gous to the right to societary relations | the same supply has been conceded; (ante, § 52), i. e. there is an interest so that a diversion of the water for that the particles of water shall arrive the ordinary commercial or personal uninterruptedly at the premises where use has been justifiable, and only a the owner may take possession of solely malicious use would be actionthem. If he does take such possession, able; this may perhaps be classed the main property-right then attaches; under the principle of Book III, if he does not, it does not. It is like Title C. the money in a possible customer's pocket; the merchant has a societary interest that its course towards him in the customer's hand shall be uninterrupted; if and after it arrives in his hand, his proprietary interest begins. The details of the apportionment of the right as between communal owners belong in the department of Property. § 108. [The main property-right (ante, § 101) does not include streamright as an appurtenant thereto (riparian right); but stream-right is a separate right, acquirable independently by prior appropriation of the flow, to the extent of the flow appropriated.1] This is the law of many Western States, and there supplants the rule of § 107. § 109. Surface Streamless Waters. The right does not include the flow of waters arriving casually from other land by no regular channel. § 110. Subterranean Channel-Waters. The right includes the flow of water in a subterranean channel, in so far as it forms a stream which would be the object of the right if on the surface. § 111. Subterranean Percolating Waters. The right [does not] include[s] the flow of water arriving beneath the premises from other premises by percolation or other interstitial passages.2 Courts and Legislatures here differ. But whenever the right has been recognized, a communal right calling for reasonable apportionment between owners of adjacent premises tapping § 112. Mineral Gas and Oil. The right [does not] include[s] the flow of mineral gas and oil arriving beneath the premises from other premises by percolation or other interstitial passages.3 Courts have usually taken the negative view; but Legislatures have sometimes changed the rule. Where the right is recognized (as it ought to be), its analysis is similar to that of streamright (ante, § 106), i. e. analogous to the right to societary relations.4 of course a communal right, subject Where the right is recognized, it is to reasonable apportionment between adjacent owners; see the note to § 111. § 113. Electricity. The right [does not] include[s] the occurrence of useful electrical effects artificially induced upon premises equipped with instruments which in normal electrical con ditions could be susceptible to such effects.5 This element of the right ought to be recognized, on the foregoing analowould be subject to the limitations gies. But it is a communal right, and mentioned in the note to § 111. The impairment of pipes, etc., by electrolysis would, however, be an ordinary instance of violation of the main property-right. Interference with wireless messages special problem of law therein (that is, falls under the present right; and the apart from the practical problem of identifying the wrongdoer) seems to be that of determining what is a reasonable apportionment of the communal right. Topic 2. Kinds of Harmful Acts violating the Right § 114. Scope of the Interest. The remain in every respect intact and Interest in realty is that the thing shall therefore potentially at the fullest pos 1 Reno S. M. & R. W. v. Stevenson, No. 247. • Acton v. Blundell, No. 248; Meeker v. East Orange, No. 249. Ohio Oil Co. v. Indiana Oil Co., No. 250. 4 Opinion in No. 250, p. 609. • Cumberland T. & T. Co. v. United El. R. Co., No. 251; W. E. B., No. 252. sible service of the owner if and when he may choose to make use of it. Therefore the Right which protects this Interest is a right to exclude other persons from the thing; in particular, that the thing shall not be, at the hands of the obligor, (A) impaired in its materials, or (1) Either of these might occur without the other. E. g. a blast of powder might by concussion ruin a house, without the defendant's intrusion. Or the defendant might enter the house without any conceivable impairment of it. But between these two is included all possible scope of the Property-Right. (2) The Property-Right is essentially a guarantee of the exclusion of other persons from the use or handling of the thing. Its most absolute form amounts to no other than that. The common mode of definition, therefore, as a right of use by the owner himself. is