taken a title which they knew was not valid, yet had some excuse for doing so (such as purchasing from a guardian, etc.). The former class should receive the utmost rigor of the law; the latter should be treated with indulgence, and should receive compensation for their ameliorations to the amount they have benefited the property. Pothier, Traité du Droit de Propriété, sec. 350. The Code Napoleon settled many uncertainties of the old law, and attempted to lay down a fixed rule; but, nevertheless, as we have seen, left the question of inseparable improvements somewhat at large.

Demolombe, one of the ablest commentators on this code, in vol. ix, sec. 689, has a very interesting article on this subject. He thinks that inseparable improvements are not provided for by article 555 of the code; but that the question of compensation therefor is to be governed by general principles of equity, to be drawn from other sources. He instances the case of a possessor in bad faith who has drained a marsh, cleared lands, dug ditches for irrigation, or who has caused paintings to be made or paper to be placed on the walls of a mansion, or who has performed any other like work of intrinsic amelioration. And he asks, Is article 555 applicable in such a case? After stating the argument on both sides of this question, he gives his own opinion in the negative. He says the article refers to works which the possessor may be compelled to remove; but such as those mentioned are not susceptible of removal; and the option given to the owner, either to keep them by payment, or to cause them to be removed, cannot be exercised. Besides, it would be a savage doctrine to hold that the possessor might in any case destroy such improvements, even though he should leave the property in its first estate. He therefore concludes that the specific case is unprovided for, and thinks that it is necessary to resort to analogies deduced from similar matters and to the general principles of the law; and that a solution of the case may be found in the quasi contract of agency. We find here, he says, two rules of equity, both equally certain: First. That no one ought to enrich himself at the expense of another, a rule which the law applies in the very case of the relations between the owner and possessor, even in bad faith. Second. That a third person cannot impose upon the owner of the soil, without his authority and against his will, expenses which he would not have made himself, and which exceed his means, and for the payment of which, if forced to it, he would have to sell an estate that he would prefer to keep.

In the combination and conciliation of these two rules, he thinks, we may find the solution of the difficulty. He then quotes to his purpose a law of the Digest (law 38, De Rei Vindicatione, book vi, tit. i), which he characterizes as full of good sense, equity, wisdom and practical knowledge of affairs. It is a passage from Celsus, as follows: "On another's land which you have unwittingly bought, you have builded, or made repairs; then you are evicted; a good judge will decide according to the merits of the parties, and according to the circumstances. Suppose the owner would have done the same thing, then let him reimburse the expense, as a condition of receiving his land; but only to the amount that it is benefited. If he is poor, and cannot pay without selling his home, you should be satisfied in being permitted to remove what you can of your improvements, leaving the estate in as good condition as if they had not been made. But it has been decided that, if the owner can pay what the possessor can get for them, if removed, he should have that privilege. And let nothing be done in malice, as by defacing plaster or pictures on the walls, which could do you no good, but only result in injury. If it is the owner's in

tention immediately to sell the property, you will not be condemned to give it up until he has paid what we have said he ought to pay."

Considering the possessor in bad faith as a quasi agent in charge, and applying these principles, we must look, says Demolombe: First, to the character of the possessor: as whether he has taken a title which he knew to be invalid, but which he hoped to have confirmed, or whether he was a mere interloper, without title, taking possession in the absence of the owner. Second, to the character of the owner: as whether he would himself have been able and willing to make the improvements in question; whether they would be useful to him, considering his profession, habits, etc., and whether it was his intention to keep the property or to offer it for sale. Third, to the nature of the improvements made: as whether they have added to the income and to the actual value and salableness of the property, etc., or only to its ornamentation, etc.; also, whether the improvements have or have not been excessive and unreasonable. The consideration of these three elements, giving due weight to each, will enable the judge to decide whether any indemnity should be given; what it should be; and how it should be paid, whether at once or on time, whether in a capital sum or in the way of rent. This is the substance of Demolombe's article. We can only say that, if it is a sound explication of the law of France, and, therefore, of the law of Louisiana (which in this matter is exactly the same as that of France), it is in direct accord with the result to which we have been brought in this case by the application of the principles which we suppose to be involved in article 508 of the Civil Code of Louisiana, interpreted according to its spirit and intent. If, by the course of decisions in Louisiana, it cannot be held to apply to the case of an ordinary immovable, it is at least applicable to such a case as that with which we are now dealing, considered in all its various circumstances.

§ 1651. A possessor will not be allowed for improvements which were consumed under his own administration of the property.

