exercise it for a great number of years (a). It may also be PART III. TITLE V. which a may be lost. lost by unity of possession of as high and perdurable estate in the thing claimed, and in the land out of which it is prescription claimed by such prescription; because that is an interruption in the right (b). And where the subject-matter of a prescription is destroyed, the prescription is lost; as if the repair of a castle is claimed by a prescription, and the castle is destroyed, the prescription is gone. But an alteration in the quality of the thing to which a prescription is annexed will destroy the prescription: so that if a person prescribes in a modus decimandi for the tithes of a park, and the park is disparked, yet the prescription continues; for it is annexed to the land (c). 1459. (a) 3 Cruise T. 31, c. 1, § 41. Litt. 114 b. (c) 3 Cruise T. 31, c. 1. § 36. 37. TITLE VI. OF ADVERSE POSSESSION AND THE OPERATION OF THE STATUTES OF LIMITATION. PART III. T. 6, CH. 1. Adverse possession, how ob tained. 1. By abatement. 2. By intrusion. 3. By dis seisin. CHAPTER I. OF ADVERSE POSSESSION AND ITS CONSEQUENCES, UNDER ADVERSE possession was obtained in five ways:— 1. By abatement, which is a wrongful entry by a stranger, on the death of a person seised of an inheritance, before the heir or devisee enters (a). 1460. 2. By intrusion, one sense of which is a wrongful entry by a stranger, after the determination of a particular estate of freehold, before the remainderman or reversioner enters; while in another sense it signifies an entry upon the demesnes of the Crown, and taking of the profits thereof (1). 1461. 3. By disseisin, which is the wrongful putting out of him who is seised of the freehold in actual possession. Disseisins of incorporeal hereditaments are only at the election of the party injured, who, for the sake of more easily trying the right, chooses to suppose himself disseised; for, as there can be no actual dispossession, there cannot be a compulsory disseisin of any incorporeal hereditaments. Hence, where a person has been once seised or possessed of a rent he cannot afterwards be disseised or dispossessed of it, except at his election (c). 1462. (a) Co. Litt. 277 a. (c) 3 Cruise T. 28. c. 2, § 28-30. PART III. A disseisor acquires by the disseisin a tortious fee simple, CHI although he claim a less estate; it being a rule that a dis-s seisor cannot qualify his own wrong (a). 1463. tinuance. 4. By discontinuance, which, as it existed in more modern 4. By discontimes, was a divestment of an estate tail in things lying in livery, and of the estates in remainder or reversion, and a turning of them into rights of action, by a feoffment in fee, in tail, or for the life of the feoffee or another person by a tenant in tail in possession, or a fine by him without proclamations, or a voidable recovery by him (b). To make a discontinuance, the conveyance must be of such an estate as, in its original creation, might by possibility endure beyond the life of the tenant in tail. When the estate so created was at an end, the discontinuance was at an end (c). An estate tail could not be discontinued, unless the remainder or reversion were also discontinued, which they could not be if vested in the Crown (d). 1464. A discontinuance cannot now arise, in consequence of the abolition of fines and recoveries by the stat. 3 & 4 Will. 4, c. 74, and the abolition of the effect of warranties (which sometimes worked a discontinuance) (e) by s. 14 of that Act, and the abolition of the tortious operation of feoffments by the stat. 7 & 8 Vict. c. 76, s. 7, and 8 & 9 Vict. c. 136, s. 4, and in consequence of s. 39 of the stat. 3 & 4 Will. 4, c. 27, which provides that no discontinuance happening after December 31st, 1833, shall defeat any right of entry. 