This rule of law does not
stand on a succession between the wrongful possessor and the
owner, which is out of the question. Neither can it be defended
on the same ground as the protection to the occupation of the
land itself. That ground is that the law defends possession
against everything except a better title. But, as has been said
before, the common law does not recognize possession of a way. A
man who has used a way ten years without title cannot sue even a
stranger for stopping it. He was a trespasser at the beginning,
he is nothing but a trespasser still. There must exist a right
against the servient owner before there is a right against
anybody else. At the same time it is clear that a way is no more
capable of possession because somebody else has a right to it,
than if no one had.
How comes it, then, that one who has neither title nor possession
is so far favored? The answer is to be found, not in reasoning,
but in a failure to reason. In the first Lecture of this course
the thought with which we have to deal was shown in its
theological stage, to borrow Comte's well-known phraseology, as
where an axe was made the object of criminal process; and also in
the metaphysical stage, where the language of personification
alone survived, but survived to cause confusion of reasoning.
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