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
2. To constitute occupancy there must be a taking of a thing corporeal,
belonging to nobody with an intention of becoming the owner of it.
3.-1. 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.
4.-2. The thing must be susceptible of being possessed; an
incorporeal right, therefore, as an annuity, could not be claimed by
5.-3. 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.
6.-4. 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.
7. Among the numerous ways of acquiring property by occupancy, the
following are considered as the most usual.
8.-1. 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.
9.-2. 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.
10.-3. The benefit of the elements, the light, air, and water, can
only be appropriated by occupancy.
11.-4. 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.
12.-5. It is by virtue of his occupancy that the owner of lands is
entitled to the emblements.
13.-6. Property acquired by accession, is also grounded on the right
14.-7. Goods acquired by means of confusion may be referred to the
15.-8. 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.
, adverse possession
, de facto
, de jure
, derivative title
, fee fief
, fee position
, fee simple
, fee simple absolute
, fee simple conditional
, fee simple defeasible
, fee simple determinable
, fee tail
, free socage
, having title to
, knight service
, lay fee
, legal claim
, legal possession
, original title
, property rights
, proprietary rights
, staying over
, tenure in chivalry
, villein socage