or fraudulently; nor whether he be known to us or a stranger; because we do not reclaim the thing on account of any deed of his; but because we have a right to it. Besides, since to reclaim and recover a thing is not the same as to redeem it; it is manifest, that when an owner recovers his own, he is not bound to restore the price; tho’ equity doth not permit that one should be inriched at another’s expence (§257), or that he should refuse the necessary and useful expences laid out upon a thing by the possessor.* <234>
SECTION CCCXII
How far he may recover the accessions and fruits.
Since the owner can claim to himself all the accessions and fruits of his own goods (§307), it may be enquired, whether an honest possessor be obliged to restore to the owner reclaiming his own, all the accessions, and all the fruits, nay, all the gain he hath received from another’s goods? We conceive thus of the matter in a few words. He who honestly, and with a just title, possesses a thing, as long as the true owner is not known, has the right of excluding all persons from the use of what he possesses. But he who has this right is in the room of the owner (§231), and therefore enjoys all the same rights as the owner; yet, because he is not the true master who possesses a thing honestly, there is no reason why he should desire to be inriched to the loss of the true owner; as there is none, on the other hand, why the master should claim to himself the fruits not existing, which were not owing to his care and industry.† <235>
SECTION CCCXIII
The accessions and the fruits belong to the master.
Because neither ought to be inriched at the other’s loss (§312), the consequence is, that even the accessions ought to be restored to the master reclaiming his own thing, and therefore he hath a right to demand the existing and hanging fruits,* the expences laid out upon them being deducted; because the master would be inriched to the detriment of the honest possessor, if he should take to himself the fruits upon which he had bestowed no care.
SECTION CCCXIV
The fruits gathered and consumed to the possessor.
But since a natural accession to a thing, the owner of which is not known, goes to the first occupant as a thing belonging to no body, the same is to be said of the civil fruits (§212); consequently, the fruits gathered ought to be left to an honest possessor, who bestowed his labour and care about them, unless he be made richer by them (§212).† <236>
SECTION CCCXV
Whether an honest possessor be obliged to pay the value of a thing consumed, perished, or alienated.
From the same rules, that an honest possessor is in the room of the owner, but yet cannot inrich himself at the detriment of another (§312); we infer, that he is no more obliged to make restitution to the owner, if he infraudulently consumed the thing, than if it had perished in his possession by chance; but that he is obliged, if he sell the thing he acquired without paying any price, or a small price, for a greater price, because he would be richer at another’s cost, if he kept the profit to himself. On the other hand, this obligation ceases, if the owner hath already received the value of his thing from another; partly because in this case an honest possessor is indeed made richer, but not at the cost of the owner; and partly because the owner has a right not to sue for gain, but only for loss.
SECTION CCCXVI
What a fraudulent possessor is obliged to restore.
Because all this belongs to honest possessors only; and, on the other hand, because fraudulent possessors are neither in the room of the owner, nor have they the right of use, on this score, that the owner is not known to them; and therefore none of these reasons, why one may enjoy any advantage by a thing, or its fruits, takes place; hence it is plain, that they are strictly bound not only to restore what is existing, but to refund the value of things consumed or alienated; and much more, <237> of all the fruits they have, or might have reaped from them, and likewise to run all risks.*
SECTION CCCXVII
The effects of dominion are sometimes restricted by civil laws.
Now these are the rights which arise plainly from dominion; but since it belongs to civil law to adjust indifferent actions to the interest of each people or state (§18); and it is frequently the interest of a state, that no member should make a bad use of his goods (Instit. §2. de his qui sui vel alieni juris sunt,) it is no wonder that dominion is sometimes confined within narrower limits by governors of states, and that sometimes the liberty of disposal, sometimes the right of taking possession, and sometimes the right of recovering, is either wholly taken away from owners, or not allowed to them but under certain restrictions.* <238>
SECTION CCCXVIII
Sometimes by the pacts and dispositions of the first owners.
And because an owner has the liberty of disposing of his goods in his life, or in the prospect of death (§268), and then just as much is transferred to another, as he who alienates willed to transfer, (§279), it is plain the effects of dominion may be restricted by the pact and disposition of the former owner,† and in this case the possessor can arrogate no more to himself than he received from the former owner, unless he in whose favour the restriction was made, voluntarily quit his right, cease to exist, or lose his right by a just cause. <239>
SECTION CCCXIX
A proprietor ought not to be hurt by any one in the use of his own.
Hitherto we have only treated of rights arising from dominion or property. Now since right and obligation are correlates, and therefore a right being constituted an obligation is constituted (§7); the consequence is, that as many rights as dominion gives to an owner, just so many obligations does it lay others under with regard to the owner. Because therefore an owner hath the liberty of disposing (§306), they injure him who hinder him in disposing or enjoying the fruits of his own:* They also do him damage who corrupt or spoil the fruits and accessions of his property. And in general, since he who intercepts or corrupts any thing that tends to the perfection or happiness of another certainly wrongs him (§82), but none ought to be wronged (§178); hence we may justly conclude, that none ought to have his free disposition of his own disturbed or hindered; that none ought to have his goods damaged; and therefore, if any thing of that kind be done, the author of the injury is bound to make reparation, and is moreover liable to punishment.
SECTION CCCXX
Nor directly nor indirectly intercept or hinder his possession.
Seeing possession belongs to the rights of property (§306), the consequence is, that it is our duty to <240> suffer every one to possess his own quietly and unmolested, and not to deprive any one of his possession against his will directly or indirectly. And that if any one can be proved to have done any such thing, he is bound as an injurious person, to repair all the damage he has done, and is moreover liable to condign punishment.
SECTION CCCXXI
It is done directly by theft, rapine and violent ejection.
One carries off another’s possession directly, either by open force, or by taking it away clandestinely. The latter is called theft. The former, if the thing be moveable, is called rapine; and if it be immoveable it is called force, or violent ejection. Theft is therefore taking away another’s goods in a clandestine manner, without the knowledge and against
