pollock an essay on possession in the common law 1888

8/3/2019 Pollock an Essay on Possession in the Common Law 1888

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POSSESSIONPOLLOCK AND WRIGHT


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SonbonHENRY FROWDE

MACMILLAN AND CO.


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AN ESSAYONPOSSESSION

IN THE COMMON LAWPARTS I AND II

BYFREDERICK POLLOCK, M.A., Hon. LL.D. Edin.

OP Lincoln's inn, baeeister-at-lawOOKPCS CHRISTI PEOPESSOR OP JUEISPEUDENCE IN THE UNIVERSITY OP OXFOliU

PROEESSOE OP COMMON LAW IN THE INNS OP COURT

PART III

ROBERT SAMUEL WRIGHT, B.C.L.OP THE INNER TEMPLE, BAEEISIEE-AT-LAW

AT THE CLARENDON PRESS1888

\_An rights reserved']


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PREFACEThe want of any systematic account of Possession in

English law-books has often been remarked upon. A fewyears ago, in the course of my work on the law of Torts, Ihad to consider the learning of Trespass, Conversion, andother wrongs to property ; for which purpose it becamenecessary to face the question whether a doctrine of Posses-sion did not exist in an implicit form in our authorities,and if so, what kind of doctrine it was. I then learnt that,several years earlier, Mr. R. S. Wright had been confrontedwith a like problem in a survey of our criminal law, and hadmade a full study of the subject in that connexion. Uponcommunication with Mr. Wright it appeared that he hadcollected his materials in a form nearly ready for publica-tion; and, in the result, the present work was undertaken.

It is a composite, not a joint work. We should havepreferred for many reasons to combine our researches ina single and uniform exposition, but we found that sucha plan would require an amount not only of continuousbut of simultaneous leisure beyond what we could com-mand. Accordingly we have been content to divide thework as it now stands; and, although we have dis-cussed many parts of the subject together, and seen oneanother's contributions in every stage, each of us isalone answerable for that which is ascribed to him onthe title-page. Whatever defects are the necessary con-sequence of this arrangement may be taken as confessed,with the excuse that the substance, be its value more orless, could not have been produced on any other terms.


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VI PREFACE.

This being so, we have not thought it needful to reducethe mechanical details of citation, abbreviation, and thelike, to a complete uniformity throughout the book.Our purpose has been to show that a fairly consistent body

of principles is contained in the English authorities, not toexhibit all the applications of those principles, nor to enteron the comparison of the Common Law with any othersystem. Speaking for myself, I feel that I owe much bothto the classical Roman texts on Possession and to theingenuity of their modern expounders in Germany. ButI have also felt that if there is, as I believe there is, anative doctrine of Possession in our law, the only way tomake it manifest is to state it on its own independentfooting and verify it in its own light. Comparison isprofitable after the several things to be compared havebeen ascertained ; if attempted earlier, it is hazardous atbest.Each of us has been compelled to form and express

his own opinions on difficult and unsettled points. Wecannot expect those opinions to be always accepted bythe reader, but in any case they are not unconsidered.

F. P.LiNCOLK'a Inn, llichaelmns, iS8S.


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TABLE OF CONTENTS.

PAKT I.INTRODVOTION.

SECT.I. First notions .3. Terminology

Bentham's difficulties3. Elementa of defacto possession

Importance of intention and repute4. Possession in law

Separation from de facto possession .5. Rules

FAGEI

46

II13161820

PAET II.OF POSSESSION GENERALLY.

CHAPTER I.The Nature of Possession.

Defacto and legal possession


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VIU CONTENTS.

CHAPTER II.The Transfer of Possession.

SECT. PAGE3. Acquisition and loss of possession . 43

Lawful transfer favoured . . .44Original acquisition . . 45

4. Delivery : as to Land . 47Seisin ... 47Separation of seisin from possession ... . . 49Seisin in law ... . . 50Livery ... . 51Tenants for years and attornment . . 52Livery not symbolic . 53Incorporeal hereditaments 54Statute of Uses . . 56Copyholders . 57

5. Delivery: as to Goods ... 57Bailment and custody . 58Position of servant . jp

6. Partial delivery and so-called symbolic delivery . . 60Some authorities examined 62The question is of real control . . 65Distinctions in bankruptcy 69Delivery of part in name of whole . 70

7. Delivery of goods by attornment . . 71Acceptance and receipt under Statute of Prauds . 7

8. Mistaken delivery . . ... , 759. Change of possession -without consent 77May be rightful, justified, or wrongful . 77

10. Entry or taking under title . . . 78Physical power being equal, title prevails 79Occupation without title . . .80Entry by licence . So

11. Entry or taking under authority of law 81Distress and execution . . 82

12. Taking for true owner's benefit 841 3. Wrongful entry or taking . . . .8414. Ouster from land . . ... 8c

Ambiguous acts . . 8615. Artificial extension of the idea of disseisin 87

Disseisin at election . . . .88Statute of Limitation . . go


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CONTENTS. IX

CHAPTER III.Possession and Title.

SECT. PAGEi6. The rights of possessore .... 91

Distinctions as tojus terlii . 9217. Title by possession . . . , -93

Importance of the principle . . 93Medieval doctrine . . '94Possessory title must be continuous... 97Is valid only against wrongdoers 99

1 8. The effect of mistake on delivery of chattels 1 00Mistalie as to property or interest . loiAs to the thing delivered... . 103As to the person . . 1 06Authorities . . 108Ashwell's case . . logMiddleton's case . 1 1

19. Title to chattels by recapture . . . . 114Limits of and exceptions to the right . . 115

PART III.POSSESSION AND TEESPASS IN RELATION TO THE

LAW or THEFT.BY E. S. WEIGHT.CHAPTER I.

Possession and Trespass generally, in relation to the Lawof Theft.

1.


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CONTENTS.SECT.7- Acquisition by a taking : Trespass .

What is taking......Continuing trespass . . . .

8. Right to possession.....Not generally sufficient to maintain trespass9. Apparent possession .....

Title of possessor against wrongdoer .10. Delivery by or taking" from a trespasser

Semble, not a trespass against true owner .11. Summary.....

PAGE14114414214514514714815'152157

CHAPTER II.Particular Cases.

12.


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CONTENTS. XI

CHAPTER III.The Act and Intention in Theft.

SECT. PAGE19. The act of taking . . . .215

What is a direct taking from the owner's possession . . .215Indirect or constructive taking . . . . . . .216Taldng by consent of a person unable to give consent : servant

:

wife : adultery . . . . . . . . .217Consent neutralised by a))nM_/iraBA' . . . .218No theft where owner consents to part with property . 219Theft by a person during a possession acquired by trespass, but

not originally felonious ... ...221Statutory theft by conversion by a bailee . . . . .222Connivance by the prosecutor . . ... 222

20. Elements oi animiisftirandi . . .... 223Intention of deprival and appropriation . . . .224

(i) As to the character or quality . .... 224(ii) As to the intended finality of the deprival and appropriation . 225

Wrongfulness of the intention. 226(i) As to the knowledge or belief that the proposed disposal of

the thing will be against the owner's will . . . .226(ii) As to the absence of a claim of right . . . . .227(iii) As to lucri causa .228

Special oases. Theft from bailee. Theft by owner. Theftfrom stranger ....... . 228

CHAPTER IV.Things not the Subjects of Theft.

21. Of what things trespass or theft cannot be committed . .230Things part of or affixed to soil 230Animals jflsrae naturae . . . . .231Things not subjects of property . . . . 232Documents of title to realty 233Things of no value .... .... 233Things said to be of base nature 235


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TABLE OF CASES.Aberdeen Arctic Co. v. Sutter, 1 25.Ainslie, re, 127.Allan V. Liverpool, &c,, t.Anoona . Rogers, 1,21, 66, 70.Anderson v. Eadcliffe, 1 2g.Anonymoug, 181.Armory v. Delamirie, 149.Asli V. Dawnay, 82, 144.Asher v. Whitlock, 22, 23, 96, 97.Atkyns (Taylor d.) v. Horde, 90.Attack V. Bramwell, 201.Badkin v. Powell, 151.Baker v. Coombes, 90.Balme v. Hutton, 128, 189.Bamett, Ex parte, 1 1 1

.

Barnett v. Earl of Guildford, 129.Bertie v. Beaumont, 138.Bevil's Ga., 36.Biddulpli V. Atber, 232.Blades v. Higgs, 81, 115,126, 127,159.Board v. Board, 96.Bolton V. L. & Y. R. Co., 70.Boulton V. Jonea, 108.Bourne v. Fosbrooke, i, 9, 148, 151,

199.Bradley v. Copley, 166.Brew V. Haren, 42.Bridges v. Hawkeaworth, 39, 40, 150,

186, 187.Brierly D. Kendall, 166, 199.Bristow V. Cormican, 24, 36.Bryant v. "VVardell, 132, 166.Buckley v. Gross, 99, 150, 213.Burton v. Hughes, 166.Busker v. Thompson, 57.Bushby v. Dixon, 52.Calmady v. Rowe, 34.Carter (Doe d.) v. Barnard, 97.Cartwright v. Green, 109, 205.Castle V. Sworder, 73-Chanel v. Robotham, 234.Chaplin v. Rogers, 64.

