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contrary, is a tangible thing to which actual possession may be delivered. There is a substantial distinction between an action brought to recover an intangible right and one brought to recover actual manual possession of real property which has been lost to the owner by the exercise of an incorporeal right, or in any other way. In the one case possession of the thing sought cannot be delivered through a court of law; in the other it may. Here what the plaintiff seeks to recover is not the possession of some mere right or easement, but possession of a distinct part and parcel of her farm. Where, as here, the owner in fee has been deprived of the possession of real estate, the statute gives a right of action in ejectment to recover that possession, and it is immaterial whether the deprivation of such right has been caused by the exercise of an easement which wrongfully excluded plaintiff from her possession, or otherwise. If the only right plaintiff can now exercise over the strip of land in question is the right to use it as a highway in common with all others, then she has been deprived of her possession. Strong v. Brooklyn, 68 N. Y. 1. And the allegation of the complaint, which, on demurrer, must be taken as true, is that plaintiff has been deprived of the use and enjoyment of her property, and not of a mere casement over the same. Order affirmed.

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Frederic William Maitland, "The Mystery of Seisin." (Essays in AngloAmerican Legal History, 1909, III, 591.)

"Equity and the Forms of Action." (Lectures III, V, pp. 321, 351.)

Arthur George Sedgwick and Frederick Scott Wait, "The History of the Action of Ejectment in England and the United States." (Essays in Anglo-American Legal History, 1909, III, 611.)

NOTES:

"Prospective damage: Permanent nuisance." (C. L. R., IV, 605.) "Adverse possession: Constructive: Under color of title." (C. L. R., IV, 605.)

"Adverse possession: Claim of freehold necessary." (C. L. R., V, 605, 620.) "Trespass to realty inflicting no injury." (C. L. R., VI, 351, 361.) "Adverse Possession: Knowledge that claim is unfounded: Whether essential." (H. L. R., VI, 385; VII, 241, 377; IX, 289, 467-470; X, 314; XI, 480, 553; XIII, 152; XIV, 374.)

"Nuisance threatening long existence." (H. L. R., XI, 118.) "Disseisee's rights: Recovery for mesne profits." (H. L. R., XV, 486.) "What constitutes a trespass: Forcible eviction of trespasser by owner." (H. L. R., XXI, 295.)

"Constructive Possession under Color of Title." (H. L. R., XXIII, 56.) "Damages: For continuing nuisance." (M. L. R., III, 416.)

"Adverse Possession: Founded on mistake in boundary." (M. L. R., III, 402.)

"Adverse Possession: Color of title under void deed." (M. L. R., VI, 707.) CHAPTERS ON THE JURAL NATURE OF POSSESSION:

John Austin, “Jurisprudence, or the Philosophy of Positive Law," vol. II, pp. 817, 836, 965 (Lectures XLVI, XLIX).

Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. X, § 276, p. 260, § 331; p. 323; c. XII, § 380, p. 374.

Jeremy Bentham, "Theory of Legislation: Principles of the Civil Code," pt. II, c. I.

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Thomas E. Holland, "Elements of Jurisprudence," 9th ed., c. XI, par. 5, p. 178. Sheldon Amos, "Systematic View of the Science of Jurisprudence," c. X, par. F, p. 174.

John W. Salmond, "Jurisprudence," 2d ed., § 93.]

Oliver Wendell Holmes, Jr., "The Common Law," (Lecture VI, p. 206.) Albert S. Thayer, "Possession and Ownership." (L. Q. R., XXIII, 175.)]

SUB-TITLE (II): PERSONALTY

Topic: Kinds of Harmful Acts violating the Right

SUB-TOPIC A.. IMPAIRMENT (TRESPASS. CASE)

287. REGISTRUM BREVIUM (1595). De mureligo projecto in columbari (fol. 106a). Ostensurus quare vi & armis clausum ipsius A. apud N. fregit, & quendam mureligum in columbari suum ibidem proieicit, per quod idem A. volatum columbaris sui praedicti per magnum tempus amisit, & alia enormia ei intulit, ad graue damnum &c.

288.

