CHAPTER THE TENTH.

OF INJURIES TO REAL PROPERTY, AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.

I

COME now to confider fuch injuries as affect that fpecies of property which the laws of England have denominated real; as being of a more fubftantial and permanent nature, than those transitory rights of which personal chattels are the object.

REAL injuries then, or injuries affecting real rights, are principally fix; 1. Oufter; 2. Trefpafs; 3. Nufance; 4. Wafte; 5. Subtraction; 6. Disturbance.

OUSTER, or difpoffeffion, is a wrong or injury that carries with it the amotion of poffeffion; for thereby the wrongdoer gets into the actual occupation of the land or hereditament, and obliges him that hath a right to feek his legal remedy; in order to gain poffeffion, and damages for the injury sustained. And fuch oufter, or difpoffeffion, may either be of the freehold, or of chattels real. Oufter of the freehold is effected by one of the following methods, 1. Abatement; 2. Intrusion; 3. Diffeifin; 4. Difcontinuance; 5. DeforceAll of which in their order, and afterwards their refpective remedies, will be confidered in the present chapter.

ment.

1. AND, firft, an abatement is where a perfon dies feifed of an inheritance, and before the heir or devifee enters, a stranger

who

hi pinxit.

LORD CHIEF BARON GILBERT.

Published as the Act directs by T. Cadell Strand Sep. 11793.

T.Holloway sculpsit.

who has no right makes entry, and gets poffeffion of the freehold: this entry of him is called an abatement, and he himfelf is denominated an abator ". It is to be obferved that this expreffion, of abating, which is derived from the French, and fignifies to quash, beat down, or deftroy, is used by our law in three fenfes. The firft, which feems to be the pri mitive sense, is that of abating or beating down a nusance, of which we spoke in the beginning of this book; and in a like fense it is used in ftatute Weftm. 1. 3 Edw. I. c. 17. where mention is made of abating a castle or fortress; in which cafe it clearly fignifies to pull it down, and level it with the ground. The fecond fignification of abatement is that of abating a writ or action, of which we shall fay more hereafter here it is taken figuratively, and fignifies the overthrow or defeating of fuch writ, by fome fatal exception to it. The laft fpecies of abatement is that we have now before us; which is alfo a figurative expreffion to denote that the rightful poffeflion or freehold of the heir or devifee is overthrown by the rude intervention of a stranger.

THIS abatement of a freehold is fomewhat fimilar to an immediate occupancy in a ftate of nature, which is effected by taking poffeffion of the land the fame inftant that the prior occupant by his death relinquishes it. But this, however agreeable to natural juftice, confidering man merely as an individual, is diametrically oppofite to the law of fociety, and particularly the law of England: which, for the prefervation of public peace, hath prohibited as far as poffible all acquifitions by mere occupancy: and hath directed that lands, on the death of the prefent poffeffor, fhould immediately vest either in fome perfon, expressly named and appointed by the deceased, as his devisee; or, on default of such appointment, in fuch of his next relations as the law hath feleled and pointed out as his natural reprefentative or heir. Every entry therefore of a mere ftranger by way of intervention between the ancestor and heir or perfon next entitled, which

Finch. L. 195.

b

Fage 5.

kceps

keeps the heir or devifee out of poffeffion, is one of the highest injuries to the right of real property.

2. THE second species of injury by oufter, or amotion of poffeffion from the freehold, is by intrufion: which is the entry of a stranger, after a particular eftate of freehold is determined, before him in remainder or reverfion. And it happens where a tenant for term of life dieth feifed of certain lands and tenements, and a stranger entereth thereon, after fuch death of the tenant, and before any entry of him in remainder or reverfion. This entry and interpofition of the ftranger 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 reverfion. For example: if A dies feifed of lands in feesimple, and, before the entry of B his heir, C enters thereon, this is an abatement; but if A be tenant for life, with remainder to B in fee-fimple, and, after the death of A, C enters, this is an intrufion. Alfo if A be tenant for life on lease from B, or his ancestors, or be tenant by the curtesy, or in dower, the reverfion being vefted in B; and after the death of A, C enters and keeps B out of poffeffion, this is likewife an intrufion. So that an intrufion is always immediately confequent upon the determination of a particular eftate; an abatement is always confequent upon the defcent or devise of an estate in fee-fimple. And in either cafe the injury is equally great to him whose poffeffion is defeated by this unlawful occupancy.

3. THE third fpecies of injury by oufter, or privation of the freehold, is by diffeifin. Diffeifin is a wrongful putting out of him that is feifed of the freehold ". The two former fpecies of injury were by a wrongful entry where the poffeffion was vacant; but this is an attack upon him who is in actual poffeffion, and turning him out of it. Thofe were an ouster from a freehold in law; this is an oufter from a freehold in deed. Diffeifin may be effected either in corporeal inheritances,

• Co. Litt. 277. F.N.B. 203, 204.

d Co. Litt. 277.

or