Commonwealth o. Hazlewood, 236.Cook V. Rider, 14, 31.Cooper, Ex parte, 74-

V. Chitty, 128, 189.'('. Vesey, 76.V. Willomatt, 132.

Coverdale v. Charlton, i, 35.Cundy v. Lindsay, 108, III.Cusack V. Robinson, 71.Danby v. Tucker, 199.Darby . Boaanquet, 99.Davison v. Gent, 97.Dawes v. Peck, 161.Dixon V. Gayfere, 23, 98.Doe d. Carter v. Barnard, 22, 97, 98.Doe d. Hughes v, Dyeball, 96.

Pritchard v, Jauncey, 96.Smith V. Webber, 23, 96.

V. Reade, 99.Donald . Suckling, 50, 132, 166, 170.Drake, Ex parte, 115.Dunlop V. Lambert, 161.Dunwich (Bailiffs of) v. Sterry, 147,

232.Dutton V. Solomonson, 161.Eardley v. Granville, 1, 49.Edan v. Dudfield, 74.Edwick V. Hawkea, 81.Ellis . Hunt, 63.Elmore . Stone, 64, 72.Elwes V. Brigg Gas Co., 41.Emans v. TurnbuU, 42.Evans v. Elliott, 144.

V. Roberts, 73.

Farina . Home, 73.Farrant v. Thompson, 127.Fenn v. Bittleston, 132, 166, 199, 224.Fennings v. Lord Grenville, 38.Ferguson v. Cristall, 166.Fisher v. Young, 127.Fletcher, .Ei; ^arte, 12.


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TABLE OP CASES. XIUFortli V. Simpson, 214.FouMes V. Willoughby, 224.Fowler v. Down, 167.Gilea v. Grover, 203.Glosse V. Hayman, 138, 140.Glyn Mills & Co. v. E. & W. IndiaDock Co., 1 1 3.

Godts V. Kose, 73.Gordon v. Harper, 127, 145, 166.Gough V. Everard, 65.Graham . Peat, 91.Grice v. Richardson, 73.Hadfield'a Ca., 27, 52, 56.Hannam D. Mockett, 235.Hardman v. Booth, iii, 112.Harper v. Charlesworth, 31, 148.Harris, Mc parte, 69.Harrison v. Blackburn, 56.Harvey v. Brydges, 81.Harvey v. Pocock, 202.Hayne's Ca., 124.Healy v. Thome, 34.Heelis v. Blain, 52.Herlakenden's Ca., 127.Heydon v. Smith, 139.Higgons V. Burton, 1 1 1

.

Hill V. Wilson, 102.Holford V. Bailey, 35.HoUiday v. Hicka, 161.Hopkinson v. Gibson, 138, 139.Horwood V. Pike, 81.Hudson V. Hudson, 127, 188.Hughes (Doe d.) v. Dyeball, 96.Irons V. Smallpiece, 199.Isaack v. Clark, 84, 169, 177.

Jacobs V. Latour, 214.V. Seward, 86, 87.

Jay, Ex parte, 70.Jeffries v. G. W. E. Co., 92, 150.Job V. Potton, 87.Johnson . Barret, I48.

V. Upham, 201.Jones V. Chapman, 24.

V. Williams, 29, 32, 33.

Kemp V. Talk, 70.Keyse v. Powell, 87.

Killarney, The, 114.Kincaid v. Eaton, 41.Kingsford v. Merry, ill.

Ladd V. Thomas, 143,Laird v. Briggs, 169.Leake v. Loveday, 92, 148.Leigh V. Jack, 86.Littledale v. Scaith, 38, 125.L. & B. R. Co. V. Fairclough, 199.London & County Bank v. London &

River Plate Bank, 11;.Lord Advocate v. Blantyre, 33.


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XIV TABLE OF CASES.Reg. i\ Aiokles, i6i, 219.

V. Ashley, 138.R. I. Ashwell, I, 41, log, 110, 144,

159, 207, 210, 211.ti. Aslett, 234.T. Atkinson, 138.u. Attwell, 152.V. Avery, 217* 218.f. Banks, 133, 161.V. Bannen, 233.V. Barnes, 138, 221,V. Bass, 138.V. Bazely, 192.V. Beaman, 138.V. Beecliam, 235.u. Eelstead, 1 66.V. Berry, 217.v. Boulton, 235.V. Braraley, 165, 219, 220, 229.V. Brazier, 133.V. Brooks, 219, 222.V. Brown, 160, 163, 164, 219.V. Brunswick, 166.V. Buokmaster, 220.. Bull, 192.. Bullock, 219.V. Eunkall, 161, 191.I/. Cabbage, 224, 228.V. Cain, 212.V. Campbell, 163, 219, 221.V. Cheeseman, 216.V. Chipchase, 192.V. Cbisser, 140.V. Christian, 163.V. Clarke, 233, 234.V. Clinton, 42, 232..;. Coffin, 186.V. Coleman, 220.B. Cooke, 138, 163, 219, 221.u. Cornish, 133.V. Cory, 232.V. Cotton, 202, 203.V. Cristopher, 184.V. CuUum, 191, 196.r. Dannelly, 222.t. Davies, 206.V. Davis, 112.V. Day, 152.r. Deakins, 139.V. Deiimour, 160.V. Dickinson, 225.

R. c. Dingley, 191.0. Dixon, 182. 184.V. Dudley, 227.V. Dyer, 152.V. Eastall, 203.V. Edwards, 124.. Egginton, 222.V. Essex, 220.V. Featherstone, 217.V. Fitch, 218.V. Fletcher, 133.V. Flowers, no.V. Forsgate, 199.V. Frampton, 1 60.V. Gardner, 164, 234.V. Garrett, 161.V. Gill, 192, 195.V. Glass, 164.V. Glyde, 182, 183.u. Goode, 162, 163.V. Goodenough, 195.V. Green, 138.ti. Guernsey, 233.V. Gumble, loi, 106.I/. Hall, 224, 227.V. Hamilton, 227.I/. Handley, 224.V. Hands, 120, 141.V. Harding, 193.V. Harrison, 217.V. Hart, 161, 234.V. Harvey, 220.v. Hassall, l6o, 161.V. Hawtin, 192.V. Hayne, 124, 199.V. Hayward, 193.u. Headge, 192.V. Heath, 138, 235.V. Heuch, 221.V. Henderson, 222.ti. Hoare, 161, 191.V. Hoatson, 227.17. HoUoway, 226, 227.ti. Howatt, 164.V. Hughes, 199.V. Hutchinson, 138.V. Jackson, 220, 221.V. Jacobs, no.V. Janson, 219.v. Javrett, 191.r. Jenkins, 133, 161, 163, 164.


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TABLE or CASES. XVE. V. Jolmsoii, 137, 140.


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XVI TABLE OP OASES.R. V. Tunnard, 133.

1). Vincent, 205.V. Vyse, 234.V. Waite, 192, 212.V. Walker, 234.V. Wallis, 216.V. Walsh, 139, 165, 191, 192, 235.V. Watson, 138.V. Watta (2 Den.), 164, 193, 197.u. Watts (i Cox), 225.V. Watts (Dears.), 234.v. Webb, 221, 224.V. Webster, 165, 213, 229.u. Wells, 226.V. West, 182, 186.V. Westbeer, 233.V. White (9 C. & P.), 224, 228.u. White (Dears.), 232.V. Wilkins, 138, 152.V. Wilkinson, 165, 229.V. Williams, 222, 227.V. Willis, 212.V. Wilson, 220.V. Woodrow, 114.V. Wright, 195.V. Wynn, 228.V. Wynne, 185, 186, 224.ii. Yates, 234.V. York, 224.

Eichards 1). Jenkins, 82.Ridgway, re, 199.Roberts v. Wyatt, 132, 170.Rochester v, Rochester, 36.Rogers v. Spence, 123.Rooth V. Wilson, 58.Rosevear China Clay Co., Sx parte,

74-Ryall V. Rowles, 69.

Sanders v. Maclean, 67.Sargent v. Morris, 161.

Savage . Walthew, 138.Searby v. Tottenham Ry. Co., 86.Shower v. Pilck, J99.Singleton v. Williamson, 201.Six Carpenters' Ca., The, 144, 178, 202.Smith U.Lloyd, 87.Smiths. Milles, 127, 128, 189, 232.Smith (Doe d.) v. Webber, 23, 96.Spence v. Union Mar. Ins. Co., 213.Stanley . White, 32, 34.Stevenson v. Newnham, 202.Swans, Ca. of, 126.

Tancred v. Leyland, 202.Tassell v. Cooper, 161.Taylor d., Atkyns v. Horde, 90.Taylor v. Parry, 34.Tharpe v. Stallwood, 127, 128, 147.Trustees' Agency Co. v. Short, 87.Ward, Sx parte, 69.Ward V. Turner, 62.

V. Macauley, 166.Waud V. Audland, 199.West V. Skip, 69.

0. Nibba, 82.Wharton v. Naylor, 203.Wheeler v. Montefiore, 56.White V. Bailey, 56.

V. Crisp, 1 24.V. Garden, 204, 220.

Wilbraham v. Snow, 1 2 2, 203.Williams v. Millington, 162.Winder, Sx parte, 97.Winter v. Winter, 199.Winterbourne v. Morgan, 143.Woadson v, Nawton, 149.Wrotesley v. Adams, 48.Yorke v. Greenaugh, 151.Young V. Hichens, 37, 125.


