprehending them, or seizing their possession.”
Erskine 2.1.9

Occupancy: Scope

- The old Roman rule – quod nullius est fit occupantis – unowned things could be
occupied (Justinian 2.1.12; Erskine 2.1.9) – essentially applied in Scotland, limited in
terms of what it can apply to in Scotland
- Examples of genuinely unowned things in Scots’ law:
u pearls enclosed in shells.
u pebbles cast on the shore.
u wild beasts, fowls, fish.
} Exception in wild animals – royal fish.
} Never domesticated animals – Erskine, Institute 2.1.9.

Occupancy- Appropriation

- Assuming you are able engage in occupancy you need to appropriate the object
- On appropriation of an unowned thing, the possessor acquires ownership.
u See Erskine, Institute 2.1.9.

Occupancy: What is appropriation?

This involves two elements, and after those two elements there as an extra consideration.

1.
Mindset- occupier must have the Requisite animus – see Carey Miller, Corporeal Moveable’s
in Scots Law (2nd edn) para. 2-05 – intension
u Lecture on possession – inference from actions might be
necessary.

2.
- Must have physical control of the item
- As regards wild animals – really the most important instance of occupancy in Scots law –
although a landowner has the exclusive right to take game on his land, this right to take
game being a perk orentitlement of land ownership, such game as a wild animal is unowned
– you don’t automatically own game that happens to be on your land, even though you
might have the right to hunt it.
- The mere fact that there is game on a landowner’s land does not make him the owner of
game on it. He only becomes owner of a particular item of game with specific appropriation
as part of the occupancy process. Without specific appropriation a wild animal, even if it
makes its home on a particular parcel of private land and is not easy to reach, it is not the
property of anyone (as discussed by Lord Moncrieff in Wilson v Dykes (1872)).
- In terms of the physical act? Bell, Principles § 1289 explains this:
- “The act of appropriation is effectual to vest the property only when complete. But it is held
complete while fairly proceeding towards full accomplishment. So, if one wounds an animal
to death, so that it cannot escape... Another coming in and taking the animal does not
deprive the first of his right – the first being deemed the lawful occupant.”
- So you are looking for an act giving the taker sufficient physical control in the circumstances.
- The tail of Bell’s wording here – about when you hold something to be complete, and it fairly
proceeding towards accomplishment, could lead to a question in the nature of: what if A
pursues an animal closely and B intervenes?
- The Scottish Institutional Writers have thought about this. There is conflicting authority,
between Stair 2.1.33 and Bell, Principles § 1290.
- Stair says that B is owner, but he may justly be compelled to restore the thing to A. Bell says
A is owner.

Does it need to be lawful?

- Does the appropriation have to be lawful? Can a poacher acquire ownership by

occupancy?
- Yes, the taker becomes owner even if the ceaser is contrary to law
- if caught in contravention of a statute or a right, then the catcher might be liable to a
penalty but would still require ownership of the animal caught
Erskine, Institute 2.1.10.
Reid, Property (1996) para.541; Carey Miller, Corporeal Moveable’s (2nd edn, 2005) para. 2-
03.
Possible forfeiture (if statute so provides)- the fact provision is made for forfeiture only
proves the point that the taker has become owner because only an owner can forfeit

Occupancy: Consequences of appropriation

1. The taker becomes owner- that owner enjoys usual entitlements of right of
ownership
2. All who thereafter try to appropriate the thing taken are thieves (Erskine 2.1.10);
unless… it is possible for property to stop being owned- wild animals
3. The wild animal recovers its natural state of freedom (Stair 2.1.33; Erskine 2.1.10).-
someone could occupy the animal
BUT it is possible for some occupied property to stop being owned. By “some” property, only
animals – only wild animals – can stop being owned, by regaining liberty.

u BUT please note:

1. Some animals have animus revertendi – for example bees, pigeon. -
mindset to return to home
2. See also Valentine v Kennedy (1985) SCCR 89. Do farmed fish have
innate wildness? – as we know a wild animal once caught is an owned
thing and no longer open to occupancy, even though remained its
wild characteristics. Ownership is maintained only so long as such
animals are in control. No difference as enclosure and water
enclosure.
u Animals which leave and return to a specific place are also owned as long as
they maintain their habit of retuning
u Owner still owns only if they have a reasonable chance of recovering it
u Once an animal escapes or loses habit of returning its open to occupancy
again
u Practical rule which essential conflict with the rule of property once owned
and there after loss belongs to the crown
u Note that domestic animals that do not belong to a wild species, like hens, geese, and
turkeys are not susceptible to occupancy. The same view seems to have been taken in with
regard to farmed deer or fish notably rainbow trout (something considered in Valentine v
Kennedy – no need to read this in depth, but if you want to you can look at Cornie van der
Merwe and Douglas Bain on this).
u An aside: what about exotic animals? Relatively recently there was a story about snakes that
were decidedly not indigenous to Scotland being found out and about in Inverclyde. These
would not be available for occupation. The owner of such animals would, you would think,
be traceable, and as such occupancy could not take place as it might with a native bird or
mouse that escapes.
Occupancy: Limitations in Scots law (1): Heritable Property

In this and the next slide I’ll explain why occupancy has a limited role in Scots law. FIRST with
reference to land, then with reference to moveables.