ANON. The Attorney's Practice in the Common Pleas. (1746, 2d ed., vol. I, p. 466.) Declaration in trespass for shooting a greyhound: Leicestershire, to wit, H. R. late, etc. was attached to answer B. D. in a plea, wherefore with force and arms a certain greyhound bitch, and a certain other bitch of the said B. of the price of 10l. at M. aforesaid in the county aforesaid, with a gun he shot at and killed, whereby the said B. not only lost the said bitches, but also certain young whelps, to wit, five young whelps of the said greyhound bitch, and certain young whelps of the said other bitch, which died for want of the said bitches to suckle them, to wit, at M.. aforesaid; and a certain other greyhound bitch, and a certain other bitch of the said B. lately found at M. aforesaid, of the price of 107. he shot at, hit, struck, smote and wounded, by means whereof the last mentioned two bitches afterwards at M. aforesaid died, whereby the said B. not only lost the said two last mentioned bitches, but also certain other young whelps, to wit, five other young whelps of the said last mentioned greyhound bitch; and certain other young whelps, to wit, five young whelps of the other of the two last mentioned bitches, which afterwards died for want of the two last mentioned bitches to suckle them, to wit, at M. aforesaid; and did other wrongs to the said B. to the great damage of the said B. and against the peace of our sovereign lord the king, that now is, etc. And whereupon the said B. by J. B. his Attorney complains, that the said H. on the 15th day of January in the year of our Lord 1736, with Force and arms, etc. . . . and did other wrongs to the said B. to the great damage of the said B. and against the peace of our said sovereign lord the king that now is, whereby the said B. saith that he is injured and damnified, to the value of 101. And thereupon he brings suit, etc.

289. ANON. The Attorney's Practice in the Common Pleas. (1746, 2d ed., vol. I, p. 431.) Declaration in case for unskilfully managing a ship whereby she ran against a lighter and damaged plaintiff's goods therein. London, to wit, H. G. late, etc. mariner, was attached to answer to T. H. in a plea of trespass upon the case, and whereupon the said T. by G. N. his attorney complains, that whereas the said T. on the 28th day of December in the year of our Lord 1735, at London aforesaid, was possessed of divers goods and merchandizes, to wit, of 1000 baskets of Denia raisins, of value of 3601. then laden on board a certain lighter then being in the river Thames, and then moored at a certain key adjoining to the said river Thames at London aforesaid; And whereas the said H. upon the said 28th day of December in the said year of our Lord 1735, at London aforesaid, was possessed of and master of a certain ship or vessel called the Mary, then being in the said river Thames near the said key, yet the said

H. not being ignorant of the premisses, but devising and maliciously intending to hurt and injure the said T. in this behalf, upon the same day and year above mentioned at London aforesaid, so ill, unskilfully and negligently managed, governed and directed his said ship or vessel, the said ship or vessel of the said H. then and there pressed against the said lighter, and broke one of the sides of the said lighter, whereby the water then and there flowed into the said lighter so laden with the said raisins as aforesaid, and very much damaged and spoiled the said raisins so laden therein, whereby he says he is prejudiced, and hath damage to the value of 100l. And thereupon he brings his suit, etc.

290. PAUL v. SLASON

SUPREME COURT OF VERMONT. 1850

22 Vt. 231

[Printed ante, as No. 21}1

SUB-TOPIC B. DISSEISIN, i. e. CONVERSION

(TRESPASS DE BONIS ASPORTATIS. TROVER)

291. JAMES BARR AMES. "The Disseisin of Chattels." (1890. Harvard Law Review, III, 23. Select Essays in Anglo-American Legal History, No. 67, III, 541.) The readers of "The Seisin of Chattels," by Professor Maitland, in the "Law Quarterly Review" for July, 1885, were doubtless startled at the outset by the title of that admirable article. But all must have admitted at the end that the title was aptly chosen. The abundant illustrations of the learned author show conclusively that from the days of Glanvil almost to the time of Littleton, "seisin" and "possession" were synonymous terms, and were applied alike to chattels and land. In a word, seisin was not a purely feudal notion.