fallacious. Take away the right, and the owner would and could be using it himself, just as well as with the right; unless we add the notion that others are not to interfere or compete in such use, and then that is seen to be the only essential element. Moreover, an owner need not actually make any use of the thing owned. Thus, the exclusion of other persons is the essence of the right. § 115. Kinds of Harmful Acts violating the Right. The harmful acts violating the right are in Anglo-American law not classified according as they consist in (A) an impairment of thing or (B) an intrusion upon it; but according as they consist in (A) a partial impairment or partial intrusion (Trespass, Case); (B) a complete impairment, i. e. destruction, or complete intrusion, i. e. dispossession (Disseisin, Ejectment, Ouster). This classification is an historical tradition; but has commended itself in practical experience. The practical difference in the standpoint of an owner in or out of possession, with regard to the remedies needed, justifies the distinction; a man totally dispossessed has a more urgent need of relief and finds his proof more difficult. § 116. Partial Intrusion or Impairment (Trespass, Case). The right protects against any partial intrusion upon the space of the land or any partial impairment of its material. The wrongful act is termed a Trespass if done directly, or a Trespass on the Case, if done indirectly,3 according to the classification of causes of action (ante, § 6). Whether an intrusion into the airspace above land is a trespass, depends on the scope of the Interest, as governed by the principle of § 102, ante. Impairment of affluent elements (air, water, electricity, etc.) would be regarded as a trespass on the case. § 117. The right protects against the mere intrusion upon or touching of the thing, regardless of the amount of harm done; the right being here a prophylactic one (ante, § 7). (1) In some Courts, the distinction, already noticed for other rights (ante, § 16), is preserved, that for trespass while for trespass on the case a pala mere touching or entry is actionable, pable damage must have been done. It would seem better to assimilate all instances to the trespass rule. (2) For harms to the affluent elements (air, water, etc.), the rule for trespass on the case would probably be applied; except where the harm consists in the pollution of water. 6 (3) Whether separate harms done by a single tortious act give separate causes of action is a question depending on the general principle of § 205, post. 1 Mr. Amos, No. 253; Justice Holmes, No. 254; Mr. Sidgwick, No. 255. 2 Prewitt v. Clayton, No. 260. 3 Year-Book, No. 266; Sir E. Coke, No. 267; Tenant v. Goldwin, No. 268 (mis-called "trespass"). Wilson v. Powder Co., No. 263, declares the distinction immaterial. 4 Ashby v. White, No. 19; Pfeiffer v. Grossman, No. 261; Smith v. Smith, No. 237; Hannabalson v. Sessions, No. 238. 5 Perrins v. Bergen, No. 281. Mason v. Hill, No. 244, at p. 580 (undecided); Webb v. Mfg. Co., No. 246 (contra). § 118. Total Dispossession (Disseisin). The right protects against a total extrusion (ouster) from the premises, done either by the destruction of the premises, or by the intrusion of a person who substitutes his possession for the owner's. Possession and Dispossession are each other's correlatives, and may be defined as follows: (1) Possession is a relation of control of a thing as against other persons. A possession consists of two elements, with reference to the area deemed to will have no effect. (b) For an area constructively possessed by A, the disseisin of B will extend as far as B's acts express a will to have potential control. tion, the controversy usually turning This is the commonest case in litigaon the extent of "color of title," i. e. the area signified by B to be covered by his will to have potential control.2 § 119. Rules dependent on Disseisin as distinguished from Trespass. The rules of law which depend on the distinction between disseisin and trespass are not rules of Tort, but of Property or of Procedure. They are chiefly three. (1) Rules prescribing the Remedy available; (2) Rules for Transfer of Title by Possession; (3) Rules for Amount of Compensation. be possessed, (a) the area actually controlled against others by the bodily force of the person; (b) the area willed by him to be included in his potential control, as expressed in his acts of will. (a) The actual bodily control § 120. Rules for Acquisition of Title extends as far as the force of hands or by Long Possession. A title may be weapons reaches beyond the momen-transferred by possession, i. e. lost