amount of the compenfation which the proprietor of the land is required
to pay to the proprietor of the trees or building.— (It is to be
obferved that the value of trees or of a building which are liable or required
to be removed is lefs than that of trees or a building which are
permitted to Hand, fince the expence of removal moll be deduced
from the value of trees or buildings which are removeable.)
Cafe o f dying
ufurpedcloth;
or grinding
ufurped
wheat into
Hour.
I f a perfon ufurp the cloth of another and then dye it red, or the
flour of another and then mix it with oil, in that cafe the proprietor
has the option of taking from the ufurper a compenfation equal to the
value of the white cloth, or an equal quantity of flour, giving the red
cloth or the mixed flour to the ufurper,— or, of taking the red cloth
or the mixed flour, giving to the ufurper a compenfation equal to the
additional value thefe articles may have acquired from the red dye, or
the mixture of oil. Shafei maintains that in the cafe o f dyed cloth the
proprietor of it has a right to take it, and then to tell the ufurper to
feparate and take, to the utmoft of his power, his dye from i t ; for
he holds this cafe to be analogous to that of a plot of ground; (in
other words, if a perfon ufurp a pieGe of ground belonging to another,
and afterwards eredt a building upon it, the proprietor is entitled to
take the ground, deliring the ufurper to dig up and carry away his
building;) becaufe the feparation of a dye from llained cloth is equally
practicable with the removal of a building from the ground on which
it Hands. It is otherwife in the cafe of oil mixed in flour, becaufe
the feparation of the oil is then impracticable. The argument of our
doctors is that, in what they have advanced on this point, an attention
is ihewn to the interefts of both parties, an option, however,
being allowed to the proprietor of the cloth, as he is the original. It
is otherwife in the cafe of a plot of ground; for in that inftance the
ufurper is entitled to the fragments of the houfe after its being pulled
down (that is, to the bricks, wood, &c.) whereas a dye, when fe-
parated from cloth, is loll, and cannot be collected by the ufurper of
the cloth. It is alfo otherwife in the cafe of a garment blown by the
wind
wind into the vat of a dyer, and becoming llained in confequence ; for
in that cafe the dyer is not refponfible for the garment: on the contrary,
the proprietor of the garment mull take it fo llained, and pay
to the dyer the value of his dye, as in this cafe no degree of blame i's
imputable to him. It is to be obferved that Aboo AJfama has faid that
when a perfon ufurps the cloth of another, and dyes it, the proprietor
of the cloth may, ifhepleafe, fell it, and deduCl from the price a
proportion equal to the value o f the white cloth, and give to the dyer
a proportion equal to the value of his dye; for as the proprietor of the
cloth has it in his power to refufe taking the dye and paying a compenfation
for its value, it follows that when he does refufe to take it,
the cloth mull be fold, that he may receive his proportion, and that
the interefts of both may be attended to. This reafoning of Aboo A ffama
equally holds in the cafe where a garment is llained in confequence
of being blown by the wind into the velfel of a dyer; and in
the fame manner, the reafoning adduced in the cafe of cloth equally
holds in the cafe of flour. As flour, however, is of the clafs. of limi-
lars, it mull be compenfated for by a limilar; whereas cloth, as being
an article of price, mull be compenfated for by a payment of its value.
Mohammed, in the Mabfoot, has faid that flour mull alfo be compen-
lated for by value, becaufe flour is altered by being baked, and is no
longer of the clafs of limilars. (Some have explained the meaning of
the value of flour to be a fm ilar quantity; and that Mohammed has
ufed the term value inftead offm ilar, becaufe aJtmilar is an equivalent,
in the fame manner as value.) It is to be obferved that a yellow dye is
the lame as a red dye; but that with regard to a black dye there is a
difference of opinion; Haneefa holding it to be a defedl, whereas the
two difciples maintain that it is not a defedl, but, on the contrary,
the caufe of additional value. Some have laid that this difference of
opinion ariles from the different periods of time; and others have faid
that if the cloth be of fuch a nature that a black dye occafions a diminution
o f its value, the dying of it mull in that cafe be confidered as a
damage or defedl; but that if it be of fuch a kind as to receive an inore
o f e