POSSESSION.
§ 93. =Introduction.=
In the whole range of legal theory there is no conception more difficult
than that of possession. The Roman lawyers brought their usual acumen to
the analysis of it, and since their day the problem has formed the
subject of a voluminous literature, while it still continues to tax the
ingenuity of jurists. Nor is the question one of mere curiosity or
scientific interest, for its practical importance is not less than its
difficulty. The legal consequences which flow from the acquisition and
loss of possession are many and serious. Possession, for example, is
evidence of ownership; the possessor of a thing is presumed to be the
owner of it, and may put all other claimants to proof of their title.
Long possession is a sufficient title even to property which originally
belonged to another. The transfer of possession is one of the chief
methods of transferring ownership. The first possession of a thing which
as yet belongs to no one is a good title of right. Even in respect of
property already owned, the wrongful possession of it is a good title
for the wrongdoer, as against all the world except the true owner.
Possession is of such efficacy, also, that a possessor may in many cases
confer a good title on another, even though he has none himself; as when
I obtain a bank-note from a thief, or goods from a factor who disposes
of them in fraud of his principal. These are some, though some only, of
the results which the law attributes to possession, rightful or
wrongful. They are sufficient to show the importance of this conception,
and the necessity of an adequate analysis of its essential nature.
§ 94. =Possession in Fact and in Law.=
It is necessary to bear in mind from the outset the distinction between
possession in fact and possession in law. We have to remember the
possibility of more or less serious divergences between legal principles
and the truth of things. Not everything which is recognised as
possession by the law need be such in truth and in fact. And conversely
the law, by reasons good or bad, may be moved to exclude from the limits
of the conception facts which rightly fall within them. There are three
possible cases in this respect. First, possession may and usually does
exist both in fact and in law. The law recognises as possession all that
is such in fact, and nothing that is not such in fact, unless there is
some special reason to the contrary. Secondly, possession may exist in
fact but not in law. Thus the possession by a servant of his master’s
property is for some purposes not recognised as such by the law, and he
is then said to have detention or custody rather than possession.
Thirdly, possession may exist in law but not in fact; that is to say,
for some special reason the law attributes the advantages and results of
possession to some one who as a matter of fact does not possess. The
possession thus fictitiously attributed to him is by English lawyers
termed _constructive_. The Roman lawyers distinguished possession in
fact as _possessio naturalis_, and possession in law as _possessio
civilis_.[215]
In consequence of this divergence, partly intentional and avowed, partly
accidental and unavowed, between the law and the fact of possession, it
is impossible that any abstract theory should completely harmonise with
the detailed rules to be found in any concrete body of law. Such harmony
would be possible only in a legal system which had developed with
absolute logical rigour, undisturbed by historical accidents, and
unaffected by any of those special considerations which in all parts of
the law prevent the inflexible and consistent recognition of general
principles.
It follows from this discordance between law and fact, that a complete
theory of possession falls into two parts: first an analysis of the
conception itself, and secondly an exposition of the manner in which it
is recognised and applied in the actual legal system. It is with the
first of those matters that we are here alone concerned.
It is to be noticed that there are not two _ideas_ of possession—a legal
and a natural. Were this so, we could dispense altogether with the
discussion of possession in fact. There is only one idea, to which the
actual rules of law do more or less imperfectly conform. There is no
conception which will include all that amounts to possession in law, and
will include nothing else, and it is impossible to frame any definition
from which the concrete law of possession can be logically deduced. Our
task is merely to search for the idea which underlies this body of
rules, and of which they are the imperfect and partial expression and
application.
The complexities of the English law are increased by the curious
circumstance that two distinct kinds of legal possession are
recognised in that system. These are distinguished as seisin and
possession. To a considerable extent they are governed by different
rules and have different effects. I may have seisin of a piece of land
but not possession of it, or possession but not seisin, or both at
once; and in all those cases I may or may not at the same time have
possession in fact. The doctrine of seisin is limited to land; it is
one of the curiosities of that most curious of the products of the
human intellect, the English law of real property. The doctrine of
possession, on the other hand, is common, with certain variations, to
land and chattels. The divergence between these two forms of
possession in law is a matter of legal history, not of legal theory.
