( 850 )
September 10and 22.
ENDORISA v. AND ORIS A.
B., Oalle, 6,496.
Possession—Improvement by mal& fide possessor—Compensation.
One who has planted and improved a laud, while in maid fideoccupation of it, is not entitled to claim compensation from the owner.
HE plaintiff in this case sought to vindicate a portion of land,alleging a title acquired under a Crown grant of 1893. The
Commissioner found that the defendants had been in possessionfor a number of years; that they had not acquired a right byprescription; that they had occupied, planted, and improved thepremises, but that they had done so mala fide, and. with a viewrultimately, to depriving the plaintiff, by stealth, of the land towhich he was entitled by virtue of the Crown grant.
The Commissioner gave judgment for the plaintiff, and refusedto give the defendants any compensation.
The defendants appealed.
The case was argued on the 10th and was set down to bementioned on 15th September, 1902.
A. L. Aserappa, for appellant.
No appearance for plaintiff, respondent.
Cur. adv. vvlt. *
* Suffell v. Batik of England, L. B. 9 Q. B. D., at p. 668.
( 861 )
September 22, 1902. Moncbeiff, J.—1902-
In my opinion the defendants have not acquired a right by ^6Pand22.^
It was urged that they were entitled; although occupying moldfide, to compensation. The case was adjourned in order thatcounsel might produce some authority for his proposition, butwhen the case was called on for further argument there was noappearance on behalf of the appellant.
As a matter of fact the subject of compensation to a maid fide•occupier is discussed by Justice Berwick in 3 8. G. C. 30. Thelearned Judge cited some passages from Voet’s Commentariesbk. VI., tit. 1, sections 31 and 36, which seem to indicate anopinion on the part of that jurist that a maid fide possessor wasentitled to compensation; and I gather from the judgment that-the Judge himself was inclined to that view. However, speakingof the subject, Van Leeuwen, in vol. I., p. 183, says: “ But he whopossesses property maid fide well-knowing it to belong to anothercan derive no profit therefrom, nemo enim ex suo scelere compen-dium habere debet, and must not merely restore the propertytogether with the fruits he has aotually enjoyed, but also all thatthe owner might have derived horn the properly (the expensesbeing previously deducted).”
I presume that the learned counsel, whatever view he took ofthe proposition, thought he could not produce any authoritytending to show that this Court had gone so far as to adopt whathe desired to urge in this case.
Under these circumstances I think the appeal should be dis-missed.
ENDORISA v. ANDORISA