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PART I.INTRODUCTION.

1. First Notions.Possession is a term of common occurrence and no mean

significance in the law. It imports something which at anearlier time constantly made the difference between havingthe benefit of prompt and effectual remedies, or being leftwith cumbrous and doubtful ones; which in modern timeshas constantly determined and often may still determine theexistence or non-existence of a right to restrain acts of inter-ference with property/ the relative priority of the claims ofcompeting creditors/ or the incidence of public burdens ; ^ andwhich for centuries has been, and is still capable of being/of critical importance in defining the boundary betweencivil wrongs and crimes. Yet, as the name of Possession isin these and other ways one of the most important in ourbooks, so it is one of the most ambiguous.^ Its legal senses(for they are several) overlap the popular sense, and even thepopular sense includes the assumption of matters of factwhich are not always easy to verify. In common speech aman is said to possess or to be in possession of anything ofwhich he has the apparent control, or from the use of whichhe has the apparent power of exeludiag others. We shall

' Coverdale r. Charlton, 187S, 4 Q. B. Div. 104; Eardleyu. Grama] le, 1876,3 Ch. D. 826.

^ Anoona v. Rogers, 1876, i Ex. Div. 385.^ Allan v. Liverpool, &o., 1874, L. K. g Q. B. 180, 191. Cp. the Public

Health Act, 1875, s. 257.* R. V. Aahwell, 18S5, 16 Q. B. D. 190." Erie C.J. in Bourne v. Fosbrooke (1865), 15 C. B. N. S. 515 ; 34 L. J. C. P.

164, 167; Fry L.J. in Lyell v. Kennedy (1887), 18 Q. B. Div. 796, S13.- B


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2 INTRODUCTION. Part I.have to consider hereafter whether the measure of apparentpower depends merely on physical facts, or is liable to beaffected by the appearance or reputation of right. Tor thepresent we start with this, that any of the usual outwardmarks of ownership may suffice, in the absence of manifestpower in some one else, to denote as having possession theperson to whom they attach. Law takes this popular con-ception as a provisional groundwork, and builds up on itthe notion of possession in a technical sense, as a definitelegal relation to something capable of having an owner,which relation is distinct and separable both from real andfrom apparent ownership, though often concurrent with oneor both of them. Possession, again, whether in the popularor in the legal sense, does not necessarily concur with title.No plain man would hesitate to say that a squatter or athief possesses himself of the land occupied or the goodscarried away; and the law says so too. But the trueowner, "or some one claiming through him, ought to havethe physical control of whatever has been wrongfully occu-pied, and will recover it if the law be fulfilled. In otherwords, the true owner or his delegate is entitled to possessionhe is not possessor, but he ought to be. The temptation isgreat to speak of him as the rightful possessor, or to slidefrom the idea of right to possession into that of right ofpossession ; and even the language of lawyers has not escapedit. Again, a man who has possession with the true owner'sconsent may be bound to restore it on demand ; here too theright of resuming possession is apt to be confounded withpossession itself, or with that right to possession which thepossessor at the will of another has until that other^s willis determined. On the other hand, since the person entitledto possess is generally (though not always) the owner, and inany case is he whom wrongful possessors have most to fear,a right to possess, even a limited, conditional, or deferredright, is no less apt to be confounded with that moregeneral right to deal with the possession which coincides


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r. FIRST NOTIONS. 3with ownership. The various and complex combinations ofthese elements make it exceedingly difhcult to obtain a con-sistent doctrine, and almost impossible to preserve a consistentterminology. And, as if the inherent difficulties were notenough, others have been added in the course of modernlegislation by making various effects and incidents of pos-session depend, for particular purposes, on the presence orabsence of further particular conditions; and this withoutdeclaring (except in some cases by the addition of epithetshaving no settled meaning in law, and themselves requiringinterpretation) in which or in how many of its more or lessauthenticated senses the word Possession was used.Why the law should ascribe possession to wrongdoers maybe difficult to explain completely. It is one thing to recognizethe fact that physical control of things of value is oftenwrongfully acquired, another thing to attach definite legalincidents, nay rights which ultimately may ripen into in-disputable ownership, to such facts when ascertained. Inmany cases the law does take the latter course, and hasdone so always and everywhere since law has been a science.The truth is that many reasons of convenience concur tooutweigh the apparent anomaly, and of these sometimes oneand sometimes another may have in fact been the decisivereason in virtue of historical conditions, or may be regardedas decisive according to the individual genius of this or thatphilosophic student. The most obvious of them, from thepoint of view of our own time, is perhaps that in a settledand industrial state some amount of genuine doubt as toownership and title must unavoidably follow upon the com-plexity of men's affairs ; that protection must in some measurebe given to persons dealing in good faith on the strength ofapparently lawful title, and to those who may afterwards dealwith and claim through such persons ; and that such pro-tection cannot be given effectually to the innocent withoutalso protecting some who are not innocent. Further, it canbe and has been maintained that on attentive examination theB 3


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4 INTEODUCTION. Pai-t I.seeming anomaly will be found indispensable for the adequateprotection of true ownership itself. Another element whichno doubt has been important in the earlier historical develop-ment of the law^ and to which some great authorities haveattached exclusive or all but exclusive importance in modemtimeSj is the interest of public peace and order. Men willdefend that which they deem their own even if the law pur-ports to forbid them ; and the wholesale allowance of redressby private force, or exposure of wrongful possessors to dis-possession by newcomers having no better right, would createmore and greater evils than any that could be thus remedied orprevented. But in forbidding existing relations of persons tothings to be disturbed by private violence, or acts likely toprovoke violence, the law must needs, at that stage, protectthe unjust with the just. If the ultimate justice of thematter were always manifest at first sight, there would be nocall for provisional protection. It is also said that possessionis in a normal state of things the outward sign of ownershipor title, and therefore the possessor is presumed to be or torepresent the true owner; some have gone so far as to saythat, apart from this, the mere vsdll of a possessor to holdthe object for himself is in the eye of the law relativelymeritorious as against any one not showing a better title.However, the comparative worth of the philosophical orsemi-philosophical theories of Possession cannot be weighedto much purpose until one has mastered in some detail theactual contents of the law.^

2. Terminology

.

It need not give occasion for surprise that we fail to findin our books any title of Possession eo nomine. First, thehistorical categories of the Common Law have oftener been

' The speculative literature of the subject, which for modern readers may bepaid to date from Savigny, shows no sign of coming to an end. The best way ofgetting on the track of it, if desired, is to consult the latest current edition ofa good German book of ' Pandektemecht,' such as Arndts. And see Holmes,The Common Law, Lect. vi.


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2. TERMINOLOGY. 5determined by procedure and remedies than by rights. Ourold authors looked mainly to the forms of action, and thoughtless, for example, of the essential differences between breach ofcontract and defamation than of the formal similarity of theremedy as being for either an action on the case. A doctrineof possession exists, but it was developed by means ofvarious remedies for wrongs to possessory rights, and was longthought of wholly or mainly as determining the conditions ofthose remedies. Trespass, a wrong to possessors ^ of land orgoods; Conversion, a wrong affecting possessory rights ingoods only, and best known under the catch-word of Trover,the specialized action on the case which was its appropriateremedy; Theft or Larceny, a particular kind of trespass togoods which by virtue of the trespasser's intent becomescriminally punishable ; these and such as these, not the termsof general analysis, are the clues to English authority. Forthe special applications of the doctrine to land we may add thetitles of Ejectment, Landlord and Tenant, and the Statutesof Limitation; and there is much that cannot be rightlyunderstood without going back to the all but forgottenlearning of Disseisin. Secondly, the learning of possessiondisguised itself by its very importance. The Common Lawnever had any adequate process in the case of land, or anyprocess at all in the case of goods, for the vindication ofownership pure and simple. So feeble and precarious wasproperty without possession, or rather without possessoryremedies, in the eyes of medieval lawyers, that Possessionlargely usurped not only the substance bjit_the name ofProperty ; ^ and when distinction became necessary in moderntimes, the clumsy term 'special property" was employed todenote the rights of a possessor not being owner.

Thirdly, there are many things material to be knownwith reference to what may be called the physical basis ofthe law of Possessionthings of which the law takes notice,

1 See 15 H. Vn. 3 a.' In Brooke's Abridgment, 'Propertie et proprietate probanda,' the two

conceptions are not in any way discriminated.


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6 INTltODUCTION. Part I.

and whieli to a certain extent are defined by authoritywhich yet do not come within the legal definitions of par-ticular estates and interests, and are relegated in our roughworking classification to the head of Evidence^ that generalrefuge of things otherwise unclassified ; and they have tobe sought out, rather by the practising lawyer-'s instinctthan by any certain method, in the various places wherethey lurk latitant et discwrruntamong the miscellaneousinformation of Nisi Prius and Crown Law treatises. Thematerial being thus scattered, and the subject by no meansfree from real intrinsic perplexity, it is not surprising thatthe perplexity should have been regarded as almost hopeless.

