title in the possessor. Mere possession may be, and is, sufficient under many circumstances to give a title adversely; and although perhaps now no better expression than adverse possession can be used, yet possession is not adverse in the sense in which that phrase was used before the recent Statutes of Limitation passed (j). The 3 & 4 Will. 4, c. 27, has put an end to all questions and discussions whether possession be adverse or not (k). character at ment. It is extremely important to see that a possession To be held aconce taken shall be held according to the right under cording to its which it was taken, and shall not be changed into a pos- the commencesession according to another right, except in those cases where the law clearly acknowledges the right of remitter (1). If possession be originally lawful the possessor cannot change the ground of and treat the possession as unlawful (m). Thus a person, claiming an estate for life under a will and entering on the lands, cannot afterwards say that the possession was unlawful, so as to give his heir a right against the remainderman (n). So possession which can be referred to a title, which may be either rightful or wrongful, shall be referred to the rightful one (o). things sub The term land, being nomen generalissimum, every- Possession of thing subjacent, whilst united in title to the land, is lands includes included in it (p). Prima facie the possession of jacent; the land includes the possession of the things subjacent, but the title to them may be in another person. Thus, the possession of mines under copyhold land is in the tenant, but the title to them may be in the lord (q), and so as to the mines under such (j) 2 De Gex, M. & G. 476. (k) 11 Ad. & E. 1015. (1) Per Lord Redesdale, 2 Sch. & Lef. 109. (m) 1 Sch. & Lef. 427. (n) See Anstee v. Nelins, 1 Ex., N. S. 225. (0) 2 Ball & B. 272; Doe d. Milner v. Brightwn, 10 East, 583; Thomas v. Thomas, 2 Kay & J. 79; Keene v. Deardon, 8 East, 248; Doe d. Smith v. Pike, (p) Co. Litt. 4a; Touch. 90; (q) Townley v. Gibson, 2 T. R. 701; Bourne v. Taylor, supra ; Rowe v. Brenton, 8 B. & C. 766; Lewis v. Branthwaite, 2 B. & Ad. 437. -of part of waste, mines, when of the whole. copyhold land as is commonly designated as customary freehold (r); or the possession may be in a lessee, and the title to them in the lessor (s); or the possession may be in owner of the land, and the title to them in another under his licence to take them (t); or both the possession of, and the title to, the mines may be absolutely severed from the possession of, and the title to, the land, as in a grant of the mines by the owner of the land to another person, or on a conveyance from such owner of the land with an exception of the mines (u). So the mines under lands allotted on an inclosure may belong to, and be in the possession of, the lord of a manor, and only the surface of the land the property and in the possession of the allottee (x). As acts of ownership in any part of a continuous waste or common are evidence of ownership as to all parts of it (y), so, in the case of mines, in favour of right, or in support of the agreement of parties, that possession of part of them is possession of the whole is matter of legal presumption (z). For in the case of a grant of the minerals in a large district, it is not in the nature of things that the parties should be prepared to prove possession taken as to every part: minerals once taken can never be taken again; they are gone for ever; and therefore to require proof of actual enjoyment of every part would be in effect altogether precluding the setting up of a title by enjoyment (a). That presumption, however, where it would be against or subversive of right or the agreement of parties, is never made (b). In the case of Kyle v. O'Connor (c) a lease for lives renewable for ever of certain quarries within a manor was granted in 1683. In 1744 a part of the manor and also the right of quarrying on such part were sold and conveyed in fee by persons entitled to the manor, but without any reservation of or any reference to the lease. The lease was renewed from time to time by the lessees and those claiming under them. In 1864 the persons entitled under the lease and renewals presented a petition to the Court of Chancery for a renewal of the lease by the persons then entitled under the conveyance of 1744 and other persons, alleging the exercise of the right of quarrying over the manor undisturbed from 1683 up to 1862, but adduced no direct evidence that the quarries had been opened and worked at the time of the conveyance of 1744. No evidence was adduced showing the respondents