Extraordinary importance was until a comparatively recent period
attributed by our law to the acquisition and retention of seisin by
the owner of land. Without seisin his right was a mere shadow of
ownership, rather than the full reality of it. For many purposes a man
had only what he possessed—and the form of his possession must be that
which amounted to seisin. A dispossessed owner was deprived of his
most effective remedies; he could neither alienate his estate, nor
leave it by his will; neither did his heirs inherit it after him. The
tendency of modern law is to eliminate the whole doctrine of seisin,
as an archaic survival of an earlier process of thought, and to
recognise a single form of legal possession.[216]
§ 95. =Corporeal and Incorporeal Possession.=
We have seen in a former chapter that ownership is of two kinds, being
either corporeal or incorporeal. A similar distinction is to be drawn in
the case of possession. Corporeal possession is the possession of a
material object—a house, a farm, a piece of money. Incorporeal
possession is the possession of anything other than a material
object—for example, a way over another man’s land, the access of light
to the windows of a house, a title of rank, an office of profit, and
such like. All these things may be possessed as well as owned. The
possessor may or may not be the owner of them, and the owner of them may
or may not be in possession of them. They may have no owner at all,
having no existence _de jure_, and yet they may be possessed and enjoyed
_de facto_.
Corporeal possession is termed in Roman law _possessio corporis_.
Incorporeal possession is distinguished as _possessio juris_, the
possession of a right, just as incorporeal ownership is the ownership of
a right. The Germans distinguish in like fashion between _Sachenbesitz_,
the possession of a material thing, and _Rechtsbesitz_, the possession
of a right. The significance of this nomenclature and the nature of the
distinction indicated by it will be considered by us later.
It is a question much debated whether incorporeal possession is in
reality true possession at all. Some are of opinion that all genuine
possession is corporeal, and that the other is related to it by way of
analogy merely. They maintain that there is no single generic conception
which includes _possessio corporis_ and _possessio juris_ as its two
specific forms. The Roman lawyers speak with hesitation and even
inconsistency on the point. They sometimes include both forms under the
title of _possessio_, while at other times they are careful to qualify
incorporeal possession as _quasi possessio_—something which is not true
possession, but is analogous to it. The question is one of no little
difficulty, but the opinion here accepted is that the two forms do in
truth belong to a single genus. The true idea of possession is wider
than that of corporeal possession, just as the true idea of ownership is
wider than that of corporeal ownership. The possession of a right of way
is generically identical with the possession of the land itself, though
specifically different from it.
This being so, the strictly logical order of exposition involves the
analysis, in the first place, of the generic conception, in its full
compass, followed by an explanation of the _differentia_, which
distinguishes _possessio corporis_ from _possessio juris_. We shall,
however, adopt a different course, confining our attention in the first
place to _possessio corporis_, and proceeding thereafter to the analysis
of _possessio juris_ and to the exposition of the generic idea which
comprises both of them. This course is advisable for two reasons. In the
first place, the matter is of such difficulty that it is easier to
proceed from the specific idea to the generic, than conversely. And in
the second place, the conception of corporeal possession is so much more
important than that of incorporeal, that it is permissible to treat the
latter simply as a supplement to the former, rather than as co-ordinate
with it.
§ 96. =Corporeal Possession.=
Corporeal possession is clearly some form of continuing relation between
a person and a material object. It is equally clear that it is a
relation of fact and not one of right. It may be, and commonly is, a
title of right; but it is not a right itself. A man may possess a thing
in defiance of the law, no less than in accordance with it. Nor is this
in any way inconsistent with the proposition, already considered by us,
that possession may be such either in law or in fact. A thief has
possession in law, although he has acquired it contrary to law. The law
condemns his possession as wrongful, but at the same time recognises
that it exists, and attributes to it most, if not all, of the ordinary
consequences of possession.[217]
What, then, is the exact nature of that continuing _de facto_ relation
between a person and a thing, which is known as possession? The answer
is apparently this: _The possession of a material object is the
continuing exercise of a claim to the exclusive use of it_. It involves,
therefore, two distinct elements, one of which is mental or subjective,
the other physical or objective. The one consists in the intention of
the possessor with respect to the thing possessed, while the other
consists in the external facts in which this intention has realised,
embodied, or fulfilled itself. These two constituent elements of
possession were distinguished by the Roman lawyers as _animus_ and
_corpus_, and the expressions are conveniently retained by modern
writers. The subjective element is called more particularly the _animus
possidendi_, _animus sibi habendi_, or _animus domini_.
