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M.Dahl

punac

LORD CHIEF BARON GILBERT.

Published as the Act directs by T. Cadell Strand Sep 11793.

T.Holloway scalps it

CHAPTER THE TENTH.

OF INJURIES TO REAL PROPERTY, AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.

I

COME now to confider fuch injuries as affect that species of property which the laws of England have denominated real; as being of a more fubftantial and permanent nature, than thofe transitory rights of which perfonal chattels are the object.

REAL injuries then, or injuries affecting real rights, are principally fix; 1. Oufter; 2. Trefpafs; 3. Nufance; 4. Wafte; 5. Subtraction; 6. Disturbance.

OUSTER, or difpoffeffion, is a wrong or injury that carries with it the amotion of poffeffion: 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 remedy; in order to gain poffeffion, and damages for the injury fuftained. And fuch oufter, or difpoffeffion, may either be of the freehold, or of chattels real. Oufter of the freehold is effected by one of the following methods, 1. Abatement; 2. Intrusion; 3. Diffeifin; 4. Difcontinuance; 5. Deforcement. All of which in their order, and afterwards their refpective remedies, will be confidered in the present chapter.

1. AND, first, an abatement is where a perfon dies feised of an inheritance, and before the heir or devifee enters, a stranger

who

who has no right makes entry, and gets poffeffion of the freehold: this entry of him is called an abatement, and he himfelf is denominated an abator 2. It is to be observed that this expreffion, of abating, which is derived from the French, and fignifies to quash, beat down, or destroy, is used by our law in three fenfes. The firft, which feems to be the primitive fenfe, is that of abating or beating down a nufance, of which we spoke in the beginning of this book'; and in a like fenfe it is ufed in ftatute Weftm. 1. 3 Edw. I. c. 17. where mention is made of abating a caftle or fortrefs; in which cafe it clearly fignifies to pull it down, and level it with the ground. The fecond fignification of abatement is that of abating a writ or action, of which we fhall fay more hereafter: here it is taken figuratively, and fignifies the overthrow or defeating of fuch writ, by fome fatal exception to, it. The last fpecies of abatement is that we have now before us; which is alfo a figurative expreffion to denote that the rightful poffeffion or frechold of the heir or devifee is overthrown by the rude intervention of a stranger.

THIS abatement of a freehold is fomewhat fimilar to an immediate occupancy in a state of nature, which is effected by taking poffeffion of the land the fame inftant that the prior occupant by his death relinquishes it. But this, however agreeable to natural juftice, confidering man merely as an individual, is diametrically oppofite to the law of fociety, and particularly the law of England: which, for the prefervation of public peace, hath prohibited as far as poflible all acquifitions by mere occupancy: and hath directed that lands, on the death of the prefent poffeffor, fhould immediately vest either in fome perfon, exprefsly named and appointed by the deceafed, as his devifee; or, on default of fuch appointment, in fuch of his next relations as the law hath felected and pointed out as his natural reprefentative or heir. Every entry therefore of a mere ftranger by way of intervention between the ancestor and heir or perfon next entitled, which b page 5.

a Finch. L. 195.

keeps

keeps the heir or devifee out of poffeffion, is one of the highest injuries to the right of real property.

2. THE fecond fpecies of injury by oufter, or amotion of poffeffion from the freehold, is by intrufion: which is the entry of a stranger, after a particular eftate of freehold is determined, before him in remainder or reverfion. And it happens where a tenant for term of life dieth feised of certain lands and tenements, and a firanger entereth thereon, after fuch death of the tenant, and before any entry of him in remainder or reverfion. This entry and interpofition of the ftranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devifee; an intrufion is always to the prejudice of him in remainder or reverfion. For example; if A dies feifed of lands in feefimple, 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 fee-fimple, and, after the death of A, C enters, this is an intrufion. Alfo if A be tenant for life on leafe from B, or his ancestors, or be tenant by the curtesy, or in dower, the reverfion being vested in B; and after the death of A, C enters and keeps B out of poffeffion, this is likewife an intrufion. So that an intrufion is always immediately confequent upon the determination of a particular eftate; an abatement is always confequent upon the descent or devife of an eftate in fee-fimple. And in either cafe the injury is equally great to him whofe poffeffion is defeated by this unlawful occupancy.

3. THE third fpecies of injury by oufter, or privation of the freehold, is by diffeifin. Diffeifin is a wrongful putting out of him that is feifed of the freehold d. The two former fpecies of injury were by a wrongful entry where the poffeflion was vacant; but this is an attack upon him who is in actual poffeffion, and turning him out of it. Those were an oufter from a freehold in law; this is an oufter from a freehold in deed. Diffeifin may be effected either in corporeal inheritances,

< Co. Litt, 277. F. N. B. 203, 204.

d Co. Litt. 277.

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