1465. forcement 5. By deforcement. This, in its most extensive sense, 5. By designifies the holding of any lands or tenements to which (a) Co. Litt. 296 b, n. 1; see also 180 b, n. 7, 297 a, n. (1). (b) See 3 Bl. Com. 171; and Co. Litt. lib. 3, c. 11, particularly 325, a b, 326 b, 327 a b, 332 a, n. 1, 336 a, 347 b; Anderson v. Anderson, 30 Beav. 209; and see infra on the Operation of Fines and Re- (c) Co. Litt. 333 a, n. 1; Litt. s. 630. (d) Co. Litt. 335 a. (e) Co. Litt. 329 a, 330 a, n. (1). T. 6, CH. I. PART another person has a right; so that it includes as well an abatement, an intrusion, or a disseisin, as any other species of wrong whatsoever, whereby the rightful owner is kept out of possession. But, as contra-distinguished from the former, it is such a detainer of the freehold from the person who had the right of property but never had any possession under that right, as is not an abatement, intrusion, disseisin, or discontinuance: as where escheated lands were withheld from the lord; or where two persons, as coparceners, have the same title to lands, and one of them enters and keeps out the other; or where a man seised of lands covenants to convey them to another, and neglects or refuses to do so, and continues possession against him (@). 1466. Encroach ments. Encroachments from waste land are a species of disseisin, and, like other acquisitions by wrong, carry the fee, and descend to the heir of the wrong-doer, or, if made by a tenant for life or years, enure to the benefit of the landlord, even though they be separated by a road or a stream, or a narrow strip of land, from the land leased (b). They depend on adverse possession, and the right of entry both of the lord and commoners is barred by [twelve (formerly twenty)] years' possession (c). 1467. If a copyhold tenant makes an encroachment upon the waste of a manor, in which there is a custom of granting portions of the waste as copyhold, such encroachment becomes by adverse possession, under the Statutes of Limitation, a copyhold and not a freehold accretion to the original holding (d). 1467a. (a) 1 Cruise T. 1, § 27, 29; 3 BL. Com. 174; Co. Litt. 277 a, 331 b. and n. (1). (b) 1 Jarm. & Byth, by Sweet, 78; Doe d. Lloyd v. Jones, 15 M. & W. 580; Andrews v. Hailes, 2 E. & B. 349; Doe d. Croft v. Tidbury, 14 C. B. 304; Doe d. Baddeley v. Massey, 17 Ad. & E. (N. S.) 373; Earl of Lisburne v. Davies, L. R. 1 C. P. 259. () 1 Jarm. & Byth, by Sweet, 77, 78; Sugd. Concise View, 274; stat. 37 & 38 Vict. c. 57. s. 1,in Appendix. (d) Att.-General v. Tomline, L. R. 5 Ch. D. 750. T. 6, CH. 1. - Partial disseisin. No person can be disseised of an undivided part of his PART III estate (a). And a disseisin of the tenant for life is a disseisin of all those in remainder or reversion, and converts their estate to a right of entry; for a disseisin, unless the claim is limited to a particular estate which exists, is always in fee or of the fee (). 1468. coparceners, tenants, and common. Before the stat. 3 & 4 Will. 4, c. 27, the possession of Possession of one coparcener was the possession of the other, and the joint entry of one coparcener generally was accounted in law tenants in the entry of both, and no divesting of the moiety of the other (c). And ordinarily the possession and seisin of one tenant in common was the possession and seisin of the other (d). But thirty-six years' sole and uninterrupted possession by one tenant in common, without any account or demand made, or claim set up by his companion, was held a sufficient ground for a jury to presume an actual ouster of the co-tenant (e). 1469. and a younger The entry of a younger brother was not an abatement, Eostresion of but his possession was deemed to be that of the elder (ƒ). brother. 1470. abatement, disseisin, deforce By the old law, the effect of a disseisin, per se, was Effect of simply to divest the estate of the rightful owner in such a intrusion, manner as to take away the actual seisin, or seisin in deed, discontinu or possession, and convert the estate, from an estate in pos- ment. session, and clothed with the actual seisin, into an estate vested in interest or right only, and clothed with a constructive seisin or seisin in law, or into a right of entry, as it was called. This effect might be removed, and the actual seisin and possession restored, by an entry or by a claim upon or near the land, in the presence of witnesses, made once in the space of every year and a day, and thence (a) Burton, § 396. (b) 2 Pres. Shep. T. 325; Watk. Conv. 3rd ed. by Prest. 74. (e) 2 Cruise T. 19, § 7: 2 BI. Com. 188. (d) 2 Cruise T. 20, § 14. (ƒ) 1 Cruise T. 1, § 28. |