Sir E. Perry, by way of introduction to his translation of Savignyon Possession, cites the following passage from Bentham as tophysical possession :

' What is it to possess 1 This appears a very simple question :there is none more difficult of resolution, and it is in vain that itssolution is sought for in books of law : the difficulty has not evenbeen perceived. It is not, however, a vain speculation ofmetaphysics. Every thing which is most precious to a man maydepend upon this question :his property, his liberty, his honour,and even his life. Indeed, in defence of my possession, I maylawfully strike, wound, and even kill if necessary. But was thething in my possession ? If the law trace no line of demarcation,if it decide not what is possession and what is not, I may, whilstacting with the best intentions, find myself guilty of the greatestcrime, and what I thought was legitimate defence may, in theopinion of the judge, be robbery and murder.

' This, then, is a matter which ought to be investigated in everycode, but it has not been done in any.

' To prevent perpetual equivocation, it is necessary carefully todistinguish leiween physical and legal possession. We here referto the former : it does not suppose any law, it existed before thei'ewere laws; it is the possession of the subject itself, whether a thingor the service of man. Legal possession is altogether the work ofthe law ; it is the possession of the right over a thing or over the.services of man. To have physical possession of a thing is to havea certain relation with that thing, of which, if it please the legislator,


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2. TEEMINOLOGY. 7the existence may hold the place of an investitive event, for thepurpose of giving commencement to certain rights over that thing.To have legal possession of a thing is already to have certainrights over that thing, whether by reason of physical possession orotherwise.

' I have said, that to have physical possession of a thing, is tohave a certain relation with that thing. This was all that I havesaid, this is all that I could say at first. What is that relation 1It is here that the difficulty begins.

' To define possession is to recall the image which presentsitself to the mind when it is necessary to decide between two parties,which is in possession of a thing and which is not. But if thisimage be different with different men, if many do not form anysuch image, or if they form a different one or different occasions,how shall a definition be found to fix an image so uncertain andvariable 1

' The idea of possession will be different according to the natureof the subject, according as it respects things or the services ofman, or fictitious entities, as parentage, privilege, exemption fromservices, &c.

' The idea will be different according as it refers to thingsmoveable or immoveable. How many questions are necessary fordetermining what constitutes a building, a lodging. Must it befactitious ? but a natural cavern may serve for a dwelling,mustit be immoveable 1 but a coach, in which one dwells in journeying,a ship, are not immoveables? But this land, this building,whatis to be done that it may be possessed 1 Is it actual occupation 1^-is it the habit of possessing iti is it facility of possessing withoutopposition, and in spite of opposition itself 1

' Other difficulties : In reference to exclusive possession, orpossession in common in reference to possession by an individual,or by everybody.

' Ulterior difficulties : In reference to possession by one's self, orpossession by another. You are in the habit of occupying thismanufactory, you alone occupy it at this hour : I say you are onlymy manager, you pretend to be my lessee : A creditor contendsthat you are my partner. This being the case, are you, or I, orare both, in possession of the manufactory 1

'A street porter enters an inn, puts down his bundle upon thetable, and goes out. One person puts his hand upon the bundle toexamine it; and another puts his to carry it away, saying It is mine.


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8 INTROnUCTION. Part I.The innkeeper runs to claim it, in opposition to them both ; theporter returns or does not return. Of these four men, which is inpossession of the bundle 1

' In the house in which I dwell with my family is an escritoire,usually occupied by my clerk, and what belongs to him : in thisescritoire there is placed a locked box belonging to my son ; in thisbox he has deposited a purse entrusted to him by a friend. Inwhose possession is the bag,'in mine, in my clerk's, in my son's,or his friend's 1 It is possible to double or triple the number ofthese degrees ; the question may be complicated at pleasure.

' How shall these problems be resolved 1' Consult firstly primitive utility, and if it be found neuter,

indifferent, then follow the popular ideas ; collect them when theyhave decided, fix them when they are wavering, supply them whenthey are wanting; but by one method or another resolve thesesubtilties, or, what is better, prevent the necessity of recurring tothem. Instead of the thorny question of possession, substitute\that of honest intention, which is more simple.'(General View ofa Complete Code, p. i88 of vol. iii. of the collected works.)On this it is firstly to be observed that although Benthamproposes to ask these questions with reference to physical possessionas distinguished from legal possession, the cpestions have nosignificance and are incapable of being answered for any purpose oflaw except with reference to possession in the legal sense, and thatthe rules of law for the purposes of which he seeks an answer dorefer to possession in the legal sense. In fact, Bentham lets himselfslide from the 'natural' into the 'civil' meaning of possession.Secondly, it may be worth while to suggest the answers which theEnglish common law would give in each of Bentham's instances.The case of the manufactory is one of an immoveable thing, andhappens to be a much simpler one than many that might be put.The -occupier, if he is my tenant, has the possession. If he ismerely my servant, I have the possession, but he may defend iton my behalf. If he is my partner, we are in joint possession,unless I have given him a separate tenancy. It is a previousquestion of fact whether he is tenant, servant, or partner.

' Sic in the English edition. The French text, in Trait^s de Legislation,ed. Dumont, iii. 338, has ' Dans ce secriStaire se trouve pour le moment unecassette k seiTure, occup^e habituellement par mon fils ; dans oette cassette,une bague confii^e h: sa garde par un ami. Lequel de nous est en possession dela bague, moi, mon clerc, mon ills, ou son ami?'


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2. TEEMINOLOGY. 9In the case of the inn, the innkeeper has the possession of the

hundle in the first instance as the bailee of his guest. Thestrangers do not, so long as they merely touch it, acquire anypossession, but if one of them lifted it with an intention to excludethe owner, or all persons but himself, he would acquire thepossession. The innkeeper's running to claim it would make nodifference unless he re-took it or the taker relinquished it. Theporter's return while the possession is with the innkeeper will, ifthe innkeeper consents, determine the innkeeper's possessionbut the porter's return when the bundle has been lifted and isretained by the stranger will make no difference unless he retakesor the taker relinquishes the possession of the bundle. In the caseof the escritoire more information is required. If it is moveablefurniture, in a room let to the clerk, it is in his possession (Meeres'Case, 1669; I Show. 50), and so are all the things in it. If itis in a part of the house which is in my occupation, it is in mypossession and he has merely a licence to use it; the things in itare bailed to me and in my possession when the clerk is absentbut when he is present they are in his possession unless I preventhis access to them. (Cp. however Bourne v. Fosbrooke, 1865, 18C. B. N. S. 515; 34 L. J. C. P. 164, where 'possession' is used byErie C.J. in the sense assigned below to ' right to possession,' andthe clerk even in his absence is said to have possession).The definition of possession has varied even in this country

at different times. At one time the supposed rules of theRoman law as to ' possession ' seem to have been applied, anda depositary, a mandatary, and other kinds of bailees (see inI Hawk. 33. lo) have been treated as having no possession asagainst the bailor; and on the other hand, in Staundford's time(P. C. c. 15, fo. 25 a, ed. 1567) a servant entrusted by his masterwith money for delivery was held to have the possession at commonlaw : cp. the statute 21 Hen. VIII. c. 7. It was thought that themaster retained possession only so long as the servant was in hishouse or accompanying him. The contrary rule, though settled inthe modem authorities, is certainly somewhat of an anomaly in theCommon Law. It is worth notice that Staundford cites the RomanLaw as to theft by bailees by way of contrast, with the remarktliat ' in les cases avant dites le ley de cest realme est plus favorableque nest le ley civil.' Among the apocryphal feats of justiceascribed to King Alfred in the ' Mirror of Justices' is that ' hehanged "Wolmer because he judged Graunt to death by colour of


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10 INTRODUCTION. Part I.a larcine of a tiling wliicli he liad received by title of baylement(p. 242, ed. 1646).

It has constantly been asked : Is Possession a matter offact or of right ? Bentham and others have made the wantof a plain answer a reproach to the law. But in truth nosimple answer can be given to such a question^ for all its termsare complex and need to be analysed. Every legal relation isor may be an affair both of facts and of right : there are not twoseparate and incommunicable spheres, the one of fact and theother of right. Facts have no importance for the lawyerunless and until they appear to be, directly or indirectly, theconditions of legal results, of rights which can be claimedand of duties which can be enforced. Rights cannot beestablished or enforced unless and until the existence of therequisite facts is recognized. Again, the recognition of thosefacts is not always a direct or simple matter. To some extenttheir existence must be inferred rather than observed, and thisindependently of all grounds of dispute in relation to thecredibility or accuracy of human testimony. The lines andlimits of permissible inference have to be considered, and intime become subjects of authoritative definition. Apply thesegeneral notions to the matter in hand, and it will be seen that,even after we have fixed the meaning of the term Possession,we cannot completely separate, though we may and mustdistinguish, the elements of fact and of law in a given ease.Whether legal possession shall follow physical possession ornot is a point of law. Whether there exists, at the date inquestion, between a given person and a given thing, therelation of physical possession or occupation, is wholly ormainly a matter of fact. But this in turn may be disputed,and then it must be settled whether the specific facts admittedor proved will suffice to establish the existence of the defacto relation of control or apparent dominion required as thefoundation of the alleged right : and here we get the kindof questions said expressively if not with dialectic exactnessto be of mixed law and fact.


