use, it is impossible for all who have the right of use, to use the property at one and the same time. But he who is in fact using it is exercising his right. Therefore, since no man has the right of preventing another from using his own right, no one can prevent him from using it who is in fact enjoying the use; consequently although the right of using the thing belongs to one, never theless he ought to wait until the use of the other shall have been ended.
Thus if any one is in fact drawing water from a common well, which is the property of a corporation, or shall have been the first to start to draw it, you cannot put him away so as to draw it first yourself,
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but you must wait until he has drawn the water and made place for you. In like manner if any one is in fact fishing in a public river, you cannot prevent him from fishing in that place, but you ought to wait until he has ended his fishing, if you wish to fish in the same place.
§ 112. The same further considered
§ 111.
If public property or that of a corporation does not admit of a use except such as consists in consumption, that is, if the use consists in the taking of things which are consumed in the use, he who is in fact taking the thing or is starting first to take it, cannot be restrained from taking it. For if the use consists in the taking of things of the sort which are consumed in the use, it is impossible that several who have the right of using take the same thing. Therefore then, as appears before, he who in fact is taking the thing or is starting first to take it, cannot be restrained from taking it, so that you may take it.
§§ 35, 36, part 2, Jus Nat.
§ 88.
Thus if he who has the right of cutting timber in a forest ripe for cutting, is in fact cutting it, or is coming first to cut, you cannot prevent him from cutting this timber for the reason that you prefer to cut the same. The same thing is understood, if any one cuts grain with a sickle in a common meadow. The same law holds as in the original common holding. For the use of public property and of the property of a corporation, since it is common to the people as a whole and to the individuals of a corporation, imitates the use of things in the original common holding, nay, is in harmony with it.
§ 113. Laws and agreements to be made concerning the use and preservation of public property and that of a corporation
§ 9, part 8, Jus Nat.
§ 88 h.
§ 969, part 8, Jus Nat.
§ 813, part 8, Jus Nat.
The ruler of the state can pass laws concerning the use of public property and that of a corporation and concerning the preservation of the same, as far as this shall be to the advantage of the people or the corporation, and concerning the use of the property of a corporation and its preservation those who belong to the corporation can also arrange by agreements. For the use of public property pertains to the common good of the state, and since corporations belong to the state, the use of them also pertains
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to the good of the state. Therefore, since civil laws prescribe the means by which the good of the state is obtained, and legislative power belongs to the ruler of the state, the ruler of the state can make laws concerning the use of public property and that of a corporation. Which was the first point.
But since the use cannot continue unless the substance of the thing is preserved, it is thus plainly evident that the ruler of the state can pass laws concerning preservation of public property and that of a corporation. Which was the second point.
§ 495, part 1, Jus Nat., and § 88 h.
And because public property ought to serve the advantage of the whole state, and the property of a corporation the advantage of the corporation, such laws ought to be passed concerning the use of public property and that of the corporation as will be to the advantage of the people or of the corporation. Which was the third point.
§ 94.
§ 118, part 2, Jus Nat.
§ 698, part 3, Jus Nat.
§ 393, part 3, Jus Nat.
§ 788, part 3, Jus Nat.
Finally, since the use of the property of a corporation belongs to the corporation, moreover, since any one can dispose of his own property as he likes, those who belong to a corporation can agree together concerning the use of the property of the corporation, and that such use can be enjoyed, they can agree concerning the preservation of the same, and since they are not able to bind themselves one to the other except by a promise, they can enter into agreements. Which was the fourth point.
§ 532, part 8, Jus Nat.
§ 585, part 8, Jus Nat.
§ 966, part 8, Jus Nat.
Cap. 5, part 8, Jus Nat.
§§ 395, 982, part 8, Jus Nat.
In the particular case particular reasons are given why laws are to be passed, and of what sort, concerning the use and preservation of public property and of that of a corporation. But they are taken from general public law, which we have set forth in the eighth part of “The Law of Nature.” So it is plain that it ought to be the concern of the ruler of a state that each should be saved from the wrong of others. Therefore, if it is to be feared that in the use of public property or that of a corporation one may easily wrong another, the use must be limited by a law by which care is taken that wrong may not be done thereby, and a penalty sufficient for restraining a transgression of the law must be added to the same. Here those same points are to be observed which we have proved in general concerning the theory of civil law or the method of rendering civil laws effective in accordance with natural laws. In like manner the ruler of a state is also bound to care for a corporation for the future. Therefore he ought to provide
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lest anything may be done in the use at present which may injure the use in the future. If those who belong to the corporation at present should be negligent in preserving its property, they can be compelled by force to do those things which are necessary for the preservation of the thing and not to do those things which are detrimental to it. So if any one shall have been allowed to cut as great an amount of timber as he shall have desired in the forest ready to cut; for the sake of preserving the forests the ruler of the state can prescribe by law how much he may cut yearly and lay down those rules which are necessary for increasing the production of timber. Such things likewise could be determined by agreement provided only that all were sufficiently ready to do those things which are in harmony with natural equity and did not prefer their present advantage to the future welfare of posterity. Therefore civil laws ought to supplement the defect of the agreements.
§ 114. At whose expense the property of a corporation is to be preserved
§ 112, part 2, Jus Nat.
§ 489, part 8, Jus Nat.
§ 494, part 8, Jus Nat.
§ 94.
The property of the corporation is to be preserved at the expense of the corporation. Since a corporation is a number of men associated for a definite purpose, and therefore consists of individuals, the corporation continues even
