Class notes
Property Law - Lecture 2 - Original Acquisition of Property
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Lecture notes for property law with case descriptions. Author achieved a first-class grade in the module.
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Lecture 2 – Original Acquisition of PropertyContents
Occupancy ............................................................................................................................................ 1
Specification ......................................................................................................................................... 3
Accession .............................................................................................................................................. 4
Commixtion and Confusion................................................................................................................. 14
Positive Prescription ........................................................................................................................... 14
Registration of Title ............................................................................................................................ 16
Derivative Acquisition ......................................................................................................................... 16
Introduction
In ‘original acquisition’, the acquirer gains a brand new title to the property. This contrasts with
‘derivative acquisition’, where the title is only good as that of the previous owner.
Instances of original acquisition can be divided into two broad categories. The first is where the
property has never been owned. The category is confined to moveables, for, in the normal case at
least, land cannot be ownerless. Land, unless owned by someone else, belongs to the Crown. (Erskine,
II, 1, 11).
The second category is where the property has been owned. Here, the law extinguishes the existing
title at the same time as it confers the new title on the acquirer. Naturally, such a serious consequence
means that the operation of original acquisition is strictly limited. It is also restricted by the rule that
property, if abandoned, passes to the Crown, rather than becoming ownerless. For example, if a
married couple separate acrimoniously and the wife throws her wedding ring away, it becomes the
Crown’s. Similarly, where title to moveables is lost by negative prescription, it falls to the Crown. For
these reasons, derivative acquisition is far more common. Several of the original acquisition doctrines
come from Roman Law and do not always meet the needs of the modern age.
Occupancy
Occupatio (occupancy)
• The doctrine of Occupancy i.e. the taking of ownerless property according to the maxim quod
nullius est fit occupantis. - that which belongs to nobody becomes the property of the keeper.
• Where something moveable is not already owned it can be acquired by Occupancy
(Occupatio). This is achieved by taking possession of the property with the intention to
become owner. There is little ownerless property. The main examples are shells, pearls, gems,
pebbles on the shore, running water and wild animals. With an exception, occupancy can take
place only once. For example, once collected a pearl becomes owned. It can never be
ownerless again.
,• This does not mean that if you come across property which is apparently abandoned that you
can just pick it up and acquire the property.
• This method is limited by:
• the scarcity of ownerless property, nothing in Scotland is strictly ownerless. If
property is abandoned or lost, it is not a free for all for everybody to pick it up and
acquire ownership of it. It falls to the Crown.
Lord Advocate v Aberdeen University & Budge 1963 SC 533
A team of students from Aberdeen University were on a field trip to St Ninians’s Isle
in Shetland and discovered eighth-century treasure hidden underground. The
University appropriated the treasure and took it to its museum in Aberdeen. The Lord
Advocate, on behalf of the Crown, sued successfully for delivery of the treasure.
• the role of the Crown as owner of lost or abandoned property according to the maxim:
quod nullius est fit domini Regis – that which now belongs to no one (but used to
belong to somebody) falls to the Crown, becomes the property of the crown.
• the position of the Crown in Feudal land tenure as the ultimate owner of most of
Scotland. Lost property must be reported to the police within a reasonable time of
finding. (or handed to into the occupier of premises on which it is found.)
• the fact that occupation, by itself, is insufficient to create a real right to corporeal
heritable property. Squatters rights - Cannot acquire heritable property simply by
taking possession of it. Even if you enter an abandoned house and stayed in it for 20
years, still not require a real right. Would not acquire ownership without registering
the deed in your favour in the property right.
• Wild animals. If they regain liberty, they become unowned once more. The rule does
not apply to farmed fish, on the basis that they are not truly wild. Animals which have
freedom of movement but return to a particular place, such as bees and pigeons,
remain owned provided that they continue to come back. Where game is seized
illegitimately by poachers on someone else’s land they will acquire a title by
occupancy, but this can be subsequently forfeited by a court.
• Wild animals, birds and fish (excluding salmon, which are “Royal fish” and belong to the
crown) are susceptible to acquisition by occupancy if they are taken and controlled. It is
permissible for any person to fish for and take wild trout and other fish in rivers and streams.
This is because fish are res nullius.
Valentine v Kennedy 1985 SCCR 89 (Criminal case)
Involved a prosecution for theft of trout, which had escaped from an enclosure. The accused
in the case acquired them, poached them. They were prosecuted for theft and argued that
they should not be prosecuted because the trout having escaped were ownerless.
, The sheriff did not agree with that argument and took the view that notwithstanding the trout
had escaped, they remained the property of the owner of the enclosure. Therefore, capable
of being stolen from that owner. Also observed that the trout in question were rainbow trout,
which was not a native species to Scotland, therefore could not be regarded as truly wild
animals.
Although the fish had escaped, the sheriff held that ownership in them had not been lost.
They could not be regarded as res nullius because the fish were not of a native species and,
having been possessed, were capable of being stolen.
• Mackenzie v Maclean 1981 SLT (Sh.Ct.) 40
• See also the provisions of the Civic Government (Scotland) Act 1982, ss67-79 regarding lost or
abandoned property
Specification
Specificatio (specification)
• The doctrine of specification, which is invoked where a new thing has been made from
materials belonging, wholly or partly, to someone other than the maker and where the
materials can no longer be simply returned to their original owner.
E.g. A owns grapes; B makes wine from them; who owns the wine? The person who made the
wine, owns the wine. Even though you have made the wine from grapes belonging to
someone else, you own the wine. Person A is entitled to a personal right to payment for the
value of supplying the grapes.
• The basic rule is that ownership belongs to the maker - Bell, Principles, 1289
• Specificatio only exists where the materials used by another cannot be put back into its
original form. The process must be irreversible, if not then the ownership remains with the
owners of the components.
• Where a new thing is created with the agreement of the owners of the component parts, on
the other hand, then the terms of the agreement will determine ownership.
Cases
• International Banking Corp. v Ferguson Shaw & Sons 1910 SC 182
Involved the defenders acquiring barrels of oil they made into lard. One of the questions of
the court was whether specification operated so that the defenders who had made the lard
owned the lard. The court decided that they did own the lard as specification operated and
they were lawfully able to sell it on to customers. The pursuers were left with a money claim
for the oil that was supplied.
Where a maker has acted in bad faith, he generally will not acquire a right of property in the
manufactured property.
• McDonald v Provan of Scotland Street Ltd. 1960 SLT 231
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