Original Acquisition

Question 1

Basic Definition

Answer 1

It creates a new title of ownership

Question 2

Occupatio

Answer 2

Appropriating something for one’s self which have no owner by appending them

Question 3

Scope of Occupatio

Answer 3

Old Roman - quod nullis est fit occupantis (That which belongs to no one becomes the property of the owner) Such as beasts, pearls in shells, pebbles on shores. Exception in royal fish (Whales, Dolphins Reid) If an animal has never been domesticated then occupatio can occur, but if it is then it remains the property of the owner.

Question 4

Possession in terms of Occupatio

Answer 4

If in possession of unowned thing then you are owner

Question 5

Appropriation test

Answer 5

1) Requistise animus (mental element) It can be inferred
2) Physical Act? When fairly proceeding towards full accomplishment, wounding to death then someone intervene then it does not mean then first one has ownership. But if A closely pursuing, then B intervenes there are conflicting sources. Stair - B is owner, may be justly compelled to return, but Bell says - A is owner
Aberdeen Artic Co v Sutter - Harpooners, Bell’s position used.
If escape then unless hot pursuit then not still owner
3) Does it have to be lawful? None withstanding that they are a criminal they get occupatio. Allow item that was poached may be forfeiture to the crown, can’t happen unless owned

Question 6

Consequences of Appropriation

Answer 6

1) Taker becomes Owner
2) All who try to appropriate the thing are thieves
3) Wild animals can recover natural state of freedom
Some animals are animus revertendi (return) do not recover natural state
Valentine v Kennedy - Rainbow trout, stream/pond, held they were wild

Question 7

Limitations on Occupatio

Answer 7

1) Heritable Property (Feudalism) Has no role in relation to land due to feudalism (GoT style land)
2) If owned and can’t regain natural state then ownership is extinguished by abandonment/negative prescription, then goes to the crown
3) Abandoned Property - Mackenzie v Maclean, Land cannot be abandoned.
Civic Government (Scotland) Act 1982 pt VI no rule of finder keepers S63, S67 who must be given to, S68 what that individual must do with it, can return to finder if not find owner in 2 months. If it was sold then original owner no remedy, but if handed over has a year to recover it. Dogs and live stock are different and rules do not apply.
Prescription and Limitation (Scotland) Act 1973 - Negative prescription can occur, but positive prescription can’t

Question 8

Treasure Trove

Answer 8

Aren’t abandoned but can’t find owner, so go to the Monarch. Cleghorn & Bryce v Baird - Money in wall, not antique enough
Audrey Canning v Glasgow Caledonian University and Democratic Left Scotland - Whoever has strongest claim for property

Question 9

Accession

Answer 9

Two pieces of corporeal property have joined together in such a way that one is now the accessory and one is the principle. Moveable to Moveables, Moveables to land, and land to land.
Things by there nature may become immoveable by being fixed to an immoveable subject for use. Erskine
No form of subjectivity - Shetland Islands Council v BP Ltd
Brand’s Trs v Brand’s Trs - That which becomes attached to the land becomes the owner of that land
Extinction of accessory title, but can get compensation only if good faith, Shilliday v Smith
J L Cohen Motors v Alberts - Easily removable then no accession

Question 10

Test for Accession (Moveables to Land)

Answer 10

Physical Attachment - Greater the attachment the better. Christie v Smith’s Executrix (Summer house)
Functional Subordination - Improvement, or better enjoyment. Fife Assessor v Hodgson
Permancey/Quasi-Permancey - Doesn’t have to be forever, just foreseeable future. Howie’s Trs v McLay, TSB Scotland plc v James Mills.

Question 11

Moveables to Moveables Accession

Answer 11

Stair believes must look at design to figure out which is principle and accessory, money value (gem principle to ring) Bell focused more on non existence without the other, it completes the other thing

Question 12

Boskabelle Ltd v Laird

Answer 12

Have a right over your sown crops

Question 13

Specificatio

Answer 13

New thing made, maker is owner unless can be reduced to former states. International Banking Corporation v Ferguson Shaw & Sons

Question 14

Commixition and Confusion

Answer 14

If can be separated then do so, if not then common ownership