« PreviousContinue »
OF INJURIES TO REAL PROPERTY,
AND FIRST OF DISPOSSESSION, OR
I COME now to consider such injuries as affect that spe. I cies of property which the laws of England have denominated real; as being of a more substantial and permanent nature, than those transitory rights of which personal chattels are the object.
Real injuries then, or injuries affecting real rights, are principally ax; 1. Ouster; 2. Trespass; 3. Nufance; 4. Wafte; 5. Subtraction ; 6. Disturbance.
OUSTER, or dispofsession, is a wrong or injury that carries with it the amotion of poflession : for thereby the wrongdoer gets into the actual occupation of the land or hereditament, and obliges him that hath a right to seek his legal Temedy; in order to gain possession, and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods, 1. Abatement; 2. Intrusion; 3. Diffeisin; 4. Discontinuance ; 5. Deforcement. All of which in their order, and afterwards their respective remedies, will be considered in the present chapter.
1. AND, first, an abatement is where a person dies seised of an inheritance, and before the heir or devisec enters, a stranger
who has no right makes entry, and gets poffeffion of the freehold: this entry of him is called an abatement, and he himself is denominated an abatora. It is to be observed that this expression, of abating, which is derived from the French, and fignifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nusance, of which we spoke in the beginning of this book '; and in a like sense it is used in statute Westm. 1. 3 Edw. I. c. 17. where mention is made of abating a castle or fortress; in which cafe it clearly figuifies to pull it down, and level it with the ground. The ficond fignification of abatement is that of abating a writ or action, of which we shall say more hereafter: here it is taken byuratively, and signifies the overthrow or defeating of such writ, by fome fatal exception to, it. The lait species of abatement is that we have now before us; which is also a figurative expression to denote that the rightsul poffeilion or frechold of the heir or devisee is overthrown by the rude intervention of a stranger.
This abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking poflction of the land the fame instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, confidering man merely as an individual, is diametrically oppofite to the law of society, and particularly the law of England: which, for the preservation of public peaco, hath prohibited as far as posible all acqui. fitions by mere occupancy: and hath directed that lands, on the death of the present poffefior, should immediately velt either in some person, expressly named and appointed by the deceased, as his devifee; or, on default of such appointment, in such of liis next relations as the law hath selected and pointed out as his natural representative or heir. Every entry therefore of a mere stranger hy way of intervention between the ancestor and heir or person next entitled, which
a Fincs. L. 195.
b pare se
keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property.
2. The second species of injury by ouster, or amotion of pofleflion from the freehold, is by intrusion : which is the entry of a stranger, after a particular estate of freehold is determined, before liim in remainder or reversion. And it happens where a tenant for term of life dieth feised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion. This entry and interposition of the stranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; it A dies seised of lands in feesimple, and, before the entry of B his heir, C enters thereon, this is an abatement; but if A be tenant for life, with remainder to B in fec-fimple, and, after the death of A, C enters, this is an intrusion. Also if A be tenant for life on lease from B, or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B; and after the death of A, C enters and keeps B out of poffeßion, this is likewise an intrusion. So that an intrusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whore poffeflion is defeated by this unlawful occupancy.
3. The third species of injury by ouster, or privation of the freehold, is by diffiifin. Disseisin is a wrongful putting out of him that is feised of the freehold d. The two former species of injury were by a wrongful entry where the pofleflion was vacant; but this is an attack upon him who is in actual pofleflion, and turning him out of it. Those were an oufter from a freehold in law; this is an ouster from a freehold in deed. Diffeilin may beeflected either in corporealinheritances, c Co. Litt. 277. F. N. B. 203, 204.
• Co. Litt. 277.