CHAPTER THE TENTH.

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

I come now to consider such injuries as affect that species 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. (See note 39, p. 275.)

Real injuries then, or injuries affecting real rights, are principally six; 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Subtraction; 6. Disturbance.

*Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession:* for thereby the wrong-doer 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 posses-" sion, 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. Disseisin; 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 devisee enters, a stranger [168] who has no right makes entry, and gets possession of the freehold:† this entry of him is called an abatement, and he himself is denominated an abator. It is to be observed that this expression, of abating, which is derived from the French and signifies to quash, beat down, or destroy, is used by our law in

a Finch. L. 195.

**Quoted, 9 Conn. 429.

† Cited, 1 Bay, 110; 5 Denio, 426.

‡‡ Quoted, 25 Ohio St. 268.

three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book: and in a like sense it is used in statute Westin. 1.3 Edw. I. c. 17. where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down, and level it with the ground. The second signification of abatement is that of abating a writ or notice, of which we shall say more hereafter: here it is taken figuratively, and signifies the overthrow or defeating of such writ, by some fatal exception to it.* The last species of abatement is that we have now before us; which is also a figurative expression to denote that the rightful possession or freehold 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 possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England: which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy: and hath directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by the deceased, as his devisec; or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry thercfore of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which [169] keeps the heir or devisee out of possession, is one of the highest injuries to the rights of real property. *Cited, 6 Conn. 140.

b page 5.

2. The second species of injury by ouster, or amotion of possession from the freehold, is by intrusion: which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised 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; if A dies seised of lands in fee-simple, 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-simple, 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 possession, 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 whose possession is defeated by this unlawful occupancy.

3. The third species of injury by ouster, or privation of the freehold, is by disseisin, †Disseisin is a wrongful putting out of him that is seised of the freehold.t The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turn

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

d Co. Litt. 277.

*-* Quoted, 9 Ill. 170; partly, 3 Call, 490; 3 Munf. 540.

+-+ Quoted, 5 Conn, 257; 3 Hen, & M. 384. Cited, 2 Conn. 11; 1 Pa. St.

8

ing him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in corporeal inheritances, [170] or incorporeal. Disseisin, of things corporeal, as of houses, lands, etc., must be by entry and actual dispossession of the freehold; as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession.* Disseisin of incorporeal hereditaments cannot be an actual dispossession; for the subject itself is neither capable of actual bodily possession, nor dispossession: but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our antient law books mention five methods of working a disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrein thereon, or demand it: 2. By forestaller, or lying in wait; when the tenant besetteth the way with force and arms, or by menaces of bodily hurt aftrights the lessor from coming: 3. By rescous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the distress at such time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of these circumstances 8amount to a disseisin of rent, that is, they wrongfully put the owner out of the only possession, of which the subject matter is capable, namely, the receipt of it. But all these disseisins, of hereditaments incorporeal, are only so at the election and choice of the party ine Co. Litt. 181.

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f Finch. L. 165, 166. Litt. 237, etc.

8 Previously, "This."

8 Previously, "work."

5 Previously, “And."

**Quoted, 11 Mo. 356; 2 Mon. B. 238; 38 Am. Dec. 151.

jured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised.* Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament.

And so too, even in corporeal hereditaments a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling himself to the more easy and commodious remedy of an assise of novel disseisin (which will be explained in the sequel of this chapter), instead of being [171] driven to the more tedious process of a writ of entry. The true injury of compulsive disseisin seems to be that of dispossessing the tenant, and substituting oneself to be the tenant of the lord in his stead; in order to which in the times of pure feodal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seisin or investiture, seems to have been 8 considered as necessary. But when in process of time the feodal form of alienations wore off, and the lord was no longer the instrument of giving actual seisin, it is probable that the lord's acceptance of rent or service, from him who had dispossessed another, might constitute a complete disseisin. Afterwards, no regard was had to the lord's concurrence, but the dispossessor himself was considered as the sole disseisor: and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseisor himself; but required a legal process against his heir or alienee. And when the remedy by assise was introduced under Henry II., to redress such disseisins as had been committed within a few years next g Litt. 588, 589.

h Hengh. parv. c. 7. 4 Burr. 110.

8 Previously, "antiently."

*Cited, 5 Conn. 526; 11 N. J. L. 272, 278; 15 N. J. L. 195, 198, 219.

† See note 62 to book 2, page 529, as to homage and livery of seisin,