A jmall damage
committed
upon
ufurped cloth
does not
transfer the
property o f
i t ; but a confederate
da-
mage gives
theproprietor
an option of
taking it
back, (with
a compenfa-
tion for the
damage,) or
malting it
over to the -
ufurper for
the value*
fimilar to that of a large rent in cloth. If, however, a perfon flay er
cut off the leg of a quadruped of which the flefli is not edible, the
proprietor is entitled to take from him a compenfation for the whole of
the value; for in fuch cafe the flaying or maiming is in every refpect
a deftruftion. It is otherwife where an ufurper cuts off the hand or
foot of a male or female Have; for in that cafe the proprietor muft receive
back the Have, together with the fine, fince the capability
of yielding profit ftill exifts in man after the lofs of a foot or a
hand.
I f a perfon tear a piece of cloth, the property of another, fo as to
occafion a fmall rent in it, he is in that cafe refponfible for the damage,
and the cloth remains with the proprietor, fince the fubftance of it is
extant in every refpedt, nothing more having happened to it than a
defe£t;— whereas, i f the rent were large, fo as to deftroy many of its
ufes, the proprietor would in that cafe have it in his option either to
take the whole of the value from the ufurper and give him the cloth,
(fince he has deftroyed it in every refpedt, even as much as if he had-
burnt it,) or to keep the cloth and take a compenfation for the damage;
becaufe a large rent is in one refpeft merely a defell, inafmuch as the
fubftance of the cloth is ftill extant, as well as fome of its ufes like-
wife. It is to be obferved that what is recited by Kadoaree upon
this fubject, implies that a large rent is fuch as occafions a deftrudtion of
many of the advantages. In fact a large rent is fuch as occafions-a deftruc-
tion of fome of the parts of the cloth, and alfo of fome of its u fe s fom e
of the parts and fome of the ufes ftill remaining,, (as where, for in-
fiance, before the accident of the rent, the cloth was capable of being;
made into an upper or under garment, and afterwards lofes that capa,
bility;) whereas a fmall rent is fuch as does not induce a deftruflion
o f any of the ufes, but merely occafions a damage; for Mohammed, in
the Mabfoot, has laid “ the cutting of a garment is a great damage,
“ notwithftanding it ;pccalion only a deftructiou of fome of fehe
I f a perfon ufurp land, and plant trees in it, or erect a building
upon it, he muft in that cafe be directed to remove the trees and clear
the land, and to reftore it to the proprietor; becaufe the prophet has
faid “ there is no right over the feed o f the opprejfor,” (alluding to the
planting of trees;) and alfo, becaufe the property of the proprietor
ftill exifts as it did before, fince the land has not been deftroyed, nor
has the ufurper become proprietor, inafmuch as he cannot become the
proprietor but by fome one of the caufes which eftablifh property, o f
which none here exift. In this cafe, moreover, ufurpation is not
eftablifhed * ; and therefore the perfon who has fo employed the land
of another is ordered to clear and reftore it to the owner, in the fame
manner as in the cafe of his putting his food into the veffel of another.
If, however, the removal of the trees or the building be injurious to
the land, the proprietor of the land has, in that cafe, the option of
paying .to the proprietor of the trees or the building a compenfation
equal to the value they would bear when removed from the ground,
and thus poffefling himfelf o f them; becaufe in this there is an advantage
to both, and the injury to both is obviated. By the expreflion
“ Pay ing a compenfation equal to the value they would bear when
removed, is to be underftood paying the value which the freer or
houfe bear upon the proprietor being dit-eBed to remove them; becaufe
his fight exifts only with refpecT: to the trees or building “ as required
to be removed,” fince he is not at liberty to leave them upon the
ground. It is therefore requifite to appreciate the land without the
trees or the building, and afterwards to appreciate it with the trees or
building, (as removeable at the landholder’s defire;) and whatever
may be the excefs of the fecond appreciation over the firft is the
« r .T h " e, f ppe) rs’ at ^rft % ht> » fort o f incongruity in opening the cafe “ I f a perfon
ufurp, & c . and then faying “ ufurpation is not eftablifhed.” — T h e expreflion how- n BBS I BB B M 11B us requiring atonement, is not
eftablifhed, the reafon o f which is, that ufurpation cannot take place with refpefl to
iixed property, as has been already explained j fee p. 526.
Cafe o f planting
or building
upon
ufurped land.
Z Z Z 2 amount