IN an action on the case the plaintiff declared, that he was possessed of a messuage, and in a cellar, part thereof, was wont to lay coals, beer, &c. That the cellar joined to the defendant's messuage; and by a wall which the defendant debuit reparare was separated and defended from the defendant's privy, and that for want of repairing this wall, "faditates & sordida suricae praedicta in cellarium ipsius que rentis stuebant," &c. There was judgment by default, and damages upon the writ of inquiry: And, upon a motion in arrest of judgment. . Upon this it was afterwards argued. . . . That the flowing of this filth was actual trespass, like the case 6 E. 4. 7., Fitz. Tres. 110.: And that every man ought to use and keep his own, so as not to damnify his neighbour. Towards the end of the term, the Chief Justice, HOLT, called for the postea, and gave judgment for the plaintiff. . . . The reason he gave for his judgment in the principal case was, because it was the defendant's wall and the defendant's filth, and he was bound of common right to keep his wall so as his filth might not damnify his neighbour; and that it was a trespass on his neighbour, as if his beasts should escape, or one should make a great heap on the border of his ground, and it should tumble and roll down upon his neighbour's. . . . For he whose dirt it is must keep it that it may not trespass. 269. GRISWOLD & DAY v. BREGA & ROSTER APPELLATE COURT OF ILLINOIS. 1895 57 Ill. App. 554 [Printed post, Book II, as No. 536.] SUB-TOPIC B. DISSEISIN (EJECTMENT); AND CERTAIN LEGAL RULES DEPENDENT ON DISSEISIN 271. REGISTRUM BREVIUM (1595). Assisa novae disseisinae. (fol. 229.) Rex, vicecomiti salutem. Praecipe A. quod iuste & sine dilatione reddat B. tantum terrae cum pertinentiis in K, de quo idem A. iniuste & sine iudicio disseisiuit praedictum B. post primam transfretationem domini H. regis filii regis Iohannis in Vasconiam, vt dicit. Et nisi fecerit, &c. T. &c. 272. REGISTRUM BREVIUM (1595). Breve de ejectione firmae. (fol. 227b.) Rex, vicecomiti Cumberi salutem. Si A. fecerit &c. tunc pone &c. B. quod sit coram iustitiariis &c. quare vi & armis manerium de I., quod C. praefato A. dimisit ad terminum qui nondum praeterijt, intrauit, & bona & catalla eiusdem A. ad valentiam tanti in eodem manerio inuenta cepit & asportauit, & ipsum A. a firma sua praedicta eiecit, & alia enormia ei intulit ad graue damnum &c. Et habeas &c. 273. W. S. An exact Collection of Choice Declarations etc. translated into English for the benefit and helpe of young Clerkes. (1653. Part 3, p. 5.) Declaration upon the Statute of the 8th year of Henry VIII of forcible entryes: William Attersale, complaineth of John Fuller and M. his wife, and W. Parker, in the custody of the Marshall, etc. Of a Plea wherefore whereas in a Statute in Parliament, of the Lord Henry late King of England the sixth, after the Conquest at Westminster, in the eight yeare of his Reigne, held, established amongst other things, it should be continued, that if any person of any Lands or Tenements, with main strength be expulsed and disseised, or peaceably is put out, and afterward is held out with Force, or any Feoffment or discontinuance thereof, after such entry, for the Right of the Possessor, to defraud and take away in any manner is made; the party in this behalfe grieved, may have against such disseisor, an Assise of new disseisin, or a writ of Trespass; and if the party grieved by Assise, or by Action of Trespass, shall recover, and by Verdict or in other manner, by due form of Law it shall be found, that the party Defendant in the Lands and Tenements, was by force of entry, or after his entry, should hold by force, the Plaintiff shall recover his treble Damages against the Defendant: And further shall make Fine and Redemption, as in the same Statute more fully is contained. Notwithstanding they the said J. M. and W. P. the said Statute little weighing, and the Penalty in the same little fearing, the first day of October, in the sixth yeare of the now King Edward the sixth, into two parts of one Message and twelve Acres of Land, with the Appurtenances of him the said W. A. in J. in the County aforesaid, with main force, that is to say, with Swords, Staves, Clubs, Bowes, and Arrowes they entred, and the said W. A. with main force expulsed and disseised, and him so expulsed and disseised, of the same two parts of the said Tenements with the Appurtenances, with the said main force withheld, and as yet doth withhold from the same, to the contempt of the said now King, and to the Damage of him the said W. A. 201. and against the form of the said Statute, and against the Peace of the Lord the now King: And thereupon he bringeth his Suit, etc. 274. ANON. The Attorney's Practice in the Common Pleas. (1746. 