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3- ELEMENTS OF DE FACTO POSSESSION". 11

3. Pl/ysical and mental elements in de i&cto possession.

At first sight it may seem that the relation of oectipationor control on which the legal conception of Possession isnormally based, and which is the commencement of ownershipill those things which the law regards as ownerless untilcaptured or otherwise physically appropriated, is a merelycoi"poreal one, or at all events determined wholly by positionin space. I hold my pen in my hand and can deal with it atwill : I sit on my chair : I cannot grasp my table, and I donot want to sit on it, but in various ways I manifest activedominion over it. I handle the books on and about the table :there are other books in the room which I am not using, but II'an lay hands on them whenever I want them. Hei'e thephysical element of possession is simple enough. But itbecomes less simple when we consider the passage between mychamber and the outer door. In it there may be portableobjects of which I am the ownera hat, a stick, an umbrellaand no one would think of denying that they are in mypossession. But they are not within my sight or instantreach, and, so far as my personal ability goes, they mightperadventure be carried away without my knowing it. Therelation is still less direct between the master of a housecontaining many rooms and his goods distributed am^ongthose rooms, or between the keeper of a magazine or warehouseand the various goods or stores therein deposited. When wecome to immoveable property, it is clear that absolute physicalcontrol is in most cases impracticable. If the occupier of aset of chambers cannot certainly prevent things in theentrance passage from being meddled with against his will,much less can one man, or ten men, in a field bounded by anordinary bank or fence guard every point of that boundary soas to prevent intrusion. Yet every one will say that if theowner or tenant of the field is there, and if there is nothingapparently inconsistent with his using any part of the field atwill, he is in possession of the whole.


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12 INTRODUCTION. Part J.Again, I go to a friend's chamber ; he is not there ; I sit

down at his table and write a note to him. Here the physicalrelations cannot be distinguished from those observable whenI am writing in my own chamber. But, although I may besaid to be in possession of the pen, if not of the chair and thetable, no one will think of saying that I am in possession ofthe other books and furniture in the room. The master of ahouse, whenever he enters it, is in possession of at least every-thing belonging to him that is within sight and reach; ifa thief makes his way in and carries off what he can lay handson, no one will say that he is in possession, even for a moment,of anything he has not actually laid hands on. ' If a man walksinto my house without any legal right, he does not therebyget possession of any piece of furniture in my house ; and if hewalks into my manufactory he does not thereby acquire anyright to the goods there ' ^ nor any apparent right or powerto dispose of them. We have no difficulty in saying that thetenant of a farm containing many score acres is in possessionof the whole ; but a person who enters on part of an occupiedfarm and claims title to the whole is not said or thought to bein possession of any of the land making up that farm, save sofar as he may succeed in effectually and continuously excludingthe former tenant from it.

All this time, be it noted, we have said nothing of possessionin law. We have sought only to fix attention on the pre-liminary conception of possession or control in fact.

It appears, then, that even at the earliest stage we havemany things to distinguish. Be facto possession, or Detentionas it is currently named in Continental writings, may be para-

(phrased as efCective occupation or control. Now it is evidentthat exclusive occupation or control, in the sense of a realunqualified power to exclude others, is nowhere to be found.All physical security is finite and qualified. A strong man isworse to meddle with than a weak man or a child, but thestrong man also may be overpowered. It is harder to break

' James L.J., Ex parte Fletcher, 1877, 5 Ch. Div. 809, S14.


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3. ELEMENTS OP DE FACTO POSSESSION. 13into a safe than a cupboard, a house than a field, a prison ora fortress than a house ; but locks may be picked, bolts forced,walls broken. External security means only making intrusionso troublesome, and successful intrusion so little to be hopedfor, that under ordinary conditions the risk of the attempt willbe out of proportion to the contingent gain of success. And theamount of material difficiilty which it is necessary or worth whileto set up is found by experience to vary with the circumstances.A dwelling-house is not built or guarded like a prison, and wedo not lock up tea and candles in a safe ; we should call abanker imprudent who used only the same cautions as aprivate householder. We may say then that, in commonunderstanding, that occupation at any rate is effective whichis sufficient as a rule and for practical pm-poses to excludestrangers from interfering with the occupier's use and enjoy-ment. Much less than this will often amount to possessionin the absence of any more effectual act in an adverse interest.Indeed it seems correct to say that ' any power to use andexclude others^ however small, will suffice, if accompanied bythe animus possidendi, provided that no one else has theanimus possidendi and an equal or greater power.'' '^ To deter-mine what acts will be sufficient in a particular case we mustattend to the circumstances, and especially to the nature ofthe thing dealt with, and the manner in which things ofthe same kind are habitually used and enjoyed. We mustdistinguish between moveable and immoveable property,between portable objects and those which exceed the limits ofportable mass ox bulk. Further, we must attend to theapparent intent with which the acts in question are done. Anact which is not done or believed to be done in the exerciseor assertion of dominion will not cause the person doingit to be regarded as the defacto exerciser of the powers of useand enjoyment. Still further, it will often not suffice toregard the intent of the actor alone. I may intend to assertdominion over a given subject of property, and I may do an

'. Terry, Principles of Anglo-American Law, p. 268.


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H INTEODUCTION. Part I.act, or a series of acts, fitted to manifest that intention. Butthere may be some other person who appears to be in a position,of right or in fact, to object to my claim ; and whether myaction be taken with or without the consent or acquiescence ofany such person will make a great difference to the practicalresult. If I act with the consent of the former holder (as apurchaser does when he receives delivery of goods or is letinto possession of land), whoever respected his will to excludeothers may be expected in like manner to respect mine : I get,if one may so use the word, the goodwill of his occupation. Butif consent be wanting, and I am confronted by resistance, (reven under apprehension of it, other people cannot be expectedto assume anything in my favour, and will not give me creditfor the powers of an owner until my exclusive power ofcontrol is manifest in actual experience. Thus it happens thatacts which if opposed would be insignificant are accepted as asufficient and actual entering on possession when they arefortified by the concurrence of the last possessor, while hostileor ambiguous occupation must make itself good at every step.Delivery is favourably construed, taking is put to strict proofand this not by calling in aid any presumption of right, buton the ground that the reality of de facto dominion is measuredin inverse ratio to the chances of effective opposition. And, inorder to ascertain whether acts of alleged occupation, control,or use and enjoyment, are effective as regards a given thingwe may have to consider

(a) of what kinds of physical control and use the thing inquestion is practically capable :

(b) with what intention the acts in question were done(c) whether the knowledge or intention of any other person

was material to their effect, and LE so, what that person didknow and intend.'-

Hence follows a seeming paradox. Occupation or controlis a matter of fact, and cannot of itself be dependent on matterof law. But it may depend on the opinion of certain persons for

' See Cook v. Eider, 1834, 16 Pick. (Mass.) 186.


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3- ELEMENTS OF DE FACTO POSSESSION. ISthe time beings or the current opmion of a multitude or a neigh-bourhoodj concerning that which is ultimately matter of law.Though law cannot alter facts^ or directly confer physical power,the reputation of legal right may make a great difference to theextent of a man's power in fact. Ownership does not make onean occupier, nor necessarily confer any right to oeciipy; butoccupation is easier and more effective (in a settled country atany rate) when armed with the real or supposed authority ofthe owner. Physical or de facto possession readily follows thereputation of title ; we shall see that possession in law isordinarily adjudged to follow the true title, in cases wherephysical possession is contested or ambiguous ; and in this thelaw does not cross, but rather develops and confirms, thepractical instinct of mankind.At the same time it must be remembered that when

physical possession or control is once gained, it may be orbecome precarious, but it is none the less real while it lasts.As Mr. Justice Holmes says, "^A powerful ruffian may bewithin equal reach and sight when a child picks up a pocket-book; but if he does nothing, the child has manifested theneedful power as well as if it had been backed by a hundredpolicemen.' In this case the child's dominion is a very realone for the time being. The ruffian may attempt to seize thepocket-book, but before he can execute his intention the childmay tear the book, or throw it into a river, or over a cliff, withthe result of its ceasing to exist as the same object, or passingout of human control. So, in the case of the banker abovementioned, let us make the extreme supposition that he notonly, does not use the regular precaution of a banker, butleaves the bank open and unguarded; still he will havepossession of the cash and securities in the bank until someone takes them.

It is needless to point out further that physical possessionmay be lost in various ways without any other person gainingit; but we must carefully guard ourselves against hastilyapplying the same idea to legal possession. The law does not


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16 INTEODUCTIOIsr. Part T.

always or necessarily attach the rights of possession to physicalcontrol ; and in like manner, when physical and legal pos-session coincide, it does not necessarily follow that the loss ofcontrol in fact shall involve the loss of possession in law. Thecontinuance or discontinuance of physical control is a fact,though not always an obvious fact ; the continuity or inter-ruption of legal possession cannot be affirmed without applyingto the facts, when ascertained, positive rules of law. Indeed,the rules are quite different in the Roman law and theCommon Law, so that the detailed comparison of them isprofitable, here as elsewhere, only when we bear in mind thateach stands on its own ground.

There is nothing irrational in a determination of the law tolimit the range of disputes in matter of fact by holding thatlegal possession, once established, can be changed only incertain defined ways, and shall persist until so changed.

