of dealing with the land under cover of unresisted dominion. Bracton says that what gives prescriptive right is "possessio per longam, continuam et pacificam usum . . . per patientiam veri domini.” 1 Nevertheless the real "juridical" fact is not the exercise of power consequent on the relation of dominion and submission but the relation itself, and the term " possession" therefore comes to denote such relation with reference to other rights, if not with reference to easements.

Suppose a man, by virtue of an act of appropriation or some other happening, to have possession of a thing ex consensu and, in consequence, legal possession,- a legal power of excluding the generality from dealing with the thing. He may, nevertheless, stand in peculiar relations to individuals, to an owner for instance. If I appropriate a man's house and lock him out, the generality of my fellows may be morally bound to leave me alone. But the owner may remain morally and legally free to re-enter the house and deal with it to the extent of his ability. Or, if that is legally prohibited, the law may promise him legal possession upon suit brought and proof of his case. On the other hand the owner, although morally and legally free to re-enter, or promised reinstatement by the arm of the law if he asks for it, may nevertheless be submitting to the will of the possessor to keep him out and doing nothing. In such a case the relation of dominion and submission styled "possession of a right" reappears, and its continuance operates as in other cases to give right to the dominant will and perfect the moral and legal possession already bestowed upon it.

"The distinction between property and possession," says Sir Henry Maine, "is the distinction between the legal right to act upon a thing and the physical power to do so."2 And when we speak of the acquisition of title by long possession or adverse possession we no doubt have in mind, not a mere relation of dominance and submission, but a continuous exercise of a power of dealing with the thing consequent on continuing dominion. When we acquire property in this fashion we "take by use" according to the Romans. Nevertheless the significant fact is the relation of dominance and submission existing with reference to the person whose right is to be affected, a relation evidenced by the fact of

1 Sargent v. Ballard, 9 Pick. (Mass.) 251, 254.

2 Ancient Law, 3d Am. ed., 281.

undisturbed enjoyment. Dominance and submission may continue without use. Whether a man is able to deal with a thing himself or not, he can continue to warn off others. A ranchman may lose his steers, but his brand will continue to express his will.

The owner's submission to an appropriator of anything belonging to him must be unresisting to furnish a basis of title. "Possession has a double basis," says the Code, "a basis in law and a basis in fact, and each has its legal effect when confirmed by the habitual silence (silentio ac taciturnitate) of all adversaries. One cannot be considered to possess during litigation, because although he holds the thing, the pendency of a legal contest makes him uncertain as to the legal basis of his possession." That is to say, if my adversary is contending with me or manifesting opposition either in or out of court, I am not enjoying the quiet submission to my will necessary to the acquisition of property. "Transferuntur dominia," says Bracton, “sine titulo et traditione per usucaptionem, scilicet per longam continuam et pacificam possessionem." 2 And the French Code enacts that "in order to be able to prescribe," that is, as we would say, to take title to a thing by adverse possession, "there is required possession, continual and uninterrupted, peaceable, public, unequivocal and under the title of proprietor."

Rather a close distinction is to be noted here between acquiescence and leave or favor. If a man is occupying land or using a way across it because the owner gives him leave, his possession is not adverse, he is not taking by use. The owner is not submitting to him. He is acting under the owner's leave and favor. In Collins v. Collins, for instance, there was held to have been no adverse possession because the possession was "permissive." On the other hand, Putnam, J., in Sargent v. Ballard," says, "The occupation [giving prescriptive right] must be with the knowledge and permission of the owner." To suffer, without protest, is, in a sense, to permit. But the distinction is between sufferance and favor, between patientia and gratia, and it may not be easy to see, in an actual case, which relation exists.

