So far as we have gone, we have found that, wherever [381] one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance.  This identification has been seen as it has been consciously worked out in the creation of the executor, whose entire status is governed by it.  It has been seen still consciously applied in the narrower sphere of the heir.  It has been found hidden at the root of the relation between buyer and seller in two cases at least, prescription and warranty, when the history of that relation is opened to a sufficient depth.

But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which the transfer of rights takes place upon a wholly different plan.  In explaining the succession which is worked out between buyer and seller for the purpose of creating a prescriptive right, such as a right of way over neighboring land to the land bought and sold, it was shown that one who, instead of purchasing the land, had wrongfully possessed himself of it by force, would not be treated as a successor, and would get no benefit from the previous use of the way by his disseisee.  But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation.  If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner’s rights would not prevail.  The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected [382] in his use of the way.  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.