by tary position of the possessor. (b) The potential control ("constructive" possession) reaches as far as the terms of his expressed will indicate; the acts of expression consist usually in boundary marks, fences, cultivation, or words of description in deeds of grant used as a source of title. (2) Dispossession is the relation of another person, M, as against the first person A, in respect to destroying control of the thing. It consists also of the two corresponding elements. (a) Actual disseisin consists in displacing A's actual bodily control by a contrary bodily control. It therefore extends no further than such actual control. Hence, (a) For an area actually controlled by A, the disseisin will extend as far as B destroys A's actual control. (a") For an area constructively possessed by A, the disseisin of B will extend as far as B exercises actual control; but no farther.1 (b) Constructive disseisin consists in displacing A's control by a contrary constructive dispossession; the intending dispossessor, however, not being favored by the law. Hence, (b') For an area actually controlled by A, the constructive disseisin of B 1 Clarke v. Courtney, No. 279. 2 Foulke v. Bond, No. 282. 3 School District v. Benson, No. 278. one person and gained by the other, when the premises have been in the other's open, peaceable, and undisputed possession for a period of time. (Prescription, Adverse Possession.3) For this purpose, a disseisin, not a mere trespass, is required. Disseisin being a fact of control (not a crime), and the rule of prescription being intended to protect long possession from dispute, disseisin acquires the title even though the disseisor occupies by honest mistake. § 121. Rules for Amount of Compensation. A trespass is compensated for by reimbursing the value of the actual harm done to the premises; but a disseisin is compensated for by reimbursing additionally the full value of the use (rental value, mesne profits) of the premises, because the disseisee has also lost that benefit in the interim; and in reckoning, it is immaterial that the disseisor has himself not received any money profits during that time, i. e. his possession places on him the risk of the property. § 122. Rules prescribing the Remedy 4 French v. Pearce, No. 280; Perrins v. Bergen, No. 281. 5 French v. Pearce, No. 280. Notes cited to No. 286, p. 660, i. e. the rule is the same, mutatis mutandis, as for conversion of personalty (post, § 137). This available. To settle a dispute of land- mere trespass; nor vice versa. SUB-TITLE (II): PERSONALTY This topic, which in theory falls her is in practice treated in Property law, and raises no questions of principle which affect the principles of Torts; see the Note to § 100, ante. Topic 2. Kinds of Harmful Acts violating the Right The § 126. The right protects against a mere touching of the thing, regardless of the amount of impairment or extent of removal; the right being here a prophylactic one (ante, § 7).* § 123. Scope of the Interest. Interest in personalty is that the thing shall remain in every respect intact and therefore potentially at the fullest possible service of the owner, if and when he may choose to make use of it. Therefore the Right which protects this Interest is a right to exclude other persons from the thing; in particular, that the thing shall not be, at the hands of the obligor, (A) impaired in its materials, or (B) moved from its position. Either of these might occur without the other. Between the two, the entire scope of the Right is included. See Note to § 114, ante. § 124. Kinds of Harmful Acts. The harmful acts violating the right are in Anglo-American Law not classified according as they impair or remove the thing, but according as they consist in (A) a partial impairment or partial removal (Trespass, Case); or, (B) a complete impairment (destruction) or complete removal (disseisin, conversion). See Note to § 114, ante. § 125. Partial Impairment or Removal. The right protects against any impairment or removal of the thing. The wrongful act is termed a Trespass, if done directly, or a Trespass on the Case, if done indirectly,3 according to the classification of causes of action (ante, § 6). § 127. Total Disseisin (Conversion). The right protects against a total dispossession, done either by the destruction of the thing, or by the taking by a person who substitutes his possession for the owner's. § 128. Destruction. A destruction is such an impairment of the thing's material as (1) to destroy its existence or (2) to make it totally useless for the purpose to which it was both inherently adapted and actually