court, and jurisdiction over the lands, and to annul the former proceedings (n). Thus much for the non-performance of contracts, express or implied; which includes every possible injury to what is by far the most considerable species of personal property; viz. that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to personal property, with their several remedies by suit or action. (n) Rast. Entr. 100, b. 3 Lev. 415. Lutw. 711. 749. CHAPTER X. OF INJURIES TO REAL PROPERTY: AND, 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. Real injuries, then, or injuries affecting real rights, are Injuries affectprincipally six: 1. Ouster; 2. Trespass; 3. Nusance; ing real rights. 4. Waste; 5. Subtraction; 6. Disturbance. Ouster, or dispossession, is a wrong or injury that car- 1. Of ouster or ries with it the amotion of possession; for thereby the dispossession 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 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 follow- of the freehold, ing methods, 1. Abatement; 2. Intrusion; 3. Disseisin; how effected. 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 I. By abate seised of an inheritance, and before the heir or devisee ment. enters, a stranger who has no right makes entry, and * gets possession of the freehold: this entry of him is called [*168 ] an abatement, and he himself is denominated an abator (a). 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 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 (b); 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 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 action, 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 Abatement now to it. The last species of abatement is that we have now treated signifies before us; which is also a figurative expression to denote hold of the right that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger. that the free heir is over thrown. 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 (1), considering man merely as an individual, is diametrically opposite to the (a) Finch, L. 195. (b) Page 5. (1) Justice has no place in nature, if what is meant by nature be man in his insulated, not in his social state, and unless indeed the law of the strongest shall be deemed natural justice. Justice is purely conventional. The human being has found and occupies a cavern in a rock; or, he shall have formed it out of the sand bank; a stronger, one of his own species, drives him forth, and repels his re-entrance; this is indeed natural; but is it justice? Justice then is a result only of the social union; it is another step in the condition of man; but nothing is so entirely artificial as justice, nothing which arrives at maturity later in society, nothing takes so much of mental culture, to render it fitting for its uses. How often may it be asserted with truth that much of law is injustice, and that little of justice is found in some law. The seed existed it is true, but how remote is the oak of a thousand centuries from its acorn; how unlike it! 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 devisee; 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 Entry by a therefore of a mere stranger by way of intervention be- stranger the highest injury tween the ancestor and heir or person next entitled, which to real property. *keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property (2). [*169 ] 2. The second species of injury by ouster, or amotion 2. By intrusion, of possession from the freehold, is by intrusion; which is what. 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 Where it hapof certain lands and tenements, and a stranger entereth pens. thereon, after such death of the tenant, and before any entry of him in remainder or reversion (c). 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 ex- Instance of ample, if A. dies seised of lands in fee-simple, and before abatement. the entry of B. his heir, C. enters thereon, this is an abatement; but if A. be tenant for life, with remainder to Also of intruB. in fee-simple, and after the death of A. C. enters, this sion. 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 (c) Co. Litt. 277. F. N. B. 203, 204. (2) Littleton, sect. 396, 397. If the younger son enters before the eldest it will be an abatement, though if he afterwards die seised and the land de scend to his issue, the descent does not 3. By disseisin, what. May be effected 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 (3), 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 (d). 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 turning 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, *or incorporeal. Disseisin, of things corporeal, as of houses, lands, &c. must be by entry and actual dispossession of the freehold (e); as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or Of incorporeal, his servants out of possession. Disseisin of incorporeal by disturbance. hereditaments cannot be an actual dispossession; for the in what. [* 170 ] Of things corporeal, by actual dispossession of the free hold. 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 As regards rent, at, or enjoying them. With regard to freehold rent in five methods of particular, our ancient law books (f) mention five methods of working a disseisin thereof: 1. By enclosure, where 1. By enclosure. 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 working disseisin : 2. By forestaller. (d) Co. Litt. 277. (e) Co. Litt. 181. (f) Finch, L. 165, 166. Litt. $ 237, &c. (3) And see Shepp. Touchs. 196. |