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Updated: May 1, 2025
If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question. There is nothing but the novelty of the proposition which need prevent its being accepted.
But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an easement must still be explained by a reference to the facts mentioned in the Lecture referred to. The consequences attached to possession are substantially those attached to ownership, subject to the question the continuance of possessory rights which I have touched upon above.
He is in of the same fee, or hereditas, which means, as I have shown, that he sustains the same persona. On the other hand, one who wrongfully dispossesses another, a disseisor, gets a different estate, is in of a new fee, although the land is the same; and much technical reasoning is based upon this doctrine.
It is not regarded as issuing out of the land like a rent, so that while a rent binds every one who has the land, no matter how, a disseisor is not bound by the trust. /3/ The case of the lord taking by escheat has been doubted, /4/ and it will be remembered that there is a difference between Bracton and later authors as to whether he comes in as quasi heres or as a stranger.
He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object.
A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor.
A disseisor would get a new and different fee, and would not have the estate of which the rent was part.
The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. /1/ It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff.
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