Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
In the thirteenth century Bracton wrote (632):
" [E]veryone who is in possession, though he has no right, has a greater right [than] one who is out of possession and has no right".
It is said that possession is the root of title (633). To understand this statement it is necessary to have regard to the history and development of actions for the recovery of land. In the present context, it is enough to recall that through the seventeenth, eighteenth and nineteenth centuries ejectment became the most popular action for the recovery of interests in land - both leasehold and freehold (634). And despite its abolition in 1852, its principles remain the basis of present actions for the recovery of land (635). It is therefore the focus of the present inquiry, the principles on which it is based being relevant both at the time of the acquisition of the Islands and now. Ejectment was a response to the growing cumbersomeness and inefficiency of the old real actions. The real actions, so named because they provided specific recovery of interests in land, not merely damages (636), emerged in the twelfth and thirteenth centuries. The nature and history of these forms of action are canvassed by Holdsworth (637) and by Pollock and Maitland (638); it is unnecessary to repeat what is said by those writers.