Occupancy
(Reference: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
OCCUPANCY. The taking possession of those things corporeal which are without an owner, with an intention of appropriating them to one's own use. Pothier defines it to be the title by which one acquires property in a thing which belongs to nobody, by taking possession of it, with design of acquiring. Tr. du Dr.de Propriete n. 20. The Civil Code of Lo. art. 3375, nearly following Pothier, defines occupancy to be "a mode of acquiring property by which a thing, which belongs to nobody, becomes the property of the person who took possession of it, with an intention of acquiring a right of ownership in it."
To constitute occupancy there must
be a taking of a thing corporeal, belonging to nobody with an intention of becoming
the owner of it.
The taking must be such as
the nature of the time requires; if, for example, two persons were walking on the
seashore, and one of them should perceive a precious stone, and say he claimed it as his
own, he would, acquire no property in it by occupancy, if the other seized it first.
The thing must be susceptible of
being possessed; an incorporeal right, therefore, as an annuity, could not be claimed by
occupancy.
The thing taken must belong
to nobody; for if it were in the possession of another the taking would be larceny, and if
it had been lost and not abandoned, the taker would have only a qualified property in it,
and would hold the possession for the owner.
The taking must have been
with an intention of becoming the owner; if therefore a person non compos mentis should
take such a thing he would not acquire a property in it, because he had no intention to do
so. Co. Litt. 41, b.
Among the numerous ways of
acquiring property by occupancy, the following are considered as the most usual.
Goods captured in war, from public
enemies, were, by the common law, adjudged to belong to the captors. Finch's law, 28; 178;
1 Wills. 211; 1 Chit. Com. Law, 377 to 512; 2 Woodes. 435 to 457; 2 Bl. Com. 401. But by
the law of nations such things are now considered as primarily vested in the sovereign,
and as belonging to individual captors only to the extent and under such regulations as
positive laws may prescribe. 2 Kent's Com. 290. By the policy of law, goods belonging to
an enemy are considered as not being the property of any one. Lecon's Elem. du Dr. Rom.
Sec. 348; 2 Bl. Com. 401.
When movables are casually lost by
the owner and unreclaimed, or designedly abandoned by him, they belong to the fortunate
finder who seizes them, by right of occupancy.
The benefit of the elements, the
light, air, and water, can only be appropriated by occupancy.
When animals ferae naturae are
captured, they become the property of the occupant while he retains the possession; for if
an animal so taken should escape, the captor loses all the property he had in it. 2 Bl.
Com. 403.
It is by virtue of his occupancy
that the owner of lands is entitled to the emblements.
Property acquired by accession, is
also grounded on the right of occupancy.
Goods acquired by means of
confusion may be referred to the same right.
The right of inventors of machines
or of authors of literary productions is also founded on occupancy. Vide, generally, Kent,
Com. Lect. 36; 16 Vin. Ab. 69; Bac. Ab. Estate for life and occupancy; 1 Brown's Civ. Law,
234; 4 Toull. n. 4; Lecons du Droit Rom. Sec. 342, et seq.; Bouv. Inst. Index, h.t.
OCCUPANT or OCCUPIER. One who has the actual use or possession of a thing.
He derives his title of occupancy
either by taking possession of a thing without an owner, or by purchase, or gift of
the thing from the owner, or it descends to him by due course of law.
When the occupiers of a house are
entitled to a privilege in consequence of such occupation, as to pass along a way, to
enjoy a pew, and the like, a person who occupies a part of such house, however small, is
entitled to some right, and cannot be deprived of it. 2 B. & A. 164; S. C. Eng. C. L.
R. 50; 1 Chit. Pr. 209, 210; 4 Com. Dig. 64; 5 Com. Dig. 199.
