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Page:Harvard Law Review Volume 1.djvu/121

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effect of destroying the owner’s right, as the physical destruction of the thing would, it would not differ from other torts in respect to its remedy; for the tort-feasor would then become the owner of the thing, and its former owner would recover its value in money as a compensation for the tort. And by our law, in case of movable things, the tort often has the effect practically of destroying the owner’s right, sometimes at his own election, sometimes at the election of the tort-feasor. But, subject to that exception, the tort leaves the right of the owner untouched, the thing still belonging to him. He can, indeed, bring an action for the tort, and recover a compensation in money for the injury that he has suffered down to the time of bringing the action;[1] but the compensation will not include the value of the thing, as the thing has not, in legal contemplation, been lost. If, therefore, an action for the tort were the owner’s only remedy, he must be permitted to bring successive actions ad infinitum, or as long as the thing continued to exist; for in that way alone could he obtain full compensation for the injury which he would eventually suffer. But, as the law abhors a multiplicity of actions, it always enables the owner to obtain complete justice by a single action, or at most by two actions. Thus, it either enables him to recover the value of the thing in an action for the tort, by making the tort-feasor a purchaser of the thing at such a price as a jury shall assess, or it enables him to recover the possession of the thing itself in an action in rem. He is, however, further entitled to recover the value of the use and enjoyment of the thing during the time that the defendant has deprived him of its possession, together with compensation for any injury which the thing itself may have suffered while in the defendant’s possession; and this he recovers, sometimes in the same action in which he recovers the thing itself or its value, and sometimes in a separate action.

  1. The reader should be reminded, however, that by our law an owner of immovable property who has been dispossessed (i.e., disseised) of it, can recover damages in an action of tort only for the original dispossession; he cannot recover damages for the subsequent detention of the property until he has recovered its possession. The reason is, that a loss of the possession or seisin of immovable property is technically a loss of the ownership, and the acquisition if possession or seisin is an acquisition of ownership, though it may be wrongful. Hence, a disseisor ceases to be a trespasaer the moment his disseisin is completed. When, however, the original owner recovers back his lost seisin, his recovered seisin relates back to the time of the disseisin, the law treating him as having been in possession all the time. Hence, he can then recover damages for the wrongful detention of the property.