_Apiscimur possessionem_, so runs a celebrated sentence of the Roman
lawyer Paul,[218] _corpore et animo, neque per se animo aut per se
corpore_. Neither of these is sufficient by itself. Possession begins
only with their union, and lasts only until one or other of them
disappears. No claim or _animus_, however strenuous or however rightful,
will enable a man to acquire or retain possession, unless it is
effectually realised or exercised in fact. No mere intent to appropriate
a thing will amount to the possession of it. Conversely, the _corpus_
without the _animus_ is equally ineffective. No mere physical relation
of person to thing has any significance in this respect, unless it is
the outward form in which the needful _animus_ or intent has fulfilled
and realised itself. A man does not possess a field because he is
walking about in it, unless he has the intent to exclude other persons
from the use of it. I may be alone in a room with money that does not
belong to me lying ready to my hand on the table. I have absolute
physical power over this money; I can take it away with me if I please;
but I have no possession of it, for I have no such purpose with respect
to it.
§ 97. =The Animus Possidendi.=
We shall consider separately these two elements in the conception. And
first of the _animus possidendi_. The intent necessary to constitute
possession is the intent to appropriate to oneself the exclusive use of
the thing possessed. It is an exclusive claim to a material object. It
is a purpose of using the thing oneself and of excluding the
interference of other persons. As to this necessary mental attitude of
the possessor there are the following observations to be made.
1. The _animus sibi habendi_ is not necessarily a claim of right. It may
be consciously wrongful. The thief has a possession no less real than
that of a true owner. The possessor of a thing is not he who has, or
believes that he has, a right to it, but he who intends to act as if he
had such a right. To possession in good faith the law may and does allow
special benefits which are cut off by fraud, but to possession as
such—the fulfilment of the self-assertive will of the individual—good
faith is irrelevant.
2. The claim of the possessor must be exclusive. Possession involves an
intent to exclude other persons from the uses of the thing possessed. A
mere intent or claim of unexclusive use cannot amount to possession of
the material thing itself, though it may and often does amount to some
form of incorporeal possession. He who claims and exercises a right of
way over another man’s land is in possession of this right of way; but
he is not in possession of the land itself, for he has not the necessary
_animus_ of exclusion.
The exclusion, however, need not be absolute. I may possess my land
notwithstanding the fact that some other person, or even the public at
large, possesses a right of way over it. For, subject to this right of
way, my _animus possidendi_ is still a claim of exclusive use. I intend
to exclude all alien interference except such as is justified by the
limited and special right of use vested in others.
3. The _animus possidendi_ need not amount to a claim or intent to use
the thing _as owner_. A tenant, a borrower, or a pledgee may have
possession no less real than that of the owner himself. Any degree or
form of intended use, however limited in extent or in duration, may, if
exclusive for the time being, be sufficient to constitute possession.
4. The _animus possidendi_ need not be a claim on one’s own behalf. I
may possess a thing either on my own account or on account of another. A
servant, agent, or trustee may have true possession, though he claims
the exclusive use of the thing on behalf of another than himself.[219]
5. The _animus possidendi_ need not be specific, but may be merely
general. That is to say, it does not necessarily involve any continuous
or present knowledge of the particular thing possessed or of the
possessor’s relation to it. A general intent with respect to a class of
things is sufficient (if coupled with the necessary physical relation)
to confer possession of the individual objects belonging to that class,
even though their individual existence is unknown. Thus I possess all
the books in my library, even though I may have forgotten the existence
of many of them. So if I set nets to catch fish, I have a general intent
and claim with respect to all the fish that come therein; and my
ignorance whether there are any there or not does in no way affect my
possession of such as are there. So I have a general purpose to possess
my flocks and herds, which is sufficient to confer possession of their
increase though unknown to me. So if I receive a letter, I have
forthwith the _animus possidendi_ with respect to its enclosure; and I
do not first acquire possession of the cheque that is inside it, when I
open the envelope and see it.[220] But if, on the other hand, I buy a
cabinet believing it to be empty, whereas it contains money hid in a
secret drawer, I do not acquire possession of the money until I actually
find it; for until then I have no _animus_ with respect to it, either
general or specific.[221]
§ 98. =The Corpus of Possession.=
To constitute possession the _animus domini_ is not in itself
sufficient, but must be embodied in a _corpus_. The claim of the
possessor must be effectively realised in the facts; that is to say, it
must be actually and continuously exercised. The will is sufficient only
when manifested in an appropriate environment of fact, just as the fact
is sufficient only when it is the expression and embodiment of the
required intent and will. Possession is the effective realisation in
fact of the _animus sibi habendi_.
