Incorporeal rights divided into affirmative and negative. Things incor to be desig nated ease ments or servitudes. and such exercise stands in the same relation to the actual jus in re, as true possession does to property (d). Incorporeal rights have been divided into two classes, positive or affirmative and negative. The enjoyment or quasi possession of the former class consists in a distinct independent act, and, in relation to these, the juris quasi possessio is acquired by the act which constitutes the right being exercised in fact as a right, and is not founded on every act of user, but only on an user as of right, or an user grounded on juridical conditions and on a kind of necessity, as distinguished from the accidental user in fact (e). In the other class of incorporeal rights, those of a negative character, whoever possesses them may require the owner of property to abstain from some act that, as owner, he would be justified in exercising, and the juris quasi possessio of these may be acquired either by the adverse user of them or by legal title, that is, by resistance to the attempt to obstruct the user or by any juridical proceeding, which, in its form, is capable of transferring the right of easement, whether in the given case it be actually transferred or not (ƒ). Savigny, in his Treatise on the Law of Possession, in poreal, whether relation to things incorporeal designates them by the term easement, using that term, however, in a wider sense than that in which it is used in our law,-and divides them into personal easements and real easements or easements appurtenant; and of the former class he observes that they have this peculiarity, that the enjoyment of them is bound up with the natural possession of the subject itself, as in cases of usus and usufructus ; and of the latter class he observes that they form special exceptions to the general rule respecting property belonging to another; for either the party who possesses the right of easement may himself do something, which (d) Sav. B. i. s. 12, p. 131; B. ii. s. 25, p. 213, by Perry; Bract. Lib. 2, c. 17, s. 2; 3 Rep. 41 b; Co. Litt. 15 b; Cro. Car. 601. (e) Sav. Poss. B. v. ss. 47, 48. (f) Sav. Poss. B. v. s. 48. otherwise would be forbidden him, servitus quæ in patiendo consistit, or the owner must refrain from doing something which otherwise would be lawful to him, servitus quæ in non faciendo consistit. The first kind of easements are called positive or affirmative, the second negative or prohibitory rights. With positive easements, that which may be done by virtue of the easement may be an independent act in itself, and only indirectly relate to the land of another, such as jus itineris; or it may be inseparably connected with the land of another, such as jus tigni immittendi (g). In the Roman law all these easements are designated servitudes, Jus quo res alterius rei vel persona servit (h), or those rights which, as detached portions of property, jura or jura in re, are opposed to property itself, as the totality of real rights (i). It is said, however, that the term servitude is used to express both the right and the obligation; that the term easement generally expresses the right only, and that an easement differs from an obligation, inasmuch as it gives a right over the land of another, while an obligation gives a right only against the owner (k). In reality, however, the term easement, equally with the term servitude, expresses both the right and the obligation, for the easement, as regards the dominant tenement, is a right, and, as regards the servient tenement, is an obligation, and therefore does not differ from, but includes an obligation, though that is the more general term. In these cases, as with possession proper, the acqui- Quasi possessition and continuance of the right depend upon a cor- quired. sion, how acporeal relation jointly with animus. The second of these conditions is to be defined, in compliance with the rule, exactly in the same way, as to all these rights, as with possession itself. Thus no juris quasi possessio (g) Sav. on Poss. B. v. 47, 48. (h) D. 8, s. 1. SS. ed. (i) Sav. Poss. B. i. s. 9. Advantages of. Subjects of here. can be acquired without animus possidendi, and the right of possession never arises upon a mere animus possidendi (1). The right of possession, jus possessionis, also consists in, besides other advantages, the protection given to the mere exercise of property against certain forms of disturbance. These forms of disturbance and that protection may be conceived in a similar manner in relation to those rights also which, as individual elements of property, have been severed from the property itself, jura in re, or things incorporeal (m). The subjects to which the principles of this chapter chiefly have reference are those rights which, as detached portions of property, jura or jura in re, are opposed to property itself as the totality of real rights (n), or things incorporeal, such as those which are the subjects of the acts of the British legislature, the 2 & 3 Will. 4, cc. 71 and 100, as distinguished from the subjects of the act of the same legislature, the 3 & 4 Will. 4, c. 27. The chapters 71 and 100 of 2 & 3 Will. 4, do not, however, embrace advowsons. These are one of subjects of the 3 & 4 Will. 4, c. 27, and to be noticed hereafter. (1) Sav. Poss. B. v. s. 46. supra, p. 71. (n) Sav. Poss. B. i. s. 9. CHAPTER IV. POSSESSION PROPER AND QUASI POSSESSION AND THE POSSESSION, as a condition of fact, in relation to Difference of (a) C. 7, 38, 2. (b) Plowd. 243, 261, 264, 321, 559; Co. Litt. 41 b, 57 b, 90 b, 118 a, 294 b, 344 b; 8 Pri. 73; Possession of law and in deed. The possession of the Crown is of two sorts-in law the Crown-in and in deed; in law, merely by force of law, without office or any other matter of record; in deed, by actual taking by an officer, though without office found (c). Where the possession is in law merely, an inquisition or office is necessary to enable the Crown, either by entry or by action, according to the nature of the case, to acquire the possession in deed; and until office found. the title of the Crown is not of record, and without being of record the Crown cannot transfer, or by mere grant convert into a possession in deed, such possession in law (d). Such offices are of two kinds-one of entitling, the other of instruction (e). The nature of these offices, and in what cases they are and are not necessary, would involve an examination of this abstruse subject too extensive for this work. The learning on this subject will be found in Staundforde (ƒ), and the Reports of Lord Coke and of Plowden (g), and the entire subject will be found fully and ably treated elsewhere (h). How seisin intended, and how affected by entry. Wherever the king is said generally to be seised, it shall be intended a seisin jure corona (i). But whether he be or be not so seised, as his prerogative requires matter of record to bring land to his hands, so it requires matter of record to remove or take it out of him (k); and at common law he could never be put out of possession by the wrongful entry of a subject (1); and against the king there is no tenant at sufferance, but he that so enters or holdeth over is an intruder upon the king (m); (d) 18 Hen. 6, c. 6; Staundf. (e) Puge's case, 5 Rep. 51 b. (g) Page's case; Reynel's case, 485, 486, 488, 489. (h) See Chitty's Prerogatives of the Crown. (i) 7 Mod. 78; Cro. Jac. 248; Skinner, 603; 4 Cl. & F. 548. (k) Plowd. 213, 229, 484, 488; 4 B. & C. 591; 1 Turn. & R. 216. (1) Plowd. 546, 559; Co. Litt. 41b, 57 b, 227 b; 2 Bing. N. C. 196; 1 Jo. & La T. 77. (m) 2 Leon. 206; Co. Litt. 57 b; 1 Jo. & La T. 77. |