- Occupancy- seizing land has no place in Scots’ private law

1. Feudalism
1. All land was ultimately owned by the monarch. Men performed
services for their superior and in turn their superior granted them
some of their lands “in feu”. The grantees were “vassals”.
2. Ownership split into two – the dominium utile (of the vassal) and the
dominium directum (of the superior).
3. Abolished in Scotland
2. Occupancy in heritable property?
1. Erskine, Institute 2.1.11 – Quod nullius est fit domini regis - ownerless
property belongs to the lord king
2. Post-2004 and feudal abolition, occupatio still has no role in relation
to land
3. Can’t simply take land through occupancy- first limitation
4.

Occupancy: Limitations in Scots Law (2): Moveable Property

u Suppose that property has once been owned, and it is not a wild animal capable of
recovering its state of natural freedom, can someone come along later and take it?
Not really, if simply lost- misplaced- the original owner is still the owner
u If the right of ownership is extinguished – by abandonment or negative prescription
– quod nullius est fit domini regis applies.
u Ownership vests in the Crown; it is not open to the first occupier.
u The same rule applies to treasure trove (but see below for particular treasure
issues). See Erskine, Institute 2.1.12.
u All of this limits property which can be occupied

Moveable Property (cont.)- can you acquire it some other way?

u If not occupatio, is another route available? Can you acquire moveables in some
other way in terms of original acquition
u Not really.
u But consider positive prescription and proposed reform thereof.
 u See the Scottish Law Commission’s Report on Prescription and Title to Moveable
Property (2012) (building on the Discussion Paper on Prescription and Title to
Moveable Property (2010)).

What happens to unwanted or lost moveable property?

u Case law suggests you cannot abandon land

u Abandoned property (moveable’s) is something someone has purposely tried to end
their association with.
u Abandoned property, is property given up by owner
u Lost property- where ownership is temporarily uncertain.
u See Reid, para.547.
u Lost – property the ownership of which is temporarily
uncertain.
u Abandoned – property once owned, but the right of ownership
has been given up by the owner.
u General rule for abandoned – quod nullius est fit domini regis - see
Mackenzie v Maclean 1981 SLT (Sh Ct) 40
u Damaged cans of beer in a skip; abandoned? Theft to sell them
on?
u Lost and abandoned property –see now the Civic Government (Scotland) Act 1982
Pt. VI
u Abandoned property goes to the crown

CG(S)A 1982 ss.67-69 on lost and abandoned things

- Regulate; legal consequences when lost or abandoned property is found

- No rule of “finders’ keepers”: s.73.
- Finder does have a role though: s.67.
- Finder of lost or abandoned property is under a duty to take reasonable care.
Further obligated to report his find to a constable, owner or owner of property to
which is it found can claim ownership on finding alone- may however in due court
claim under the statutory procedure for disposal of property
- Neither the finder, employer of finder, or owner of premises which found on
- The Chief Constable’s role: s.68.
u Care and custody, reasonable steps to ascertain identity of owner,
after two months, offer it to the finder, or sell the property, or dispose
of it as he thinks fit.
 - After disposal – if the thing was handed over for value, the original owner has no
remedy. But if it was simply handed over to the finder – he has one year to recover it
(s.71). Special rules for live animals – s.74.
- Crown? Section 78(3) has a “saving” for the Crown’s rights in lost or abandoned
property (which would include portable antiquities found in Scotland) and any such
antiquities should therefore be reported as treasure (Code of Practice (see below) at
2.6).
- [Prescription and Limitation (Scotland) Act 1973 s.8(1)-(2) and Sch.3 – negative
prescription as applicable to the real right of ownership (moveable’s).]

Antique Moveable Property? Treasure trove

u Treasure found in earth which once had an owner but is no longer known,
does not belong to the owner of land found on, nor finder but goes to the
crown
u Not as such abandoned: Carey Miller with Irvine, Corporeal Moveables
para.2.06
u But the owner cannot be found, and so quod nullius est fit domini regis. See
Stair, Institutions 2.1.5.
u The basis of the right: feudal or prerogative? Lord Advocate v University of
Aberdeen and Budge 1963 SC 533 per Lord Hunter- noted treasure trove is
not really a category on its own, treasure should be reported to the queen’s
lord treasurer remembrancer, should be reported by finder-could risk
prosecution for theft or chief constable who reported to
u Case concerned objects found on island. Whether the crown could claim as
found in udal land- land not subject to land law of queen. Argued that the
right of crown was not applicable to Orkney and Shetland. Was claimed by
crown
u Disposal of treasure trove: The Q&LTR

The Queen’s and Lord Treasurer’s Remembrancer (QLTR)

u The Crown’s representative in Scotland who deals with ownerless property.

u Bona vacantia (ownerless goods/abandoned property).
u Treasure trove.
u Ultimus Haeres (Succession).
u Rewards for finding treasure?