4. Possession in Law.To have the actual apparent power of preventing inter-

ference with a thing is diiierent, and has to be distinguished,from having the power of such prevention attributed to oneby law, so that the intermeddler may be rightfully resisted atthe time, or may afterwards be compelled by legal process tomake reparation in some form.When the fact of control is coupled with a legal claim and

right to exercise it in one's own name against the world atlarge, we have possession in law as well as in fact. We sayas against the world at large, not as against all men withoutexception. For a perfectly exclusive right to the control ofanything can belong only to the owner, or to some one in-vested with such right by the will of the owner or someauthority ultimately derived therefrom, or, exceptionally, byan act of the law superseding the owner's will and his normalrights. Such a right is matter of title; the person bearing'it has a definite estate or interest known to the law, an estate


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4- POSSESSION IN LAW. 17of freehold or copyhold or for years if it be in land, a generalor special property if it be in goods. If he has not the actualcontrol, the law will help him to it; in other words, he isentitled or has the right to possess the thing in question.When he has obtained control, he will be the actual andrightful possessor. But meanwhile some one else may havepossession in fact, and may likewise have actual possession inlaw, that is, he may be entitled for the time being to repeland to claim redress for all and any acts of interference doneotherwise than on behalf of the true owner.

Possession in law is most easily understood as associatedwith possession in fact. This is the normal aspect of theright. It exists, broadly speaking, for the benefit of possessorsin fact and in good faith, even if we hold that the ulteriorobject is the benefit of those who, as being or claimingthrough true owners, are really entitled to possess. The lawwould be much simpler than it is if it were held that actualcontrol or custody invariably gives actual legal possession,whether the custodian exercises control on his own account oras the servant or otherwise on behalf of another. But nosystem of law, so far as we know, has gone that length. A Imanifest intent, not merely to exclude the world at large frominterfering with the thing in question, but to do so on one'sown account and in one's own name, is required in differentdegrees both by the Roman law and by the Common Law.One who holds a thing with the owner's consent must do soon the terms consented to ; when we have once conceivedlegal possession as a definite right or interest, there is nodifficulty in conceiving it to be one of the terms on which athing is handed over that legal possession shall remain with theowner, or in presuming it so to be in certain common cases, oreven in making a fixed rule of law that possession shall followthe transfer of physical control (which we may call manualdelivery in all cases, though the term is more proper tomoveables) only when specified kinds of interest in theproperty itself are concerned. Accordingly we find in thec


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18 INTEODUCTION. Part I.Roman law that possession is not easily separated from owner-ship by voluntary manual delivery; whereas the CommonLaw seems averse to separating possession in law from physicalcustody, where the thing is in an ascertained custody, and doesso only in special cases, as where a servant holds on behalf ofhis master, and where property taken in distress or executionis said to be ' in the custody of the law/ These cases havebeen thought anomalous in our modern system, and indeedthe authorities are not wholly clear. It may be observedhowever that a servant^s custody is often so manifestlyexercised not on his own account but on his master's that ithas no colour of apparent ownership. If we regard actsaccording to their apparent intent and effect, as measured bythe common knowledge of mankind, we can hardly say that agroom exercising his master's horse is even in de factopossession of the horse. He is in appearance as much as infact, in fact as much as in law, the master's instrument forexercising the master's power. There is no appearance ofacting on his own behalf which could mislead a man ofordinary judgment. The same may be said of a gardener ata country house when the house is left empty, of a tradesman'smessenger driving a cart with the tradesman's name on it, ofa porter in the service of a railway company or other carrierhandling goods in transit, and the like. We have alreadynoted that before we can safely describe a given act as an actof dominion, even in the region of pure matter of fact, wemust take account of its apparent intent and probable effect.It is however convenient and almost inevitable, when once weare in presence of an apparent cle facto possessor, to ascribe tohim possession in law so far and so long as nothing appears tothe contrary.

Again, there is another and quite different way in whichpossession in law may be independent of defacto possession.We may find it convenient that a possessor shall not losehis rights merely by losing physical control, and we mayso mould the legal incidents of possession once acquired


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4- POSSESSION IN LAW. 19that possession in law shall continue though there be buta shadow of real or apparent physical power, or no suchpower at all. This the Common Law has boldly and fullydone. It is not merely that things continue in a man^spossession though they be out of his immediate control, solong as his active control is, as some say, capable of beingreproduced, or, as others say, his relation to them is con-sistent with the usual dealing of an owner of such things :as where implements of husbandry are left lying out inthe field where they are used, or a purse or a jewel is mis-laid in the house where it is kept. Legal possession, inour law, may continue even though the object be to commonapprehension really lost or abandoned.

Again, we must have some positive rxde to meet the caseof a thing which is the object of dispute, and so evenlydisputed that no claimant can be said to have de factopossession rather than another. It might conceivably beheld that legal possession is in suspense as well as thephysical possession. But the Common Law does not sohold ; it prefers, in the absence of a decisive state of fact,to make legal possession follow the better right.

Further, possession in law is a substantive right or interestwhich exists and has legal incidents and advantages apartfrom the true owner's title. Hence it is itself a kind oftitle, and it is a natural development of the law, whethernecessary or not, that a possessor should be able to dealwith his apparent interest in the fashion of an owner notonly by physical acts but by acts in the law, and thatas regards every one not having a better title those actsshould be valid.

It may now be convenient to state certain rules whichare believed to represent, in a general way, the workingmethod of the Common Law with regard to Possession.They do not profess to be exhibited in any order of

systematic development, or to be logically independent, or tobe strictly co-ordinate in character or importance. The wordc 2


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20 INTEODXJCTION. Part I.

Possession, if not expressly qualifiedj will be used now andafterwards with the meaning of possession in law.

It would be convenient, if it were possible, to restore' seisin " to its ancient meaning of possession in law whetherof corporeal or incorporeal hereditaments, chattel interestsin land, or personal chattels, and appropriate ' possession 'to detention or de facto possession. But the violence tomodern usage would be excessive."&"-

5. Rules.I . Possession in fact is prima facie evidence of possession

in law.This might be expressed still more shortly, but at the

cost of using a terminology not familiar in our authorities,by saying Possession is presumedfrom Detention.

a. Possession in fact, with the manifest intent of soleand exclusive dominion, always imports possession in law.

It is not material whether physical control or apparentdominion be acquired with or without a good title, or, ifwithout a good title, whether innocently under colour ofa supposed title, or with wrongful knowledge and intent.A possessor may be a mere wrongdoer against the trueowner, and a wrongdoer for the very reason that he hasgot possession; while yet his possession is not only legalbut, as against all third persons not claiming under the trueowner, fully protected by the law. But we shall see thatwrongful possession is by no means an unmixed advantageto the possessor, in the case of goods at any rate.

Possession in fact without the manifestation of intent td|act as owner may or may not be accompanied by possessionin law according to the manner and character in which itis acquired.

3. Possession is single and exclusive. As the Romans said,' plures eandem rem in solidum possidere non possunt.-" Thisfollows from the fact of possession being taken as the basis


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S. RUIES. 21of a legal right. Physical possession is exclusive^ or it isnothing. If two men have laid hands on the same horseor the same sheep, each meaning to use it for his own pur-poses and exclude the other, there is not any de facto pos-session until one of them has gotten the mastery. ' Contranaturam quippe est, ut cum ego aliquid teneam, tu quoqueidtenere videaris.^^ This is no reason against ascribing legalpossession to one person in preference to another when physi-cal possession is in suspense (see rule 7 below), but it is areason against ascribing it to more than one.

The rule is fundamental in English as well as in Romanlaw.^ Such apparent exceptions as may be found consist inthe remedies of a possessor being granted, for certain purposesand in certain cases, to an owner out of possession. Thephrase of Roman law in such eases is ' perinde haberi debetac si possideret.^ ^ It must be admitted that the languageof our authorities is anything but clear or unifc rm, and some-times a bailor and bailee are spoken of as both having posses-sion.* In such passages the word is used in a double sense.

Joint tenants or tenants in common, when they have notparted with possession, possess in law, and may possess infact, according to their interest as owners. If a servant holdsthe property on their behalf, the defacto possession is exer-cised in the name and for the use of all of them. If oneof them alone holds or occupies, his physical possession isthat of an owner for his own interest and that of an agentas to the others. If there is a personal joint occupation, thephysical and legal possession exactly coincide. In every casethere is not a plural possession, but a single possession exer-cised by or on behalf of several persons.^

4. Possession is acquired and lost in certain specific ways.' Paulus, D. 41. 2. de acq. vel amitt. poss. 3. 5.' Co. Litt. 368 a; Vaughan, 189.' See note 49 by EudorfT to Savigny's Reoht des Beeitzes, 7th ed. (1865)

at p. 630.* E. g. Anoona v. Eogers, i Ex. Div. at p. 292. See Litt. ss. 314, 319, 321, 323.


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22 INTRODUCTION. Part I.

An existing possession can be determined only in one othose ways.

This rule is another necessary consequence of recognizingPossession as a definite legal right. When the law definesrights^ it must also define the ways in which they can beacquired and lost.The second part of the rule might be called the law

of persistence in relation to this subject : it is in truth acorollary from the first, but it is of such importance thatit needs to be distinctly stated. In approaching the subjectas a whole, and in working out various particular problems,there is nothing easier or more misleading than to assume thatwhen a thing is not in any one's physical control it is not, oron principle ought not to be, in any one's legal possession.

5. As against a mere wrongdoer possession is conclusiveproof of right to possess.Not only is existing possession protected against interfer-

ence at the hands of a mere intruder, but in an action forwrong to the possession .the intruder cannot be heard to say

.,that any third person to whose title he is himself a strangerhas a better title than the actual possessor. An alleged para-mount claim of some third person, however probable or evenobvious, is irrelevant unless one can justify under the authorityof that person. 1 This protection however does not extend toa right to possess when separated from actual possession.