to claim the right to the exclusion of all other persons, but the respondents appeared to have acquiesced in the working of the quarries by the petitioners. The exercise of the right unquestionably and indisputably, as long as living memory extended, and a title justifying such exercise, without any evidence to displace the only title which could legalize the enjoyment, were found, and hence the court concluded that there was that user of the right in 1744 which would give notice of the instrument under which the title of the petitioner was derived, and decreed a renewal; but, as regarded the land and quarries included in the conveyance of 1744, except the quarries open in certain lands, refused the renewal, against the persons claiming under that conveyance. Actual possession by enjoyment of the profits is, in Effect of positself, a bar, and a transfer of the property, without session in fact. corroboration by intermediate conveyances (d); for the law inclines rather to long possession without showing (b) See 2 B. & Ald. 737; M Donnell v. M'Kinty, supra. (c) 16 Ir. Ch. R. 46. any deed than to an ancient deed without possession (e), and whatever may be the nature of the possession, the only question now is whether the period of limitation prescribed has elapsed since the right accrued (ƒ). The 3 & 4 Will. 4, c. 27, was intended to quiet possession, by removing all doubts or difficulties with respect to the protection arising from length of time in cases of long and uninterrupted possession (g). In Poole v. Griffith (h), the court said, that as cap. 27 bars not only the remedy but also the right, the claimant must show, within that time, not only a right, such as may exist on paper or parchment, but a title to the possession unbarred by the statute (i); and that when such a title is shown, the defendant, to displace it, must, on his part, show a title sufficient for that purpose, and cannot rest on simple possession. An adverse possession for twenty years would sustain such a title, but must be proved. But in the same case, on error (k), Pigot; C. B., said he saw nothing in the 2nd and 3rd sections of the statute, or in the authorities by which they have been expounded, to abridge the protection given to possession, or to shift from a plaintiff the burden of proving a possessory title unbarred by the Statute of Limitations; or, in other words, to enable him to recover upon the weakness of the title of his adversary instead of upon the strength of his own. But to establish a defence under the statute it is not sufficient to show that the plaintiff having title is out of possession, but that some other person has been in possession for the required period of twenty years (7). (e) 2 Inst. 118. (f) 2 M. & W. 911; 11 Ad. & E. 1015; 1 Longf. & Town. Ir. Rep. 131. (g) Per Lord Plunket, C., Browne v. Bishop of Cork, 1 Dru. & Wal. 700, 716. (h) 15 Ir. C. L. R. 239. (i) Nepean v. Doe d. Knight, 2 M. & W. 894. (k) 15 Ir. C. L. R. 288. (1) M Donnell v. MKinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 Ex. 562; Poole v. Griffith, on error, supra. CHAPTER III. THE NATURE OF POSSESSION AS REGARDS THINGS IN CORPOREAL, OR OF POSSESSION QUASI, OR ANALOGOUS TO POSSESSION PROPER. sionis and jus possidendi, as to things incorporeal. IN considering possession in relation to things incor- Jus possescorporeal, or quæ tangi non possunt, nec videri (a), must be kept distinctly in view, and more so perhaps, if possible, than when considering it in relation to things corporeal, the distinction noticed in the last chapter between the right of possession, jus possessionis, and the right to possess, jus possidendi; and this jus possessionis, or the rights springing from, or pertaining to possession, requires, in its relation and application to things incorporeal, to be clearly conceived. sion, what. Things corporeal only, says Pothier (b), are sus- Quasi possesceptible of possession. Possideri possunt quæ sunt corporalia. Things incorporeal, that is, quæ in jure consistunt, are susceptible, not indeed of possession truly and properly so called, for they do not fall under the cognizance of the senses, tangi non possunt, nec videri, but of only quasi possession: jura non possidentur, sed quasi possidentur; and this possession consists in only the enjoyment of the rights by the person entitled to them, and that enjoyment stands in the place of possession (c), and is termed quasi possession. And as true possession consists in the exercise of property, so this quasi possession consists in the exercise of a jus in re, (a) Co. Litt. 9 å. (b) Œuvres, tom. 4, p. 535. L. (c) 1 Ib. part v. chap. i. s. 316. G |