Is it possible, however, to justify the title of the present article? Is it also a mistake to regard disseisin as a peculiarity of feudalism? History seems

1 [NOTES:

The plaintiff's intestate died of delirium tremens, at a drinking bout, in his own house. His brother's wife, the defendant, came immediately after his death, took the deceased's valuables out of an unlocked drawer in his room, and put them for safety in another room in an unlocked cupboard. Later, some of them had disappeared from the cupboard. Would a verdict of nominal damages for trespass be sustainable? (1876, Kirk v. Gregory, L. R. 1 Exch. D. 55.)

The plaintiff's horse was hitched to a post in the highway. The defendant unhitched it, and led the horse to another post ten yards away and hitched it thereto. The horse there became entangled in his halter and was thrown to the ground and died by reason of his injuries. Is the defendant liable in trespass? (1867, Bruch v. Carter, 32 N. J. L. 554.)

The plaintiff's horse was tied to a post at the street curb. The defendant, during the plaintiff's absence, took the lines from the horse, thus leaving the plaintiff no means of driving the horse. It was done as a joke. Later the defendant refused to deliver up the lines on demand. Has the plaintiff an action of trespass? (1892, Wartman v. Swindell, 54 N. J. L. 589.)]

to answer these questions in the affirmative. The word "disseisin," it is true, was rarely used with reference to personalty. Only three illustrations of such use have been found,1 as against the multitude of allusions to seisin of chattels noted by Professor Maitland. In substance, however, the law of disseisin was common to both realty and personalty.

A disseisor of land, it is well known, gains by his tort an estate in fee simple. "If a squatter wrongfully incloses a bit of waste land and builds a hut on it, and lives there, he acquires an estate in fee simple in the land which he has inclosed. He is seised, and the owner of the waste is disseised. . . . He is not a mere tenant at will, nor for years, nor for life, nor in tail; but he has an estate in fee simple. He has seisin of the freehold to him and his heirs."2 Compare with this the following, from Fitzherbert: "Note if one takes my goods, he is seised now of them as of his own goods, adjudged by the whole court; ... These examples are sufficient to bring out the analogy between the tortious taking of chattels and the wrongful ouster from land. But in order to appreciate fully the parallel between disseisin of chattels and disseisin of land, we must consider in some detail the position of the disseisor and disseisee in each case.4

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The disseised owner of land loses, of course, with the res the power of present enjoyment. But this is not all. He retains, it is true, the right in rem; or, to use the common phrase, he has still a right of entry and a right of action. But by an inveterate rule of our law, a right of entry and a chose in action were strictly personal rights. Neither was assignable. It follows, then, that the disseisee cannot transfer the land. In other words, as long as the disseisin continues, the disseised owner is deprived of the two characteristic features of property, - he has neither the present enjoyment nor the power of alienation.

The position of the disseisor of land is, in most respects, the direct opposite of that of the disseisee. The strength of each is the weakness of the other. The right of the disseisee to recover implies the liability of the disseisor, or his transferee, to lose the land. But so long as the disseisin continues, the disseisor, or his transferee, possesses all the rights incident to the ownership of an estate in fee simple. He has the jus habendi and the jus disponendi. If he is dispossessed by a stranger, he can recover possession by entry or action."

The legal effects of the disseisin of chattels are most vividly seen by looking at the remedies for a wrongful taking. The right of recaption was allowed only flagrante delicto. This meant in Britton's time the day of the taking. If the owner retook his goods afterwards, he forfeited them for his "usurpation."

1 1 Rot. Cur. Reg. 451; 1 Stat. of Realm, 230, or Bract. f. 136 b; Y. B. 14 Edw. II. 409. [See another in Isaack v. Clark, No. 306, post.]

2 Williams, Seisin, 7. See also Leach v. Jay, 9 Ch. Div. 42, 44, 45. [Two joint disseisors become joint tenants. Putney v. Dresser, 2 Met. 583; Litt. 278.]

3 Fitz. Ab. Tresp. 153.

For the best discussion of the doctrine of disseisin of land, see Maitland, "Mystery of Seisin," 2 L. Q. Rev. 481, to which the present writer is indebted for many valuable suggestions.

5 Bract. 165 a; Bateman v. Allen, Cro. Eliz. 437, 438; Asher v. Whitlock, Ļ.

R. 1 Q. B. 1.

6

1 Nich. Britt. 57, 116. The right of self-help in general was formerly greatly

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