6. As against strangers, the right founded on possession hasthe incidents of ownership and is transmissible according tothe nature of the subject-matter : we may say compendiouslythat Possession is a root of title.It might be held that the right to possess as against theworld at large is attached only to actual possession, and thatwhere a person is in possession without acknowledgment of

' Nevertheless a plaintiff in an action founded on right to possess, whose casewould be good if he relied on his own possession, may spoil it if he shows thebadness of his own title by setting out the previous history : Doe v. Barnard,1849, 13 Q. B. 946 ; 18 L. J. Q. B. 306 ; see per Mellor J. in Asher. Whitlock,L.B. I Q. B. atp. 6.


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S. RULES. 23the true title, and acting as owner, his apparent title cannotbe continued by transfer or devolution^ but, unless and untilthe true owner intervenes, there can be only successive occu-pations under which no one who has not actually obtainedpossession can acquire any right. But when possession isconceived as a substantive right in the nature of property,valid against all merely extraneous intrusion, there is noreason for not holding it to be capable of the same kinds oftransfer and devolution as property itself. And it would bemanifestly inconvenient to leave property to be scrambled forin the absence or indifference of the true owner. Accordinglyit is held that a possessor acting as owner has not only apersonal interest, but a title which is effective against alloutsiders, and enures to the benefit of all who may hereafterbe able to show a title derived from it by any form of bequest,devolution, or conveyance, appropriate to the nature of thesubject-matter.-^

Moreover, as possession originally without right may beconverted into fuU ownership by lapse of time, so a continuoustitle derived from such possession will become absolute when-ever the time has elapsed which is required in the particularcase for the final extinguishment of the former owner's claim.In other words, the final operation of statutory or otherprescription is not necessarily for the benefit of the actualpossessor for the time being. If B., having occupied White-acre without title for ten years, dies intestate leaving N. hisheir, and C. then enters and occupies for other ten years, itseems that when the right of A. the true owner is extinguishedby force of the Statute of Limitation the person who becomesentitled will be, not C. the actual possessor, but N. For B.,though he had no title as against A., had from the commence-ment of his occupation a good title against any one not

' Asher v. Whitlock, 1865, L. E. i Q. B. i ; Doe d. Smith v. Webber, 1834,I A. & E. 119. Note that Dixon . Gayfere (1853), 17 Beav. 421, is quiteconsistent with these decisions ; only a dictum at p. 430 is otherwise. Theaccount of it given in argument, L. E. i Q. B. at p. 4, ia inaccurate. Cp.0. W. Holmes, The Common Law, p. 23S.


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24 INTEODTJOTION. Part I.

claiming through A. If C. had been turned out by J)., C.would in the same way have a relatively good title as againstD. The effects of possession in itself, prior to and apart fromthe transfer of ownership by prescription, must be carefullydistinguished from the conditions and incidents of such trans-fer, though the provisional guarding of possession and thefinal change of property are instruments of the same policyof the law.

7. Where possession in fact is undetermined^ possession inlaw follows the right to possess.We may also say more shortly, when the limited scope ofthe proposition is rightly understood, that Possession followstitle. The rule was enunciated forty years ago by Maule J.in the following dictum :

' It seems to me that, as soon as a person is entitled topossession, and enters in the assertion of that possession, or,which is exactly the same thing, any other person enters bythe command of that lawful owner so entitled to possession,the law immediately vests the actual possession in the personwho has so entered. If there are two persons in a field, eachasserting that the field is his, and each doing some act in theassertion of the right of possession, and if the question iswhich of those two is in actual possession, I answer, theperson who has the title is in actual possession, and the otherperson is a trespasser .'^

It had already been said by Littleton that ' where two be inone house or other tenements together to claim the said landsand tenements, and the one claimeth by one title, and the otherby another title, the law shall adjudge him in possession thathath right to have the possession of the same tenements ." ^

This rule does not often occur in a simple application such asthat which Maule J. put for illustration's sake ; at least not

' Jones V. Chapman (1847), 1 Ex. at p. S21. And see Lord Blackburn'sremarks in Bristow v. Cormican (1878), 3 App. Ca. at p. 661.

'' Litt. a. 701, and to the same effect Newton, 19 H. VI. 28 h, and Perkins, 218.


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fg. RULES. 25in modem times ; still it is a material element in the doctrineof possession as a whole. It seems to be applicable not onlywhere one of the contending parties has an absolutely goodright to possess, but wherever he has a relatively better rightto possess than the other ; ^ in other words, possession wouldfollow at need a title duly derived from a prior though merelypossessory right as against any inferior title. Otherwise thelast preceding rule could not have its full effect.

8. An owner is prima facie entitled to possession, andpossessiofi is prima facie evidence of ownership.De facto possession is the sum of acts of ownership, and

when the owner of a thing is ascertained he is entitled toact as owner in every lawful way unless it appears that hehas divested himself of some part of his general powers.And, as the first condition of exercising full domiruon, heis entitled to the undisturbed control of the thing. Con-versely, for the very reason that possession in fact is thevisible exercise of ownership, the fact of possession, so longas it is not otherwise explained, tends to show that thepossessor is owner : though it may appear by further inquirythat he is exercising either a limited right derived from theowner and consistent with his title, or a wrongful powerassumed adversely to the true owner, or derived from someone wrongfully assuming to be owner, or possibly, again, anadverse but justified power.We have to add that the right to possess, though distinctfrom possession, is treated as equivalent to possession itselffor certain purposes, more important with regard to procedurethan to the substance of the law, and under the modernEnglish practice of only historical importance, but still needfulto be understood. It is then called constructive possession. Wantof attention to the somewhat minute distinctions arising fromthis extension of the rights of a possessor to one who is notan actual possessor has led to much confusion.

^ It might formerly, and perhaps still may sometimes, even be appliedagainst a true owner who had lost the immediate right to possess. See thecontinuation of the passage cited from Perkins.


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PAET 11.OF POSSESSION GENERALLY.

CHAPTEE I.The Nature of Possession.

THEOUGHOtFT oiu- inquiry we have to bear in mind thatthe following' elements are quite distinct in conception, and,though very often found in combination, are also separableand often separated in practice. They are

i. Physical control, detention, or de facto -possession. This,as an actual relation between a person and a thing, is matterof fact. Nevertheless questions which the Court must decideas matter of law arise as to the proof of the facts.

ii. Legal possession, the state of being a possessor in theeye of the law.

This is a definite legal relation of the possessor to the thingpossessed. In its most normal and obvious form, it coexistswith the fact of physical control, and with other facts makingthe exercise of that control rightful. But it may exist eitherwith or without detention, and either with or without a right-ful origin.A tailor sends to J. S.^s house a coat which J. S. has ordered.J. S . puts on the coat, and then has both physical control andrightful possession in law.

J. S. takes off the coat and gives it to a servant to takeback to the tailor for some alterations. Now the servant hasphysical control (in this connexion generally called ' custody 'by our authorities) and J. S. still has the possession in law.While the servant is going on his errand, Z. assaults him

and robs him of the coat. Z. is not only physically master ofthe coat, but, so soon as he has complete control of it, he has


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THE NATUEB OJP POSSESSION. 27possession in law, though a wrongful possession. To see whatis left to J. S. we must look to the next head.

iii. Right to possess or to have legal possession. Thisincludes the right to physical possession. It can exist apartfrom both physical and legal possession; it is, for example,that which remains to a rightful possessor immediately afterhe has been wrongfully dispossessed. It is a normal incidentof ownership or property, and the name of ' property ' is oftengiven to it. Unlike Possession itself, it is not necessarilyexclusive. A. may have the right to possess a thing as againstB. and every one else, while B. has at the same time a right topossess it as against every one except A. So joint tenantshave both single possession and a single joint right to possess,but tenants in common have a single possession with severalrights to possess.^ When a person having right to possessa thing acquires the physical control of it, he necessarilyacquires legal possession also.

Right to possess, when separajted from possession, is oftencalled ' constructive possession.' The correct use of the termwould seem to be coextensive with and limited to thoseeases where a person entitled to possess is (or was) allowedthe same remedies as if he had really been in possession.But it is also sometimes specially applied to the cases wherethe legal possession is with one person and the custody withhis servant, or some other person for the time being in a likeposition ; and sometimes it is extended to other eases wherelegal possession is separated from detention.

' Actual possession " as opposed to ' constructive possessionis in the same way an ambiguous term. It is most com-monly ^ used to signify physical control, with or withoutpossession in law. ' Bare possession ' is sometimes used

' Litt. S8. 311, 314 ; cf. s. 315, where if we interpreted Littleton in Coke'smanner we migtit hold the &c, to signify the additional reason that trespassia a wrong to the Possession itself.

^ But in statutes it has been held to include purely legal possessionconferred by a grant operating under the Statute of Uses : Hadfield's ca.,1873, L. E. 8 C. P. 306.


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28 OE POSSESSION GBNEEALLT. Part 11.with the same meaning. ' Lawful possession ' means a legalpossession which is also rightful or at least excusable; thismay be consistent with a superior right to possess in someother person.The whole terminology of the subject, however, is still very

loose and unsettled in the books, and the reader cannot be toostrongly warned that careful attention must in every case bepaid to the context.

