" /3/
The chief variation from this view is that of Windscheid, a
writer now in vogue. He prefers the other branch of the
declaration in the Bill of Rights. He thinks that the protection
to possession stands on the same grounds as protection against
injuria, that every one is the equal of every other in the state,
and that no one shall raise himself over the other. /4/ Ihering,
to be sure, a man of genius, took an independent start, and said
that possession is ownership on the defensive; and that, in favor
of the owner, he who is exercising ownership in fact (i. e. the
possessor) is freed from the necessity of proving title against
one who is in an unlawful position. But to this it was well
answered by Bruns, in his later work, that it assumes the title
of disseisors to be generally worse than that of disseisees,
which cannot be taken for granted, and which probably is not true
in fact. /5/
It follows from the Kantian doctrine, that a man in possession is
to be confirmed and maintained in it until he is put out by an
action brought for the purpose. Perhaps [209] another fact
besides those which have been mentioned has influenced this
reasoning, and that is the accurate division between possessory
and petitory actions or defences in Continental procedure.
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