318 AVES ISLAND. 



law and tlie violation of any jurisdiction — a legitimate pursuit, the 

 continuance of whicli it is supposed was disturbed and broken up by 

 the forces of Venezuela ! It is necessary, therefore, to ascertain the 

 reasons which they had to imagine that Aves Island had been aban- 

 doned by its owners, and that, being res nullius, it was open to first 

 occupation. This inq[uiry ought to have suggested itself to them be- 

 fore their visit and settlement on the island, because by such only 

 could they have gathered the conviction that they were about to enter 

 upon a lawful pursuit. This, notwithstanding it does not appear from 

 the documents produced by the legation that they proceeded with that 

 usual prudence which would have controlled any in the like circum- 

 stances. What does appear from their concerted declarations is that 

 various American vessels went sailing over the waters of the Grulf of 

 Mexico, and to other parts, in search of guano islands ; that one of 

 them found Aves Island ; and that subsequently, without further con- 

 cern, they proceeded to work it for their own benefit. Their occupa- . 

 tion of it was not a peaceful one ; they went to tempt fortune, with the 

 hope, no doubt, that their occupation being clandestine, would not be 

 discovered, led on, as they were, by the desire of easy and inexpensive 

 gain. But unfortunately for them the event was contrary to their 

 anticipations. The government was informed of their acts there, and 

 in other parts, and it took measures to put a stop to the injury. 

 Neither the possession nor the property of a certain thing can be found, 

 in its entireness, in several individuals ; so that, in case that Aves 

 Island belonged to any one, the Americans, who laid hands upon it, 

 could not have acquired a right to it; and then, even if they were ope- 

 rating in good faith, which is denied, no injury was inflicted upon 

 them in the act of excluding them from the enjoyment of such prop- 

 erty. Nonfacit injuriam qui jure suo utitur. It was the right of the 

 owner not to allow others to make use of productions inherent to his 

 property. ''It is certain that, according to admitted principles, pos- 

 session is exclusive. In the same manner that I cannot occupy the 

 spot on which you are, and that you may not sit down on the chair 

 which I fill ; even so two persons cannot entirely possess any object 

 at the same time. One possession necessarily excludes another pos- 

 session bearing the same nature and resting on the same pretensions. 

 If you take possession of my stead, I cease to possess it ; if I continue 

 possessing it, you cannot possess. But what is impossible is, that two 

 coequal possessions, both of the same nature, should concur in one and 

 the same act ; the one necessarily rejects the other." (Troplong, De 

 la Prescription.) 



" As it is impossible that when two individuals contend for the 

 property of one and the same thing, each one of them can have an 

 exclusive right to that property ; so neither can it happen that if two 

 individuals who contend for the possession of one and the same thing, 

 each one of them, singly, should have a right to that possession. 

 Hence there being but one only that can be the true owner, there is 

 only one real possessor ; whence it follows that if he who possesses it 

 is discriminate from the owner, his possession cannot be anything but 

 an usurpation." (Merlin, Kepertoire de Droit.) 



Although Mr. Eames does not admit that the burden of proof lies 



