Viii.—: Wrongs to Easements, etc.

Violation of incorporeal rights. Easements and other incorporeal rights in property, “rather a fringe to property than property itself” as they have been ingeniously called, are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled: “a man who has used a way ten years without title cannot sue even a stranger for stopping it”. The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the “fringe” is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage; the action was on the case under the old forms of pleading, since trespass was technically impossible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff’s option.

To consider what amounts to the disturbance of rights in re aliena is in effect to consider the nature and extent of the rights themselves, and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given.

Franchises and incorporeal rights of the like nature, as patent and copyrights, present something more akin to possession, for their essence is exclusiveness; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. “Trespass lies for breaking and entering a several fishery, though no fish are taken.” And so it has always been held of a free warren. But the same remark applies; in almost every disputed case the question is of defining the right itself, or the conditions of the right; and de facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title.