2d ed., vol. I, p. 293.) Declaration in ejectment. Middlesex, to wit, John Doe, late of the parish of St. George the Martyr in the country of Middlesex, yeoman, was attached to answer Richard Roe of a plea, wherefore with force and arms he entered into five messuages with the appurtenances in the parish of StebonHeath, otherwise Stepney, in the county of Middlesex, which Thomas Bland and Conrade de Golls demised to the said Richard for a term which is not yet expired, and ejected him from his said farm, and other wrongs to him did, to the great damage of the said Richard, and against the peace of our sovereign lord the king; And whereupon the said Richard by Joseph Dobbyns his attorney complains, That whereas the said Thomas and Conrade on the 25th day of April in the 6th year of the reign of his said majesty at the said parish of StebonHeath, otherwise Stepney, in the county aforesaid, had demised to the said Richard the said tenements with the appurtenances; To have and to hold the said tenements with the appurtenances to the said Richard and his assigns, from the 24th day of April aforesaid, unto the full end and term of five years thence next ensuing and fully to be complete and ended; by virtue of which demise the said Richard entered into the said tenements with the appurtenances, and was possessed thereof; And the said Richard being so possessed thereof, the said John afterwards, to wit, on the said 25th day of April in the said sixth year, with force and arms, etc. entered into the said tenements with the appurte nances which the said Thomas and Conrade had demised to the said Richard in farm aforesaid, for a term which is not expired, and ejected the said Richard from his said farm, and other wrongs, etc. to the great damage, etc. and against the peace, etc. whereupon the said Richard saith that he is injured, and hath damage to the value of 201. And thereupon he brings suit, etc. 275. SIR EDWARD COKE. Institutes of the Laws of England, or A Commentary upon Littleton. (1628. fol. 17a, 153a.) "Seised"; Seisitus, commeth of the French word "seisin," i. e. possessor, saving that in the common law "seised " or "seisin" is properly applyed to freehold, and "possessed" or "possession" properly to goods and chattels; although sometime the one is used instead of the other... "Disseisin." Disseisina is a putting out of a man out of seisin, and ever implyeth a wrong. But dispossessing or ejectment is a putting out of possession, and may be by right or by wrong. "Omnis disseisina est transgressio, sed non omnis trangressio est disseisina. Si eo animo forte ingrediatur fundum alienum, non quod sibi usurpet tenementum vel jura, non facit disseisinam sed transgressionem, &c. Quaerendum est a judice quo animo hoc fecerit. &c." And of ancient time a disseisin was defined thus: "Disscisin est un personel trespasse de tortious ouster del seisin." "An assise of novel disseisin." "Assisa novae disseisinae. "Assisa" properly cometh of the Latin word "assideo," which is to associate or set together; so as properly "assise" is an association or sitting together. And the writ, whereby certain persons are authorized and called together, it is called "assisa novae disseisinae." . . . A disseisin after the last eire was called a new disseisin, or "nova disseisina." "Assisa" also signifyeth a jury, of them sitting together, and also a session of parliament, as Littleton hereafter in this Chapter sheweth. Treatise on Trial 276. ARTHUR G. SEDGWICK and FREDERICK S WAIT. of Title to Land. (1886. 2d ed., 725-732, in part, p. 562.) Without attempting to discuss in detail the various statutes of limitation applicable to real actions adopted by the different States, we may say generally that, being of the same origin, historically, and adopted upon common considerations of public policy, and having the same main object in view, namely, the quieting and settlement of titles to land by barring any assertion of title by the true owner, provided he has been out of possession of the land for a fixed time, the statutes differ from one another only in respect to the extent in time of the limitation imposed, and in respect to minor provisions, such as those suspending the operation of the statute in favor of persons under disabilities. All these statutes are, in substance and effect, as follows: No person shall commence an action for the recovery of lands except within a certain number of years from the time when the right to bring such action accrued, or unless within the same number of years he, or one with whom he is in privity, has been in possession of the premises. As a rule, there are no provisions in the statutes of the different States declaring in terms that adverse possession shall confer a title upon the adverse possessor, nor any provisions as to what will constitute a disseizin of the true owner and an adverse possession in another; but questions of seizin and disseizin, entry and ouster and as to what acts will establish an adverse possession by a stranger, and, hence, whether the statute can be pleaded as a bar to an action by the owner, are left to be determined by the Courts, in each case, by the principles of the common law. . . . ... The essence of the doctrine of limitations is, technically, therefore, the nonpossession of the true owner, not, as under the theory of prescription, the adverse enjoyment of some one else. . . . Adverse possession makes a title in that it deprives the real owner of the power of asserting the true titles against the adverse occupant. . . Statutes of limitations applicable to actions for the recovery of land, like all statutes of limitations, are founded upon considerations of public policy; "to promote the peace and good order of society, by quieting possessions and estates, and avoiding litigation." Such statutes are for this reason characterized as statutes of "repose." The rightful owner of land is deemed to have the possession until he is ousted from it or disseized, and also, in the absence of limitations, that he is restored to possession when the hostile possession or disseizin ceases. Want