Original acquisition

Question 1

What is original acquisition comprised of?

Answer 1

• Occupatio
• Specificatio
• Commixtio
• Confusio
• Accession

It can also include right of a bone fide possessor to the fruits of the property and positive prescription.

Question 2

What is occupatio?

Answer 2

Occupatio regards the acquisition of strictly ownerless corporeal moveable property by taking possession of it and is mostly restricted to wild animals.

Question 3

How does an individual take possession of a corporeal movable under occupatio?

Answer 3

By taking possession of the thing. This means that, domesticating or caging a wild animal will suffice to claim ownership but so too will the wild animal ‘returning to its home’ being the owner.

You do not have to lay hands on the animal in your attempt to claim so long as it was reasonably foreseeable that you were about to.

Question 4

At what point can an individual be said to have appropriated property under occupatio?

Answer 4

The act of appropriation is effectual to vest the property only when complete, but it is held complete while fairly proceeding towards full accomplishment (Bell).

• Sutter v Aberdeen Arctic Co (Drogging whale case)

The taking need not be lawful (Stair).

Question 5

How is ownership lost under occupatio?

Answer 5

In the case of animals ferae naturae, where an animal is allowed to roam but has the habit of returning, ownership is lost if this habit is lost (Stair).

But, where an animal ferae naturae escapes or loses the habit of returning, ownership is retained as long as the owner pursues it with a reasonable chance of recovery (Erskine).

Where a wild animal successfully escapes, it becomes ownerless.

Question 6

What is specificatio?

Answer 6

The acquisition of property by making a new species, a new kind of thing, out of material belonging to another person but not by arrangement with that person (Reid).

Question 7

The doctrine of specificatio has no application where the making of the thing is carried out by agreement with the owner of the materials.

True or False?

Answer 7

True.

• Wylie and Lochhead v Mitchell (Building of a Hurst - held co-ownership not specificatio)

However, the doctrine does not apply to the ordinary development of animals (Kinloch Damph Ltd v Nordvik Salmon Farms Ltd).

Question 8

Discuss the operation of specificatio.

Answer 8

There is a new thing when the materials cannot be reduced to their former state (Erskine).

• McDonald v Provan (Car could be unwelded and in bad faith, not specificatio)

It is unclear whether good faith is required.

Question 9

What remedy exists for individuals whose material is lost to a new thing through specificatio?

Answer 9

The owner of the materials is entitled to compensation (International Banking Corporation v Ferguson Shaw & Sons).

Question 10

What is commixtio?

Answer 10

Commixtio applies where solid corporeal moveable property belonging to more than one person is mixed without the creation of a new thing.

Question 11

What is confusio?

Answer 11

Confusio applies where liquid corporeal moveable property belonging to more than one person is mixed without the creation of a new thing.

Question 12

Who owns commixtio and confusio mixed property?

Answer 12

Where the components cannot be separated, they are owned by the owners of the components in common according to the value of their contributions (Stair).

If you do not know the exact contribution, the individuals co-own the whole mass.

Question 13

What is accession?

Answer 13

When two pieces of property become joined together in such a way that one (known as the ‘accessory’) is considered to have become subsumed in the other (known as the ‘principal’) (Reid).

Question 14

What are the effects of accession?

Answer 14

• The accessory is now part of the principal
• Where the accessory is moveable and the principal heritable, the accessory becomes heritable
• The owner of the principal acquires ownership of the accessory
• If the accessory is severed from the principal, it continues to belong to the owner of the principal

These facts apply even in cases of illegality.

Question 15

What are the four forms of accession?

Answer 15

• Moveables to land
• Moveables to moveables
• Land to land
• Accession by fruits

Question 16

What are the criteria for accession?

Answer 16

1. Physical attachment
2. Functional subordination
3. Permanency

Subjective factors are irrelevant: Accession operates mechanically and without regard to the circumstances which gave rise to it (Reid).

You cannot contract out of it (Shetland Islands Council v BP Petroleum Development).

Question 17

Explain the application of the accession criteria to movables conceding to land.

Answer 17

1. Physical attachment:
   Where the accessory cannot be removed without serious injury, it is regarded as having acceded (Dowall v Miln).

Accession may still have occurred even where the accessory is resting on its own weight if other factors are present enough (Christie v Smith’s Executrix - Summer house acceded to property through sale).

2. Functional subordination:
   The question is whether the article is attached for improvement of the land or building or for better enjoyment of the article itself (Fife Assessor v Hodgson - pipes acceded to house)(Cochrane v Stevenson - Art had not acquiesced to house).
3. Permanence: A degree of permanence is required (Howie’s Trs v McLay)(Brand’s Trs v Brand’s Trs).

Question 18

Discuss accession in the case of moveables acceding to moveables.

Answer 18

Applies where there is an indissoluble union between two movables, where there can be no separation. (Bell)

Bell’s rules:
- If one cannot exist separately, that is the accessory
- If one is added “to adorn or complete” the other, it is the accessory
- Then the larger object is the principle
- Then most valuable is the principle

Question 19

Discuss accession in the case of land acceding to land, known as aluvion.

Answer 19

Alluvion is concerned with the changes over time of natural water boundaries.

Neighbouring proprietors may contract out of alluvion agreeing for the boundary to remain as it is. (Land Registration etc (Scotland) Act 2012, s66).

Question 20

Discuss accession by fruits.

Answer 20

Examples:
- The young of animals while in utero (the lamb is yours if it comes from your girl sheep)
- Natural products of animals or plants
- Trees and other plants

Exception: Industrial growing crops (Boskabelle Ltd v Laird)

Where a non-owner possesses property that he reasonably believes that he owns, he is entitled to retain the fruits of that property.