One of the chief difficulties in the theory of possession is that of
determining what amounts to such effective realisation. The true answer
seems to be this: that the facts must amount to the actual present
exclusion of all alien interference with the thing possessed, together
with a reasonably sufficient security for the exclusive use of it in the
future. Then, and then only, is the _animus_ or self-assertive will of
the possessor satisfied and realised. Then, and only then, is there a
continuing _de facto_ exercise of the claim of exclusive use. Whether
this state of facts exists depends on two things: (1) on the relation of
the possessor to other persons, and (2) on the relation of the possessor
to the thing possessed. We shall consider these two elements of the
_corpus possessionis_ separately.
§ 99. =The Relation of the Possessor to other Persons.=
So far as other persons are concerned, I am in possession of a thing
when the facts of the case are such as to create a reasonable
expectation that I will not be interfered with in the use of it. I must
have some sort of security for their acquiescence and non-interference.
“The reality,” it has been well said,[222] “of _de facto_ dominion is
measured in inverse ratio to the chances of effective opposition.” A
security for enjoyment may, indeed, be of any degree of goodness or
badness, and the prospect of enjoyment may vary from a mere chance up to
moral certainty. At what point in the scale, then, are we to draw the
line? What measure of security is required for possession? We can only
answer: Any measure which normally and reasonably satisfies the _animus
domini_. A thing is possessed, when it stands with respect to other
persons in such a position that the possessor, having a reasonable
confidence that his claim to it will be respected, is content to leave
it where it is. Such a measure of security may be derived from many
sources, of which the following are the most important.[223]
1. _The physical power of the possessor._ The physical power to exclude
all alien interference (accompanied of course by the needful intent)
certainly confers possession; for it constitutes an effective guarantee
of enjoyment. If I own a purse of money, and lock it up in a
burglar-proof safe in my house, I certainly have possession of it. I
have effectively realised my _animus possidendi_, for no one can lay a
finger on the thing without my consent, and I have full power of using
it myself. Possession thus based on physical power may be looked on as
the typical and perfect form. Many writers, however, go so far as to
consider it the only form, defining possession as the intention, coupled
with the physical power, of excluding all other persons from the use of
a material object. We shall see reason to conclude that this is far too
narrow a view of the matter.
2. _The personal presence of the possessor._ This source of security
must be distinguished from that which has just been mentioned. The two
commonly coincide, indeed, but not necessarily. Bolts, bars, and stone
walls will give me the physical power of exclusion without any personal
presence on my part; and on the other hand there may be personal
presence without any real power of exclusion. A little child has no
physical power as against a grown man; yet it possesses the money in its
hand. A dying man may retain or acquire possession by his personal
presence, but certainly not by any physical power left in him. The
occupier of a farm has probably no real physical power of preventing a
trespass upon it, but his personal presence may be perfectly effective
in restraining any such interference with his rights. The respect shown
to a man’s person will commonly extend to all things claimed by him that
are in his immediate presence.
3. _Secrecy._ A third source of _de facto_ security is secrecy. If a man
will keep a thing safe from others, he may hide it; and he will gain
thereby a reasonable guarantee of enjoyment and is just as effectively
in possession of the thing, as is the strong man armed who keeps his
goods in peace.
4. _Custom._ Such is the tendency of mankind to acquiesce in established
usage, that we have here a further and important source of _de facto_
security and possession. Did I plough and sow and reap the harvest of a
field last year and the year before? Then unless there is something to
the contrary, I may reasonably expect to do it again this year, and I am
in possession of the field.