"This tribune dared to decree," says Cicero, "that whatever any one had possessed from the time of Marius and Carbo he should hold by a perfect title." The word "possess" as here used

no doubt imports power of dealing with. The decree referred to provided that the continuing exercise during the period specified of the power of dealing with the res due to the dominion of the holder of the land over his adversaries should give the right of property. Now this power of dealing with a thing is commonly referred to as physical power. Sir Henry Maine has already been quoted as defining possession to be a physical power of dealing with. But an appropriator's power of dealing with a thing is not only physical power but moral power. His appropriation gives him, as against the generality, possession ex consensu. And he has a power of dealing with the thing due not only to the submission of his adversaries, but to a moral consensus on the part of his fellows generally. We may think of his legal possession against his fellows as the consequence of his power of dealing with the thing, and if we ignore his moral power we may deem it a consequence merely of his physical power of dealing with the thing. But the real basis for his legal possession against his fellows generally is not his power of dealing with the thing, physical or moral, but such moral consensus. If the common conscience ordained a general respect to his will, his title or "natural right" to legal possession would not be affected by the fact that he had neither will nor power to deal with the thing itself.

The ordinary case, therefore, of a possessor without title displays this de facto basis, - possession ex consensu as against the generality and a continuing dominion and submission with respect to adversaries. And with this de facto basis we may build our legal structure in various ways. We may give the possessor ex consensu legal possession as against every one but the owner forthwith. We may give him legal possession as against no one until long dominion has given him a moral right as against the owner. Or we may give him legal possession against every one, including the owner, forthwith (leaving open to the owner only the via legis) and give to his long dominion the effect of finally extinguishing the owner's right of action. Our law (barring its prohibitions of vis armata) leaves the owner free to take and deal with his own. The Roman law barred the via facti against him.2 Our law, and the Roman law as well, give an appropriator legal possession of land owned by another. He might be denied protec

1 Holmes, Common Law 210.

2 Perry, Savigny on Possession 304, 313, 328, 336, 343, 345.

tion of any sort before extinguishment of the owner's right, just as a person acquiring by prescription a right of way has (with us at least) no protection against hindrance of his use by any one until the right has been acquired.1 "A way, until it becomes a right of way," says Mr. Justice Holmes, "is just as little susceptible of being held by a possessor's title, as a contract."2 In Northern Pacific R. R. Co. v. Lewis, the court held a trespasser had no possession of timber which he had cut in government forests and stored on government lands. It does not follow, necessarily, from this decision that the trespasser could not get title by a continuous and undisputed assertion of dominion. If B built a fence around A's field and proceeded to raise crops, everybody might remain perfectly free, as against B, to tear down the fence and root up the crops. And yet if B continued to maintain the fence and raise crops, and A did nothing, B might in time acquire a legal right to exclude A and everybody else.

1 Holmes, Common Law 241, 354.
8 162 U. S. 366.

Albert S. Thayer.

2 Ibid. 354.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

COVENANTS RUNNING WITH THE LAND ENFORCEABLE IN EQUITY. — At common law in England the burden of covenants running with the land does not pass to an assignee of the covenantor. Nevertheless, if the assignee takes without value or with notice of the covenant, equity will enforce the burden against him, usually without regard to whether or not the covenant fulfills the requirements of covenants running with the land at law. It is well settled in England, however, that the jurisdiction of equity extends only to restrictive covenants, and that the courts will not enforce affirmative agreements against any one but the original covenantor.2 By the common law rule as often stated in this country the burden and the benefit of covenants running with the land pass respectively to the assignees of the covenantor and of the covenantee. Accordingly the Appellate Court of Indiana has recently decided that the plaintiff who conveyed land to a railroad which had covenanted to build and maintain fences along its right of way, may recover at law against the assignee of this railroad for breach of these covenants. Chicago & S. E. R. R. Co. v. McEwen, 71 N. E. Rep. 926 (Ind., App. Ct.).

In view of this difference in the law it may well be asked whether our courts of equity will follow the English rule of enforcing only restrictive agreements. It must be clear that wherever, as in the Indiana case, the

1 Tulk v. Moxhay, 2 Ph. 774.

2 Austerberry v. Corporation of Oldham, 29 Ch. D. 750.

3 Midland R. R. Co. v. Fisher, 125 Ind. 19 (covenant to fence); Fisher's Executors v. Lewis, Clark (Pa.) 422 (covenant to build); Gilmer v. R. R. Co., 79 Ala. 569 (covenant to build flag-station); Sims, Covenants 148.