Ufurpation
(fo as to oc-
cafion re-
fponfibility)
cannot take
place but in
moveable
property.
Whenever, therefore, it becomes known that the article ufurped has
really been loft in the pofleffion of the ufurper, the obligation to re-
ftore the actual thing is annulled, and a compenfation (that is, the
value of the thing) becomes obligatory. It is further to be obferved,
that ufurpation (fo as to occafion refponfibility) takes place only with
refpeft to moveables, fuch as a garment, or the like; for the deftruc-
tion of the proprietor’s pofleffion cannot otherwife be effected than by
removal. If, therefore, a perfon ftiould ufurp land, and the land be
deftroyed in his pofleffion, (that is, be rendered ufelefs by an inunda~
tion, or the like,) the ufurper is not refponfible for it. This is the
opinion of Haneefa and Aboo Toofaf. Mohammed alleges that the
ufurper is refponfible for the land; and this is the firft opinion of Aboo
Toofaf, which has like wife been adopted by Shafei. T h e arguments
in favour of the latter opinion are, that the pofleffion of the ufurper is
eftablifhed with refpeft to the land ufurped, which occafions a deftruc-
tion of the proprietor’s pofleffion, fince it is impoffible that one thing
can be in the pofleffion of two people at one and the fame time.—
Ufurpation, therefore, which means the annihilation of the proprietor's
pofleffion, and the eftablifliment of the ufurper s, exifts in the cafe of
land; hence land is in this refpeft the fame as moveable property, and
therefore the ufurper of it is refponfible for i t ; in the fame manner as a
denying truftee; that is, i f a perfon depofit land in the hands of another,
and that other afterwards deny the depofit, in that cafe he
becomes refponfible for the land, and fo alfo in the cafe in queftion.
T h e arguments of Haneefa and Aboo Toofaf are, that ufurpation is the
eftablifliment of the ufurper’s pofleffion by a deft ruction of that of the
proprietor, in fuch a manner that the caufe of the efiablijhment of the
pofleffion, and of the deflrublion of it, is the action of the ufurper
with refpeft to the thing ufurped, fuch as the removal of it from one
place to another. Now this is imprafticable with refpeft to land or
houfes, becaufe thé proprietor’ s pofleffion of thefe cannot otherwife
be deftroyed than by driving him from them. But the driving away
of the proprietor from his houfe (for inftance) is not an aftion of the
ufurper
ufurper with refpeft to the thing, but with refpeft to the perfon of
the proprietor, and therefore’amounts to th e fame as if he were to remove
the proprietor from his cattle. In the ufurpation of moveables,
on the contrary, the removal is the aftion of the ufurper operating
with refpeft to the article; and this is ufurpation. With refpeft to
the cafe of a truftee who denies the depofit, (adduced by Mohammed
as being analogous to the cafe in queftion,) it is not admitted to be
fuch; but allowing that it were, it is anfwered that the neceffity for
a compenfation in that inftance arifes from the want of care which is
manifefted by the denial of the truftee.'
A n ufurper is refponfible, according to all our doftors, for what- The
ever he breaks of a houfe, either by his refidence in it, or by his refponfibiefor
pulling it down, becaufe that is a wilful deftruftion, and compenfa- thefurniture:
tion for fixed property is incurred by wilful deftruftion,— as where,
for inftance, a perfon removes the manure or water from land, that
being an aft with refpeft to the fubftance of the land.
I f a perfon ufurp a houfe, fell it, and deliver it to the purchaler, but i f he fell
and afterwards acknowledge the ufurpation, and the purchafer deny ^pro^iMor
i t ; and there be no witnefles on the part of the proprietor to prove it, *lave no »>*-
in this cafe there is a difagreement between Haneefa and Aboo Toofaf “ofrefpM-8
on one fide, and Mohammed on the other; for, according to the two fibk'
difciples, the feller of the houfe is not refponfible on account o f the
fale and delivery of it to the purchafer; (contrary to the opinion of
Mohammed;) becaufe fale and delivery to the purchafer is merely an
ufurpation on the part of the feller; and ufurpation of moveable proproperty
(according to the two difciples) does not induce compenfation.
I f ufurped land be damaged by the cultivation of it, the ufurper a ufurper of
muft compenfate for the damage, fince he has deftroyed part of the land 5s re'
J r fponfible for
land.