EJECTMENT (Lat. e, out of, jacere, to throw, cast). A form of action by which possessory titles to corp9real hereditaments may be tried and possession obtained.
A form of action which lies to regain the possession of real property, with damages for the unlawful detention.
In its origin, during the reign of Edw. III., this action was an action of trespass which lay for a tenant for years, to recover damages against a. per son who had ousted him of his -possession without right. To the judgment for.damages the courts soon added a judgment for possession, upon which the plaintiff became entitled to a writ of possession. The action of tie ejection jirmce (q. v.), was framed to meet the case of the termor, and just at the close of the middle ages it was held that under it he could recover his term. As to its history see 2 Poll. & Maitl. 105. As the disadvantages of real actions as a means of recovering land for the benefit of the real owner from tile possession of one who held then without title became a serious obstacle to their use, this form of action was taken advantage of by Ch. J. Rolle to accomplish the same result. In the original action, the plaintiff had been oblig ed tO prove a lease from the person shown to have title, an entry under the lease, and an ouster by some third person. The modified' action as sanc tioned by Rolle was brought by a fictitious person as lessee against another fictitious person (the cas ual ejector) alleged to have committed the ouster. Service was made upon the tenant In possession, with a notice annexed from the casual ejector to ap pear and defend. , If the. tenant failed to do this, judgment was given by default and the claimant put in possession. If he appear; he was allowed to defend only by Into the consent rule, by which he confessed the fictitious and oyster to have been made, leaving only the title fn question. The tenant by a subsequent statute was obliged, under heavy penalties, to give notice to his lessor of the pendency of the action.
The action has been superseded in England under the Common Law Procedure Act (1852 §§ 170-220) by a writ, in a prescribed form, addressed, on the claimant's part, to the person or persons in posses sion, by name, and generally "to all persons enti tled to defend the possession" of the premises there in described ; commanding such of them as deny the claimant's title to appear in court and defend the possession of the property. Not only the person to whom the writ is directed, but any other person (on filing an affidavit that he or his tenant Is in posses sion, and obtaining the leave of the court or a judge), is allowed to appear and defend.
lu England, since the Judicature Act, ejectment .has given place to a new action for the recovery of land.
Ejectment has been materially modified in many of the states, though still retaining the name ; but is retained in its original form in others, and In the United States courts for those states in which it existed when the circuit courts were organized.
In some of the states it has never been in use. See 8 Bla. Com. 198.
The action lies for the recovery of cor poreal bereditaments only ; Carmalt v. Platt, 7 Watts (Pa.) 318 ; People v. Mauran, 5 Denio (N. Y.) 389; including a room in a house ; White v. White, 16 N. J. L. 202, 31, Am. Dec. 232; upon which there may have been an entry and of which the sheriff can deliver possession to the plaintiff ; Jackson v. Buel, 9 Johns. (N. Y.) 298; Nichols v. Lewis, 15 Conn. 137; and not for incorpo real hereditaments ; Den v. Craig, 15 N. J. L. 191; Parker v. Packing Co., 17 Or. 510, 21 Pac. 822, 5 L. R. A. 61; or rights of dow er; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167, 8 Am. Dec. 378; Jones v. Hollopeter, 10 S. & R. (Pa.) 326 ; or a right of way ; Taylor v. Gladwin, 40 Mich. 232 ; or a rent reserved; Van Rensselaer v. Hayes, 5 Denio (N. Y.) 477 ; or for an easement to use land for a public park ; Canton Co. of Baltimore v. City of Baltimore, 106 Md. 69, 66 Atl. 679, 67 Atl. 274, 11 L. R. A. ('N. S.) 129 ; or to put the public in possession of land appro priated for streets ; Bay County v. Bradley, 39 Mich. 163, 33 Am. Rep. 367; City of Ra cine v. Crotsenberg, 61 Wis. 481, 21 N. W. 520, 50 Am. Rep. 149 ; or of an ocean beach ; Trustees of the Freeholders and Commonalty of Southampton v. Betts, 163 N. Y. 454, 57 N. E. 762. Ejectment may be maintained for the possession of a street dedicated to thee, public use ; City of Eureka, v. Armstrong, 83 ' Cal. 623, '22 Pac. 928, 23 Pac. 1085; City and County of San Francisco v. Grote, 120 Cal. 59, 52 Pac. 127, 41 L. R. A. 335, 65 Am. St. Rep. 155. So in Village of Lee v. Harris, 206 Ill. 428, 69 N. E. 230, 99 Am. St. Rep. 176; French v. Robb, 67 N. J. L. 260, 51 AU. 509, 57 L. R. A. 956, 91 Am. St. Rep. 433 ; City of Winona v. Huff, 11 Minn. 119 (Gil. 24). It is said that the right to the pos session, use and control of highways is pri marily in the state, and that the state, hav ing by express grants vested, in the cities and villages of the state the possession, use and control of their streets and alleys, the right of possession, use and control is re garded as a legal ancl not a mere equitable right, and that In that view, no reason ex ists why the action of ejectment may not be maintained, though the city or village had not the legal title ; Village of Lee v. Harris, 206 Ill. 428, 69 N. E. 230, 99 Am. St. Rep. 176; and see City of Cleveland v. R. Co.; 93 Fed. 113 (reversed on other grounds in City of Cleveland v. R. Co., 147 Fed. 171, 77 C. C. A. 467, holding that ejectment will lie by a city for the recovery of possession of its streets, though the effect of the dedi cation was to give the city only an easement.