Jus tertii

u In Gissel v. State, 727 P.2d 1153 (Idaho 1986), Gissel unlawfully harvested
wild rice growing on land jointly owned by the state of Idaho and
the National Forest Service. An Idaho Court convicted Gissel of trespass,
and Idaho officials seized and sold the rice at auction. Because Idaho
had only one half interest in the land, Gissel challenged the state’s
authority to seize, sell, and keep the profits from all of the rice. The Idaho
Supreme Court held that Gissel was entitled to half of the profits
because Idaho did not effectively make the jus tertii argument on
behalf of the federal government, “the Gissels, though trespassers and
without legal title, which title rests with the Forest Service, still by mere
possession have greater rights superior to that of the state.”
 Cont…
u Newcastle-under-Lyme Corporation v. Wolstanton Ltd. [1947] Ch. 92, 106-
108, per Evershed J.); though a reversioner may sue in respect of a nuisance of a
sufficiently permanent character to damage his reversion. It was however established,
in Foster v. Warblington Urban District Council [1906] 1 K.B. 648, that, since jus tertii is not
a defence to an action of nuisance, a person who is in exclusive possession of land may
sue even though he cannot prove title to it. That case was concerned with a nuisance
caused by the discharge of sewage by the defendant council into certain oyster beds.
The plaintiff was an oyster merchant who had for many years been in occupation of the
oyster beds which had been artificially constructed on the foreshore, which belonged
to the lord of the manor. The plaintiff excluded everybody from the oyster beds, and
nobody interfered with his occupation of the oyster beds or his removal and sale of
oysters from them. It was held by the Court of Appeal that he could sue the defendant
Council in nuisance, notwithstanding that he could not prove his title. Stirling L.J. said (at
pp. 673-674):
 Possessory Remedies And Doctrine
Of Jus Terti
u Possessory remedies have been rejected by English law but other provisions have been made
to protect possession, there are three rules in this connection, prior possession is prima facie
proof of title, he who is in possession first in time has a better title than the one who has no
possession, a defendant is always at liberty to rebut that presumption by proving that he has a
better title. A defendant who has violated the possession by the plaintiff is not allowed to set
up the defence of jus tertti, which means that he cannot plead that – though neither the
plaintiff nor he has the title, some third person is the true owner but the plaintiff is not. English
law considers jus tertii as a good defence under the following circumstances,

1) when the defendant defends the action on behalf of and by the authority of the true
owner.
2) When he committed the act he complained of, by the authority of the true owner.
3) When he has already made satisfaction to the true owner by returning the property to him
 Cont…
u The jus tertii principle also extends to criminal law. For example, in Anic,
Stylianou & Suleyman v R, three men were charged with larceny
(among other things) after breaking into a house to steal drugs. The
men argued that they should not be charged with stealing something
which is unlawfully possessed. The court rejected this argument on the
basis that larceny has always been an offence against possession. The
common law has never recognised an absolute right of ownership. The
owner is merely the person who has the best right to possession.
Therefore, a person can be guilty of larceny by stealing from someone
who had stolen the thing from someone else. The right to possess drugs
is limited by statute but the occupant of the house had a better right
to possession than the defendants.