The other points raised in the case do not present much difficulty. We shall proceed to consider those which we deem material. First. The defendants complain that they were not allowed for the cost of those things which were consumed by them in the use, such as cross-ties, etc., which were worn out and had to be replaced. The court below only allowed them compensation for those things which were in existence when the railroad was turned over to the receiver, in April, 1875. This, it seems to us, is in strict accordance with the law. In ordinary cases of possessors in bad faith, the owner, according to article 508, has an election either to keep the constructions and works, or to require their removal. He certainly cannot keep nor require the removal of that which no longer exists. When he elects to keep them, as we suppose to be virtually the case here, he owes to the owner of the materials nothing but the reimbursement of their value and of the price of workmanship. This evidently refers only to the materials which compose the things which are in existence at the time of making the election,- and that time, in this case, must be deemed to be the time of the delivery of the property to the receiver, which was on the 13th of April, 1875. We think the court was right in deciding that it was the improvements then in existence, the value or cost of which was to be allowed to the defendants.

§ 1652. A possessor can only be allowed for the value of the improvements when they pass out of his possession, not their cost.

Secondly. The defendants complain that the full first cost of the improve

ments which were in existence was not credited to them in the decree; they contend that these improvements cost them at least forty per cent. more than their value at the time they were appraised by the experts, besides the sum of $49,005, which the experts deducted for deterioration. The experts appraised these improvements in the fall of 1875, and estimated their then cash value at the sum of $347,361.29. It was sufficiently shown that their original cost was considerably more than this. The master, from the evidence before him, estimated and reported that the cost of materials and workmanship was, on the whole, twenty-five per cent. more than their then value, the cost being much greater when the improvements were made than the same would be at the time of the appraisement, in consequence of the condition of the country after the war, the disturbance in labor, and the expansion of the currency. He therefore reported the cost at $434,201.61. But as the experts had deducted $49,005 for deterioration of iron rails whilst used by defendants, this sum added would make the whole first cost $483,206.61. The court, in its opinion, considers the allowance of twenty-five per cent. as excessive, because, whilst prices were higher when the improvements were made, so also the currency was depreciated; and the court was of opinion that fifteen per cent. additional was sufficient. This would make the first cost of the improvements equal to $399,465.48. But the decree allows the sum of $488,109.54, which is more than forty per cent. greater than the amount of the appraisement. No explanation of this discrepancy has been made. It seems to be the result of some inadvertent error in making the computations. But, in our judgment, there should be no allowance for increased cost. We have proceeded on the principle of carrying out the spirit and equity of the law, since it cannot be carried out in the letter. Now, the letter gives the owner the option of requiring the improvements to be removed. This option is a means in the hands of protecting himself if the original cost is greater than the improvements are worth. As he cannot actually exercise it in this case, it would violate the spirit of the law to allow the defendants a greater sum. We think, therefore, that the appraised value of $347,361.61 is all that can be allowed to the defendants.

$ 1653. The rule as to interest.

Thirdly. As to the question of interest. On this subject there does not seem to have been any distinct adjudication by the supreme court of Louisiana. In all the cases which we have examined, the rents, or fruits, have been deducted from the cost of the improvements, or vice versa, and judgment given for the balance, without any calculation of interest on either side, except where the possessor, in exoneration of the estate, has paid money which was a lien thereon. The question of interest does not seem to have been debated. But the French jurisconsults, who have given special attention to this subject, agree that when the owner of the land compels the unlawful possessor to account for the fruits of his improvements, the latter is entitled to interest on their value,— on the principle that it would be unjust to charge him for the fruits of his own improvements without allowing him interest on their cost, provided it does not exceed the amount of such fruits,- not, indeed, as interest, properly so called, but as an equivalent pro tanto to the fruits received, in the account to be rendered thereof. They all agree, however, in saying that interest cannot be allowed beyond the amount of such fruits, and that it cannot be brought into compensation with the fruits of the original property. Demolombe on the Code Napoleon, vol. ix, art. 679; Aubry & Rau, Droit Civ. Fr., vol. ii, sec 204 b, p. 232 and note; Dalloz, vol. xxxviii, p. 273, tit. Propriété, art. 429.

In the present case the fruits were, in fact, the results of the improvements made. The property, when taken possession of by the defendants, was a ruin. They reconstructed it, and made it capable of producing what it did produce. According to the French rule, therefore, the defendants were entitled to interest on their expenditures in making the improvements in question, provided it did not exceed the fruits and profits with which they were charged. It is conceded that interest should only be charged at the rate of five per cent. per annum. The master estimates four and a half years as the proper average time for allowing interest. In this we concur. The interest, therefore, on the whole first cost of the improvements, without deducting for deterioration, would be $108,721.48. This should be credited against the net earnings for which the defendants are held responsible, both being in the same currency. These net earnings were found to be $161,476.69; and deducting the said interest therefrom, the remainder is $52,755.21, which is to be deducted from the value of the improvements. Being so deducted, the balance is $294,606.08.

