Jus tertii

 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…
 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
 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…
 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.