5. _Respect for rightful claims._ Possession is a matter of fact and not
a matter of right. A claim may realise itself in the facts whether it is
rightful or wrongful. Yet its rightfulness, or rather a public
conviction of its rightfulness, is an important element in the
acquisition of possession. A rightful claim will readily obtain that
general acquiescence which is essential to _de facto_ security, but a
wrongful claim will have to make itself good without any assistance from
the law-abiding spirit of the community. An owner will possess his
property on much easier terms than those on which a thief will possess
his plunder.[224] The two forms of security, _de facto_ and _de jure_,
tend to coincidence. Possession tends to draw ownership after it, and
ownership attracts possession.
6. _The manifestation of the animus domini._ An important element in the
_de facto_ security of a claim is the visibility of the claim.
Possession essentially consists, it is true, not in the manifestation of
the _animus_, but in the realisation of it. But a manifested intent is
much more likely to obtain the security of general acquiescence than one
which has never assumed a visible form. Hence the importance of such
circumstances as entry, apprehension, and actual use.[225]
7. _The protection afforded by the possession of other things._ The
possession of a thing tends to confer possession of any other thing that
is connected with the first or accessory to it. The possession of land
confers a measure of security, which _may_ amount to possession, upon
all chattels situated upon it. The possession of a house may confer the
possession of the chattels inside it. The possession of a box or a
packet may bring with it the possession of its contents. Not
necessarily, however, in any of those cases. A man effectually gives
delivery of a load of bricks by depositing them on my land, even in my
absence; but he could not deliver a roll of bank-notes by laying them
upon my doorstep. In the former case the position of the thing is normal
and secure; in the latter it is abnormal and insecure.
Notwithstanding some judicial dicta to the contrary, it does not seem to
be true, either in law or in fact, that the possession of land
necessarily confers possession of all chattels that are on or under it;
or that the possession of a receptacle such as a box, bag, or cabinet,
necessarily confers possession of its contents. Whether the possession
of one thing will bring with it the possession of another that is thus
connected with it depends upon the circumstances of the particular case.
A chattel may be upon my land, and yet I shall have no possession of it
unless the _animus_ and _corpus possessionis_ both exist. I may have no
_animus_; as when my neighbour’s sheep, with or without my knowledge,
stray into my field. There may be no _corpus_; as when I lose a jewel in
my garden, and cannot find it again. There may be neither _corpus_ nor
_animus_; as when, unknown to me, there is a jar of coins buried
somewhere upon my estate. So in the case of chattels, the possession of
the receptacle does not of necessity carry with it the _possession_ of
its contents. As already stated, if I buy a cabinet containing money in
a secret drawer, I acquire no possession of the money, till I actually
discover it. For I have no _animus possidendi_ with respect to any such
contents, but solely with respect to the cabinet itself.
That this is so in law, no less than in fact, appears from the
following cases:—
In _Bridges_ v. _Hawkesworth_[226] a parcel of bank-notes was dropped
on the floor of the defendant’s shop, where they were found by the
plaintiff, a customer. It was held that the plaintiff had a good title
to them as against the defendant. For the plaintiff, and not the
defendant, was the first to acquire possession of them. The defendant
had not the necessary _animus_, for he did not know of their
existence.
In _R._ v. _Moore_[227] a bank-note was dropped in the shop of the
prisoner, who on discovering it, picked it up and converted it to his
own use, well knowing that the owner could be found. It was held that
he was rightly convicted of larceny; from which it follows that he was
not in possession of the note until he actually discovered it.
In _Merry_ v. _Green_[228] the plaintiff purchased a bureau at
auction, and subsequently discovered money in it, hidden in a secret
drawer and belonging to the vendor. The plaintiff thereupon
appropriated the money; and it was held that in doing so he committed
theft, as he obtained possession of the money not when he innocently
bought the bureau, but when he fraudulently abstracted the contents of
it.
In _Cartwright_ v. _Green_[229] a bureau was delivered for the purpose
of repairs to a carpenter, who discovered in a secret drawer money
which he converted to his own use. It was held that he committed
larceny, by feloniously taking the money into his possession.
On the other hand the possession of the receptacle _may_ confer
possession of the contents, even though their existence is unknown;
for there may at the time of taking the receptacle be a general intent
to take its contents also. He who steals a purse, not knowing whether
there is money in it, steals the money in it at the same time.
