suing in on Amongst the benefits to the possessor in suing may As to his rebe noticed the remedies incident to his possession, for medies ou asserting his right to, and for maintaining it, and his position in pursuing those remedies. Naked possession alone, independent of the period of its duration, and of the title of the possessor, enables the possessor or his heir (r), or his devisee (y), to maintain ejectment (z) —ejectment, against any person who stands neither on any former possession of his own, nor derives title under the possession of any other person, and although the actual possession be wrongful as against third persons (a), even against the Crown (b)—in other words, against mere wrongdoers, and also against persons claiming through another person admitted to be a tenant, but who acquired the possession through the testator of the lessor of the plaintiff, but giving no evidence of title in themselves (c); and also against strangers to the actual possessor, who is in as either tenant or servant to the testator of the lessor of the plaintiff (d); for a tenant or a servant in possession, or those claiming under him, cannot dispute the title of his landlord or master, or of those claiming under him (e). "Against a wrongdoer," said Lord Campbell, C. J. (f), "possession is a title; and I think it most reasonable law, and essential for the interests of society, that peaceable possession should not be disturbed by wrongdoers." A person trespass, having a right to land acquires by entry the lawful possession of it, may maintain trespass against any (x) Doe d. Pritchard v. Jauncey, 8 Car. & P. 99. (y) Asher and Ux. v. Whitelocke, supra. (z) Doe d. Hughes v. Dyeball, 1 Moo. & M. 346; 3 Car. & P. 610, S. C.; Davison v. Gent, 26 Law J., Ex.,N. S. 122; Every v. Smith, Ib. 344; Asher and Uæ. v. Whitelocke, supra. (a) 5 B. & Ald. 603. (b) Harper v. Charlesworth, 4 B. & C. 594. (c) Doe d. Willis v. Birch- (e) Doe d. Knight v. Lady (f) 5 Ell. & B. 805. pos person who, being in possession at the time of the entry, wrongfully continues upon the land, and need not declare, on making the entry, that he enters to take session, for any act showing his intention is sufficient (i). Possession for twenty years gives such a right to the property as to preserve the possessor against mere entry by a former claimant having title immediately before such possession, and as will support an act of ejectment against all persons not having a better title (k). And even possession for a period short of twenty years enables the possessor to maintain such action against a person who has had mere possession for a less period (7), and as against a mere wrongdoer to recover both upon his own title and upon his prior possession, and, failing on his title, to rely on such possession (m). But the possession must be exclusive (n). A person, however, not in actual possession cannot maintain an action of trespass (o), for it is founded on actual possession, and the person bringing such action must have either the actual possession or the general property, which brings possession to him (p). Therefore a mere right to enter upon land, and to do certain acts, confers no sufficient possession. But where persons erected at their own expense, and with their own materials, upon land, with the consent of the owner of the soil, a dam for a special purpose, they were held entitled to the possession of the dam until (i) Butcher v. Butcher, 7 B. & C. 399; Catteris v. Cowper, 4 Taunt. 547; Harker v. Birkbeck, 3 Burr. 1556; Graham v. Peat, 1 East, 244; Corry v. Holt, 11 East, 70, n.; Chambers v. Donaldson, Ib. 65; 7 Mee. & W. 312; Heath v. Milward, 2 Bing. N. C. 98; Matson v. Cook, 4 Ib. 392. (k) Sticker v. Burney, 1 Ld. Raym. 741; 2 Salk. 421; Doe d. Harding v. Cooke, 7 Bing. 346. See also Denn v. Barnard, Cowp. 595. (1) Doe d. Carter.v. Barnard, 13 Q. B. 945. (m) Darison v. Gent, 26 L. J., Ex., N. S. 122; Every v. Smith, Ib. 344. (n) Stocks v. Booth, 1 T. R. 428; Revett v. Brown, 5 Bing. 7. (0) Litchfield v. Ready, 5 Ex. 939; Mayhew v. Scuttle, 4 Ell. & B. 347; Ryan v. Clark, 14 Q. B. 73. (p) Duke of Newcastle v. Clark, 8 Taunt. 631; Hollis v. Goldfinch, 1 B. & C. 218. that purpose was completed, and therefore to maintain trespass against a wrong-doer (q). A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can, without delay, reinstate himself in his former possession (r). Naked possession enables the possessor also to distrain -distress. damage-feasant the cattle of a stranger who has no title (s). things incorpo The enjoyment or quasi possession of things or rights In relation to incorporeal for twenty years is sufficient to sustain an real. action on the case for the disturbance of them (t). In the case of a ferry the creation of it must be by grant or licence from the Crown (u), and the owner, although he must have a right to use the land on both sides of the water, needs not have the property in the soil on either side (v), and the ferry is thus a mere jus in re, or thing incorporeal, and the mere user and enjoyment of it by the person exercising them is, as against mere wrongdoers, a sufficient possession and title (x); and in an action for a disturbance of the ferry, such person has merely to prove his possession, and the existence of the ferry for a long period of time (y), without the production of the grant or licence from the Crown, and the existence of the ferry for a length of time and the possession of it by the claimant, in the exercise of a right which, if it could not exist but by deed, are grounds for the presumption that the ferry was legally created (z). If, however, instead of the action being merely in relation to the possession, the (q) Dyson v. Collick, 5 B. & Ald. 600. (r) 12 Ad. & E. 629. (8) Plowd. 