This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
One who holds land as tenant of another has the possession of the land, unless he has divested himself of the possession by creating a subtenancy,3 in which case, applying the same rule, the subtenant has the possession.
Possession involves not only the exercise of acts of ownership over the land, but also. the exclusion of the exorcise of such acts by others.4 That is, possession is necessarily exclusive, the only case in which two or more persons can at the same time be in possession of one piece of land being when they are co-owners5 and in such case there are not two separate possessions, but rather a single possession, that is, as stated by Black-stone, a unity of possession.6 Since, then, possession is necessarily exclusive, statements that the tenant has possession and that he has exclusive possession may be regarded as equivalent.
93. Bishop of Bath's Case, 6 Coke 35; Eubank v. May & Thomas Hardware Co., 105 Ala. 269, 17 So 109.
94. Co. Litt. 45b.
95. Bishop of Bath's Case, 6 Coke 35; Say v. Smith, Plowd. 273; Barrett v. Johnson, 2 Ind. App. 25, 27 N. E. 983.
96. That a lease to endure for so many years as A shall live is not a lease for years see Co. Litt 45b; Sheppard's Touchstone, 275.
97. Bac. Abr., tit. Leases (L3).
98. Melhop v. Meinhart, 70 la. 685, 28 N. W. 545.
99. Lea v. Hernandez, 10 Tex. 137.
1. Post Sec. 92.
2. Post Sec. 621(e).
3. Post Sec. 55.
The principle that the tenant has the possession of the land applies as against his landlord as well as against third persons, and consequently an unauthorized entry by the landlord renders the latter liable to an action of trespass quare clausum fregit, or its statutory equivalent, at the suit of the tenant.7 And since the latter, that is, the lessee or other person claiming under the lease, is entitled to the possession as against the landlord, he may maintain ejectment against the latter if excluded by him from the possession8 unless he has made a sublease, thereby putting the right of possession in another.9
Although the landlord has ordinarily no right to enter upon the leased premises, the law recognizes such a right in him for limited purposes, as to demand rent, to levy a distress, or to comply with police or sanitary regulations10 and occasionally the instrument of lease itself contains a license to the landlord to enter upon the premises for some particular purpose, as to make repairs. Or such a license may be given without the use of any writing, either at the time of the making of the lease or subsequently thereto.11
4. Lightwood, Possession of Land, 14; Pollock & Wright, Possession, 21.
5. Post chapter VII (Co-Ownership).
6. 2 Blackst. Comm. 180, 191.
7. Schwartz v. McQuaid, 214 111. 357, 105 Am. St. Rep. 112, 73 N E. 582; Dickinson v. Goodspeed, 62 Mass. (8 Cush.) 119; Teagar-den v. McLaughlin, 86 Ind. 476, 44 Am. Rep. 332; McGee v. Gibson, 41 Ky. (2 B. Mon.) 353; State v. De Baillon, 113 La. 572, 37 So. 481; Barneycastle v. Walker, 92
N. C. 198: Stanton v. Lapp, 113 Md. 324, 77 Atl. 672.
8. Tennessee & C. R. Co. v. East Alabama Ry. Co., 75 Ala. 516, 51 Am. Rep. 475; Olendorf v. Cook, 1 Lans. (N. Y.) 37; Cooper v. Gordon, 37 N. D. 247, 164 N. W. 21; Karns v. Tanner, 66 Pa. St. 297; Feret v. Hill, 15 C. B. 207.
9. Austin v. Kimball, 167 Mass. 300, 45 N. E. 627.
10. 1 Tiffany, Landlord & Ten ant, Sec. 3b (2).