of possession, therefore, in the true owner, necessarily implies an ouster of him by another through an entry and hostile possession. Hence, the ultimate test of the want of possession of the true owner, and his neglect to assert his right to the possession, upon which the statutes of limitation rest, is the existence of an adverse possession of another denying the true owner's right. What constitutes, then such an adverse possession of land as, under the statutes of limitation, will bar the right of the true owner to recover it? . It may be laid down as an indisputable general rule of law, that to constitute an effectual adverse possession two things must concur: first, an ouster of the real owner followed by an actual possession by the adverse claimant; and, second, an intention on the part of the latter to so oust the owner and possess for himself; or, as it is sometimes called, there must be a "claim of right" or "title" in himself adverse to the true owner. The assertion has been made that the possession, to be adverse, must be under "claim or color of title," and even that the possession must have commenced under "color and claim of title." The latter statement is certainly inaccurate; for the books are replete with cases where a tortious entry upon and possession of lands, without any pretense of paper title or rightful claim, have ripened into a title by adverse possession. . . It is axiomatic that the possession which follows the title to land must cease before a hostile possession can commence. There cannot be two possessions, actual or constructive, of the same land at the same time. There must, therefore, be an ouster of the true owner and an entry by another before an adverse possession is established. . . . Bearing in mind at the outset that the object of the statute is to cut off and defeat the claim or rights of the true owner, we arrive at the general principle that the criterion of the time when the statute begins to run is the ouster of the true owner and his consequent right to be reinstated in the possession, and that it is not in theory the entry of the adverse claimant. To determine then the character and sufficiency of an entry, as the foundation of an adverse possession, we inquire whether it is sufficient to constitute an ouster of the one entitled to the possession. . . . Entry and ouster, as well as possession, may be either actual or constructive. Thus the entry and ouster may be a physical invasion of the land, and an actual forcible ejectment of the possessor, or the adverse claimant being already in possession under, for example, a lease or agreement with the owner, and the owner out of the actual possession, the entry and ouster may be constructively accomplished by a hostile act on the part of the tenant equivalent in its legal effect to an actual invasion and ejectment. . . . It is impossible to lay down a general rule as to what constitutes an effectual actual adverse possession of lands and what falls short of it. It is necessarily a question governed more or less by the facts of each case, and particularly by the character and situation of the land in question, and the uses to which it would naturally be put. 277. EDITOR'S NOTE. Harvard Law Review. (1907, XX, 563.) The English Privy Council recently decided that one who had had adverse possession of land for ten years acquired such an interest that, when the Crown resumed the land as if by eminent domain, his executors, as soon as the period of limitation had run after his entry, might require the land to be valued with a view to compensation. Perry v. Clissold, (1907) A. C. 73. - Two series of articles,' relied on by the Court in defining this right, point out that originally at common law [a mere] possession was protected against [a non-possessing] ownership. Then very early a disseisee was given a right to enter or gain back possession from his disseisor. This right was a mere chose in action, at first absolutely non-transferable and good only against the disseisor himself. It was founded simply on former possession and ouster. But the possession of the disseisor — the tangible thing was the property, -transferable, inheritable, devisable, giving dower and curtesy, subject to execution and escheat. Possession with no outstanding rights to take it away made a complete ownership. It is so extensive that to-day a possessor who is free from such a right outstanding against him is commonly thought to have in himself, in addition to his possession, a valuable abstract right called title. The right to get back possession is now generally transferable and follows the land against most possessors. This change in point of view, this turning the absence of outstanding rights into the presence of an affirmative title, should not, logically, change the nature of the right of possession when the possessor is dealing with strangers to outstanding rights. As against all who have no outstanding rights, the possessor should have the ownership. This proprietary character of possession appears to-day in cases allowing an adverse possessor to maintain ejectment - a proprietary action — against any one not claiming under the outstanding title. It is further supported by a few cases like the 1 Prof. Maitland in 1 L. Quar. Rev. 324; 2 ibid. 481; 4 ibid. 24, 286; Prof. Ames in 3 Harv. L. Rev. 23, 313, 337. 2 Asher v. Whitlock, L. R. 1 Q. B. 1. Contra, Doe d. Carter v. Barnard, 13 Q. B. 945. |