In the procedure of the Common Law (which no longerexists in England, but must be understood in order tounderstand the substance of the law) an action of Trespassis the appropriate remedy for a wrong done to existinglegal possession.Wrongs affecting the right to possess are remediable by

other forms of action, mainly Ejectment (superseding theassizes and other possessory real actions) as to land, andTrover (largely superseding Detinue) as to personal chattels.

All actual legal possessors can maintain Trespass (andcontrol in fact is evidence of possession in law) ; but they mayuse the other remedies at their option in so far as they canshow a right to possess. An owner who has parted withpossession but may resume it at will can also maintain Trespass.The right to sue in trespass is therefore not a sufficient test ofPossession, though it is a necessary one.We shall now consider by what kinds of evidence the factof possession is established with regard to different kinds ofthings capable of ownership, and in what ways possession inlaw can be acquired and lost ; something must also be saidof the relations of Possession to the right to possess, andthe ways in which it affects and is affected by Title.

1. Evidence of Possession: Land.Inasmuch as Possession, a legal state of things importing

definite and valuable rights, is established by certain kinds offacts of which the law takes notice, it concerns us to knowwhat those facts are. The rights of a possessor belong to him


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Chap. I. I. THE NATUEE OE POSSESSION. 29who is in possessioiij but one who rehes on de facto possessionas investing him with those rights and entithng him to theappropriate remedies has to satisfy the Court that he ratherthan any other person was, at the time of the wrong he com-plains of, in a certain relation to the thing of which the useor enjoyment is in question. He must prove a state of factswhich will be sufficient in law to support his claim.

The subject-matter of Possession is either capable orincapable of comprehension, that is, of a complete physicalcontrol applied to the thing as a whole. A book may becarried away in the hand, or in the pocket. Chairs and tablesmay be carried away in a cart or a railway truck. The cartor truck is not so easily moved as a book or a chair, but it ismoveable and can be sent about the country at will under thesingle control of some one who guides it. A sporting gun ismoveable and portable ; the great guns of a man-of-war arenot portable in the common meaning of the word, but theyare still moveable ; they are capable, through appropriate me-chanical means, of single-handed control, and are not capableof a permanently divided control. The ship itself, howeverlarge, and though capable as to its parts of separate occupation,is still moveable and under cormnand as a whole. Ten acresof land in a field, on the other hand, or the farm buildingsthereon, are not moveable,^ and though the control of either ofthem existing at a given time may be single, it may at anytime be divided or subdivided. Part of the house may be letoff for the exclusive occupation of a tenant, or part of thefield may be sold, or acquired under compulsory powers bysome local authority. Even within the same visible boundarythere may be, and under the old common-field tillage thereconstantly were, diversities of both ownership and possession.^Or the surface may be in one person's occupation while a minebeneath it is occupied and worked by another.

^ Houses have been moved, for exceptional purposes, by severing tbem as awhole from the soil for a limited time. We are not concerned here with thisabnormal state of things.

Of. per Parke B., Jones i;. Williams (1837), 2 M. & W. 326, 331.


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30 OF POSSESSION GBNEfiALLY. Part II.Hence it is not possible, as matter of fact, to possess a

house, a wood, or a field in the same manner as we possess themoney in our pockets, or the owner of a cart and horsepossesses them when he is driving the horse in the cart.There can only be a more or less discontinuous series of actsof dominion. What kind of acts, and how many, can beaccepted as proof of exclusive use, must depend to a great extenton the manner in which the particular kind of property iscommonly used. When the object is as a whole incapable ofmanual control, and the question is merely who has de factopossession, all that a claimant can do is to show that he orsome one through whom he claims has been dealing with thatobject as an occupying owner might be expected to deal withit, and that no one else has done so. Omnia ut dominum gessisse^is, for English as well for Roman lawyers, a good workingsynonym of in possessione esse. Such conduct is evidence ofpossession, and the possession is evidence of ownership, subjectto any other evidence which may explain the matter otherwise.And the importance of this as regards land is greater than itseems at first sight. A fairly good title can be shown to thefreehold of most of the land in England ; but if we want toknow exactly to what land a given title applies, we haveoftener than not to rely on actual usage to determine theboundaries. Pew title-deeds are so precise in their descriptionof the property dealt with as to leave nothing uncertain.Where particular circumstances make the difference of a fewfeet material, there may be serious dispute about the owner-ship, for example, of a boundary ditch, with maps anddocuments in excellent order on both sides. It is quiteexceptional for documents to throw any light on facts of thiskind. They may guide us to a certain bank and double ditchbetween Blackacre and Whiteacre, but if the owner ofBlackacre claims the bank and both ditches, and the ownerof Whiteacre claims one ditch and half or the whole of thebank, the documents will probably cease to help us, and

' C. 7. 32, de poss. 2.


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Chap. I. I. THE NATURE OF POSSESSION. 31we must fall back on evidence of acts of ownership and ofthe local custom as to boundary ditches.^ Again, acts ofdominion over land are often isolated in space. A bank ora fence is mended here and there as it needs mending, andthe like. And then it has to be considered to what extentin space acts of this kind assume dominion, and againstwhom.

First, as to the quality of acts of dominion, they will beesteemed according to their subject-matter. Conduct whichwould be almost evidence of abandonment with regard to onekiad of land may with regard to another be as good evidenceof use and occupation as can be expected. ' By possession ismeant possession of that character of which the thing iscapable.^ ^ ' What acts amount to a sufficient occupation mustdepend upon the nature of the soil and the uses to which it isto be applied.^ ^ Where land is uncultivated and of littleimmediate use except for sport, shooting over it during somemonths of the shooting season may be enough to constitutedefacto possession.* In British India boundary disputes areexceedingly conunon, and one point to which evidence iscommonly directed is who sowed the last crop; but theevidence is often conflicting and untrustworthy, even collusivelitigation being got up beforehand in order to make evidenceon special points in such suits.^ The nature of the soil, onthe alluvial lands of Bengal at any rate, also makes a conflictof genuine claims quite possible and intelligible. Thus anAnglo-Indian magistrate may give very little weight totestimony which an English jury or judge would act upon inEngland without hesitation.

Acts of dominion over part of the thing in dispute may beevidence of defacto possession of the whole. The principles

' See Y. B. 4 H. VI. 10, pi. 4.'^ Lord FitzGerald in Lord Advocate v. Young, 1887, 13 App. Ca. at p. 556.' Cook V. Rider, 16 Pick. (Mass.) 186, 187.' Harper . Charleswortli, 1825, 4 B. & C. 574, 584. Grass had also been

taken under a licence from the plaintiff. See Mr. H. A. D. Phillips in L. Q. E. iii. 197-aoo.


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32 OF POSSESSION GENERALLY. Part II.and conditions on which this depends were thus explained byParke B. half a century ago :

' Ownership may be proved by proof of possession, and that canbe shown only by acts of enjoyment of the land itself; but it isimpossible in the nature of things to confine the evidence to thevery precise spot on which the alleged trespass may have beencommitted : evidence may be given of acts done on other parts,provided there is such a common character of locality between thoseparts and the spot in question as would raise a reasonable inferencein the minds of the jury that the place in dispute belonged to theplaintiff if the other parts did. In ordinary cases, to prove histitle to a close, the claimant may give in evidence acts of ownershipin any part of the same inclosure ; for the ownership of one partcauses a reasonable inference that the other belongs to the sameperson : though it by no means follows as a necessary conse-quence, for different persons may have balks of land in thesame inclosure ; but this is a fact to be submitted to the jury. SoI apprehend the same rule is applicable to a wood which is notinclosed by any fence. If you prove the cutting of timber in onepart, I take that to be evidence to go to a jury to prove a right inthe whole wood, although there be no fence, or distinct boundary,surrounding the whole; and the case of Stanley v. White ^ I conceiveis to be explained on this principle : there was a continuous belt oftrees, and acts of ownership on one part were held to be admissibleto prove that the plaintiff was the owner of another part, on whichthe trespass was committed. So I should apply the same reasoningto a continuous hedge ; though no doubt the defendant mightrebut the inference that the whole belonged to the same person byshowing acts of ownership on his part along the same fence. Ithas been said, in the course of the argument, that the defendanthad no interest to dispute acts of ownership not opposite his ownland ; but the ground on which such acts are admissible is not theacquiescence of any party : they are admissible of themselves,propria vigore, for they tend to prove that he who does them is theowner of the soil ; though if they are done in the absence of allpersons interested to dispute them, they are of less weight.' ^

Baron Parkers exposition has since received the highest' 14 East, 332 ; see below.'' Jones 11. Williams, 1837, 2 M. & W. 326, 331.


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Chap. 1. I. THE NATURE OE POSSESSION. 33judicial confirmation, and may be regarded as classical. Ina Scottish case where a claim of title to foreshore was foundedon continued acts of possession Lord Blackburn said : *

'Every act shown to have been done on any part of that tract hythe barons [of Erskine] or their agents which was not lawful unlessthe barons were owners of that spot on which it was done isevidence that they were in possession as owners of that spot onwhich it was done. No one such act is conclusive, and the weightof each act as evidence depends on the circumstances ; one veryimportant circumslance as to the weight being, whether the actwas such