This sum, according to our view, was the amount due to the defendants at the time when they delivered the property to the receiver, and not the sum of $391,959.42, as stated in the decree of the circuit court, which should, therefore, be reversed, with directions to be corrected in respect to the amount, as now stated; which amount, with interest at the rate of five per cent. per annum from the time of delivering the property to the receiver, should be first paid to the defendants out of the proceeds of the sale of the property, before any payment made to the bondholders. But as it may be difficult for the bondholders, or other persons purchasing the property, to raise at once the whole amount due to the defendants, the court below should direct the property to be sold subject to the lien of the defendants for said amount with interest as aforesaid, and should allow a reasonable time to the purchaser, not exceeding nine months from the day of sale, to pay the same; with a condition annexed to said sale, that if the amount due the defendants be not paid within the time so limited, a resale of the property shall be made for the purpose of satisfying said amount due the defendants, with interest as aforesaid and expenses. The court should also direct that, subject to said lien, no bid be received for a less sum than will be sufficient as a fund to defray the costs, expenses and charges arising in the cause since the former decree of this court; which costs, expenses and charges, except the costs of the defendants for attorneys', counsel and witness fees, should be paid from said fund. The amount of said fund should be fixed by the court, and should be paid to the special master making said sale before adjudicating the property as sold to any bidder.

In view of the dispositions thus to be made in the decree, the defendants will not be concerned or interested in the accounts and transactions of the receiver; but any net earnings of the railroad, or proceeds of property, which shall have come into his hands as such receiver, after paying his expenses and compensation, will go to the benefit of the bondholders; and any deficiency of moneys in his hands to pay said expenses and compensation should be paid out of the said fund required to be paid in cash as aforesaid. As to the costs in the court below, incurred since the former decree of this court, the defendants should be decreed to pay their own attorneys', counsel and witness fees; and the residue. of the costs, expenses and charges in the cause should be paid out of the proceeds of said sale from the fund before specified in that behalf.

We do not deem it necessary to discuss the remaining points which have been raised on either side. We have given them due attention, and do not regard

them as presenting any valid objection to the residue of the decree. The decree of the circuit court will be reversed, and the record remitted with direc tions to enter a decree in conformity with this opinion, each party to pay their own costs of this appeal; and it is so ordered.

§ 1654. A possessor mala fide should not be allowed for improvements. Dissenting opinion by MR. JUSTICE FIELD.

I agree with the court that the decree should be reversed, but I do not agree with it in allowing the defendants compensation for expenditures and improvements upon the road whilst they were in control of it. This court has held, after elaborate consideration, that they were possessors in bad faith, having obtained control of the road fraudulently. I know of no law and no principle of jus tice which would allow them anything for expenditures upon property they wrongfully obtained and wrongfully withheld from the owners, who were constantly calling for its restitution. Why should the owners pay for expenditures they never ordered, or for the construction of works they never authorized? The defendants knew all the time the vice of their title; they knew they were not possessors in good faith; they concocted the scheme by which the fraudu lent sale was made; and this court has so adjudged. In the courts that administer the common law the rights of the owner are paramount and exclusive. An occupant without title is not recognized as entitled to compensation for improvements. Heron, in his History of Jurisprudence, says: There is no case "decided in England, Ireland or the United States, grounded upon common law principles, declaring that an occupant of land, without a special contract, is entitled to payment for his improvements as against the true owners, when the latter had not been guilty of a fraud in concealing the title." p. 715. And courts of chancery do not give to an occupant compensation for improvements, unless there are circumstances attending his possession which affect the conscience of the owner, and impose an obligation upon him to pay for them or to allow for their value against a demand for the use of the property. Putnam v. Ritchie, 6 Paige (N. Y.), 390; Story, Eq. Jur., sec. 799; Mill v. Hill, 3 H. L. Cas., 828; Gibson v. D'Este, 2 Y. & C., 542; Mulhallen v. Marum, 3 Dru. & W., 317. To a possessor whose title originates in fraud, or is attended with circumstances of circumvention and deception, no compensation for improvements is ever allowed. Railroad Co. v. Soutter, 13 Wall., 517; Morrison v. Robinson, 31 Pa., 456; Van Horne v. Fonda, 5 Johns. Ch. (N. Y.), 388, 416; Russell v. Blake, 2 Pick. (Mass.), 505; McKim v. Moody, 1 Rand. (Va.), 58; Morris v. Terrell, 2 id., 6. The learned counsel for the appellants who argued this case showed, I think, conclusively, by reference to numerous adjudications and approved text-writers, that the civil law as enforced in Europe and in Louisiana draws the same line of demarcation between the possessor in good faith and the possessor in bad faith in allowing for improvements and expenditures on the property of another. Pothier, the great legal writer, referring to the rule that no man ought to enrich himself at the expense of another, upon which compensation for improvements is here claimed, says: "A bona fide possessor may properly oppose it against an owner, but it is not available to a mala fide possessor. The owner can reply to the latter that equity did not. empower him to take possession of his land and to make thereon such changes as he desired and so put the owner to charges that were burdensome, and that he might not wish to bear, and which this possessor had no right to impose. If the latter suffers from the failure to reimburse him, he must blame himself,