431. (t) Holcroft v. Heel, 2 Wms. Saund. 175, n.; 1 Bos. & P. 400. (u) Hardr. 163; Blissett V. Hart, Willes' Rep. 508. L. (v) Peter v. Kendal, 6 B. & (y) Peter v. Kendal, supra. K Action on the case: -ferry; -pew. title of the plaintiff be in question, the grant or licence must be shown, or such evidence of ancient user adduced as will satisfy a jury that the ferry was so created, although the grant or licence be not forthcoming (a). The possession, or quasi possession, by user of a seat in a church is merely the privilege of sitting in such seat (b) for the special purpose of attending divine service (c); and when not annexed to any house is not such a temporal right as that in respect of it an action at common law for a disturbance in the exercise is maintainable (d). But if claimed as so annexed, the user for a long period is sufficient to sustain such action (e), and without proof of repairs, although they are alleged in the declaration (ƒ), and either at common law (g) or in the ecclesiastical court (h). And proceedings in the latter court, in which the claimant failed to establish his right to the seat, are not conclusive evidence against him in an action at law against a mere disturber of the right (i). The uniform and exclusive possession of the inhabitants of a particular messuage, connected with the burthen of maintaining and repairing the seat, is sufficient evidence to establish a prescriptive title to the seat (k); and in ordinary cases, the user or quasi possession, and no evidence of the origin of it, raises, in an action against a mere wrongdoer, a presumption of right in the person exercising such user (1). But if the seat be claimed and alleged as annexed to a house in the parish, yet, if the origin of the pew (a) See 2 You. & Jer. 288. (c) 8 B. & C. 294. (d) Stocks v. Booth, 1 T. R. 428; Mainwaring v. Giles,supra. (e) 12 Co. 106; Co. Litt. 121 b, 122 a; Rogers v. Brook, 1 T. R. 431,n.; Kenrick v.Taylor, 1 Wils. 326; 8 B. & C. 295. (f) Kenrick v. Taylor, supra. (g) Pittman v. Bridger, 1 Phill. 316. (h) Cross v. Salter, 3 T. R. 639. (i) Corven's case, 12 Co. 105; per Sir J. Nicholl, 1 Phill. 325; Lousley v. Hayward, 1 You. & Jer. 583. (k) Griffith v. Matthew, 5 T. R. 296; 3 M. & Ry. 395. (1) Cross v. Salter, supra; Lousley v. Hayward, 1 You. & Jer. 583. itself in which the seat is claimed be shown, the possession, even for a long period, would be insufficient to maintain an action against a mere disturber (m). In the absence of evidence against the right the enjoyment of a pew claimed in respect of a house not in the parish is sufficient to maintain an action on the case against a mere disturber. For the house, although not now within the present boundaries of the parish, may be presumed to have been formerly within the ecclesiastical limits of the church (n). The quasi possession of a seat in a church is not Trespass: sufficient to enable the possessor to maintain, even pew. against a mere disturber, an action of trespass, for the possession necessary to maintain an action of that nature must be exclusive (o), and the possession of the church is in the parson (p). The only remedy which the claimant of such a right has, either against a mere disturber, or any other person, besides the remedies in the ecclesiastical court, is an action on the case at common law (q). Amongst the benefits to the possessor, in being sued, On being sued the onus promay be noticed the highly important one of having the bandi shifted. onus probandi, or burden of proof, thrown on, and if no proofs are offered on either side, or no sufficient proofs on the side of his adversary (r), of being entitled to succeed against him, even where the Crown is the adversary, after a possession of the land for twenty years without disturbance (s).. For the adversary must recover upon the strength of his own title (t), and cannot recover (m) Griffithv. Matthew, 5 T. R. 296; Morgan v. Curtis, 3 Man. & Ry. 389. (n) Lousley v. Hayward, 1 You. & Jer. 583. (0) Revett v. Brown, 5 Bing. 7; sup. p. 128. (p) Stocks v. Booth, 1 T. R. 428. (q) Stocks v. Booth, 1 T. R. 428; Mainwaring v. Giles, 5 B. & Ald. 361; 3 Bing. 138; 8 B. & C. 294. (r) Sav. Poss. B. i. ss. 3, 6; 2 Jac. & W. 164; Best on Evi- (8) 21 Jac. 1, c. 14; Att.-Gen. (t) Allen v. Rivington, 1 Saund. 111; Frogmortond. Fleming v. Scott, 2 East, 467; Goodtitle d. Parker v. Baldwin, 11 East, 488; 15 Ir. Law Rep., N. S. 289. |