But the most important case of the so-called possession of rights
in our law, as in the Roman, occurs with regard to easements. An
easement is capable of possession in a certain sense. A man may
use land in a certain way, with the intent to exclude all others
from using it in any way inconsistent with his own use, but no
further. If this be true possession, however, it is a limited
possession of land, not of a right, as others have shown. But
where an easement has been actually created, whether by deed or
prescription, although it is undoubtedly true that any possessor
of the dominant estate would be protected in its enjoyment, it
has not been so protected in the past on the ground that the
easement was in itself an object of possession, but by the
survival of precedents explained in a later [241] Lecture. Hence,
to test the existence of a mere possession of this sort which the
law will protect, we will take the case of a way used de facto
for four years, but in which no easement has yet been acquired,
and ask whether the possessor of the quasi dominant tenement
would be protected in his use as against third persons. It is
conceivable that he should be, but I believe that he would not.
/2/
The chief objection to the doctrine seems to be, that there is
almost a contradiction between the assertions that one man has a
general power and intent to exclude the world from dealing with
the land, and that another has the power to use it in a
particular way, and to exclude the from interfering with that.
The reconciliation of the two needs somewhat artificial
reasoning. However, it should be borne in mind that the question
in every case is not what was the actual power of the parties
concerned, but what was their manifested power. If the latter
stood thus balanced, the law might recognize a kind of split
possession. 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. Even a
wrongful possessor of a [242] chattel may have full damages for
its conversion by a stranger to the title, or a return of the
specific thing. /1/
Public-domain text, read in full here on John Shaqi.
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