intended. (1) If not done directly, however, some Courts would refuse to term it a conversion, applying the trespass analogy, and classing the harm as a tres pass on the case.5 (2) Whether the defendant makes use himself of the thing, or intends to, is immaterial; disseisin being a fact of control, and not a crime. The early and traditional phrase, "convert to his own use," is merely a relic of historical development in procedural forms, and has no longer any meaning. § 129. Dispossession. A dispossession is an act exercising a power over the thing so as virtually to substitute entirely the obligor's for the owner's control. (1) Where the owner is in actual bodily control at the time (ante, § 117), the act of dispossession must amount Potter v. New Haven, No. 284; Messrs. 1 Massey v. Trantham, No. 283; Sedgwick v. Wait, No. 285; LeBlond v. Peshtigo, No. 286. 2 Anon., No. 288. 3 Anon., No. 289. Paul v. Slason, No. 290 (contra). 5 Simmons v. Lillystone, No. 296. Simmons v. Lillystone, No. 296; McPheters v. Page, No. 297. to a physical overthrow of that con- | is a conversion, because it is intrintrol.1 sically an assertion of the fullest control." (2) Where the owner is in constructive possession at the time (ante, § 117), the act of dispossession must amount to an expression of intent to exercise the full control of an owner. This general principle is applied as follows: § 130. Where the thing is at the time on premises possessed by the owner, (1) a partial user of them on the premises, or (2) a prevention of their removal from the premises, is not necessarily a conversion.2 But an entry on the premises, with an act expressing an intent to assume control, if done by an officer of the law, may be a symbolic conversion (corresponding to a symbolic imprisonment, ante, § 24).3 § 131. Where the thing is at the time on premises controlled by a third person, a prohibition to remove them, is not a conversion, because it is not an act of actual control. But it is a conversion, if the prohibition is an exercise of actual control by reason of the third person being an agent of the defendant or otherwise consenting to his orders.5 § 132. Where the thing is not at the time on the owner's premises, but is received from a disseisor and is dealt with only by an act of taking into custody, holding on deposit, or carrying, the act is not a conversion, because it is done intrinsically in subordination to the control of another." But where the act is that of selling or pledging, whether in his own claim of right or as agent for another, the act 1 Fouldes v. Willoughby, No. 298. 2 England v. Cowley, No. 299. 3 Morse v. Hurd, No. 300. 4 Dozier v. Pillot, No. 308. § 133. Where the thing was received by contract or consent on a bailment, an act dealing with it in breach of the contract is not as such a conversion. But any act, contrary to those consented to, is a conversion if it amounts to an exercise of full control such as would be justified only in an owner.8 § 134. Where the thing was received on a bailment or otherwise lawfully, but is now due to be surrendered, and the conversion is said to consist in the withholding of possession, the possessor's act of refusal to surrender, following the owner's demand, is a conversion, subject to the following distinctions: (1) A refusal by a person who has neither actual physical custody, nor power to give orders to the actual custodian, is not a conversion, because it is not an act of control." (2) An unconditional refusal, by one in possession whose right does not entitle him to refuse, or a conditional refusal by one whose right does not entitle him to impose the condition, is a conversion.10 A conditional refusal by a finder or a bailee from a non-owner, is or is not a conversion according to the extent of right which the rule of bailments gives to such a finder or bailee; i. e. he is entitled to impose at least the condition that the claimant offer him some evidence of his right and his identity.11 (3) A demand and refusal are not necessary to make an act of conversion, Baker v. Beers, No. 307; Cernahan v. Chrisler, No. 317; Hamilton v. Hurst, No. 487. Loring v. Mulcahy, No. 301; Edwards v. Express Co., No. 491. 7 Monk v. Graham, No. 488; Swim v. Wilson, No. 489; Stephenson v. Hart, No. 490; Edwards v. Express Co., No. 491; Hollins v. Fowler, No. 492. 8 Powell v. Sadler, No. 302; Laverty v. Snethen, No. 303; Carney v. Rease, No. 304. • Baker v. Beers, No. 307; Dozier v. Pillot, No. 308. 10 Eason v. Newman, No. 305; Isaack v. Clark, No. 306. 11 Green v. Dunn, No. 311; Atchison T. & S. F. R. Co. v. Jordan S. F. Co., No. 312; Sutton v. R. Co., No. 313. |