Thus in _R._ v. _Mucklow_[230] a letter containing a bank-draft was
delivered by mistake to the prisoner, whose name was identical with
that of the person for whom the letter was intended. He received the
letter innocently; but on subsequently opening it and finding that it
was not meant for him, he appropriated the draft. It was held that he
was not guilty of larceny. For the innocent possession of the letter
brought with it the innocent possession of its contents, and no
subsequent fraudulent dealing with the thing thus innocently obtained
could amount to theft.
There are, however, certain cases which seem to indicate that the
possessor of land possesses whatever is in it or under it.
In _Elwes_ v. _Brigg Gas Co._[231] the defendant company took a lease
of land from the plaintiff for the purpose of erecting gas works, and
in the process of excavation found a prehistoric boat six feet below
the surface. It was held that the boat belonged to the landlord, and
not to the tenants who discovered it. Chitty, J., says of the
plaintiff: “Being entitled to the inheritance ... and in lawful
possession, he was in possession of the ground, not merely of the
surface, but of everything that lay beneath the surface down to the
centre of the earth, and consequently in possession of the boat.... In
my opinion it makes no difference in these circumstances that the
plaintiff was not aware of the existence of the boat.”
So in _South Staffordshire Water Co._ v. _Sharman_[232] the defendant
was employed by the plaintiff company to clean out a pond upon their
land, and in doing so he found certain gold rings at the bottom of it.
It was held that the company was in first possession of these rings,
and the defendant, therefore, had acquired no title to them.
Cases such as these, however, are capable of explanation on other
grounds, and do not involve any necessary conflict either with the
theory of possession or with the cases already cited, such as
_Bridges_ v. _Hawkesworth_. The general principle is that the first
finder of a thing has a good title to it against all but the true
owner, even though the thing is found on the property of another
person (_Armory_ v. _Delamirie_,[233] _Bridges_ v. _Hawkesworth_).
This principle, however, is subject to important exceptions, in which,
owing to the special circumstances of the case, the better right is in
him on whose property the thing is found. The chief of these
exceptional cases are the following:—
1. When he on whose property the thing is found is already in
possession not merely of the property, but of the thing itself; as in
certain circumstances, even without specific knowledge, he undoubtedly
may be. His prior possession will then confer a better right as
against the finder. If I sell a coat in the pocket of which, unknown
to me, there is a purse which I picked up in the street, and the
purchaser of the coat finds the purse in it, it may be assumed with
some confidence that I have a better right to it than he has, though
it does not belong to either of us.
2. A second limitation of the right of a finder is that, if any one
finds a thing as the servant or agent of another, he finds it not for
himself, but for his employer. If I instruct a carpenter to break open
a locked box for me, he must give up to me whatever he finds in it.
This seems a sufficient explanation of such a case as _Sharland’s_.
The rings found at the bottom of the pond were not in the Company’s
possession in fact; and it seems contrary to other cases to hold that
they were so in law. But though Sharland was the first to obtain
possession of them, he obtained it for his employers, and could claim
no title for himself.[234]
3. A third case in which a finder obtains no title is that in which he
gets possession only through a trespass or other act of wrongdoing. If
a trespasser seeks and finds treasure in my land, he must give it up
to me, not because I was first in possession of it (which is not the
case), but because he cannot be suffered to retain any advantage
derived from his own wrong. This seems a sufficient explanation of
_Elwes_ v. _Brigg Gas Co._ “The boat,” says Chitty, J.,[235] “was
embedded in the land. A mere trespasser could not have taken
possession of it; he could only have come at it by further acts of
trespass involving spoil and waste of the inheritance.” According to
the true construction of the lease the tenants, though entitled to
excavate and remove soil, were not entitled to remove anything else.
They must leave the premises as they found them, save in so far as
they were authorised to do otherwise by the terms of their lease.
§ 100. =Relation of the Possessor to the Thing Possessed.=
The second element in the _corpus possessionis_ is the relation of the
possessor to the thing possessed, the first being that which we have
just considered, namely, the relation of the possessor to other persons.
To constitute possession the _animus domini_ must realise itself in both
of those relations. The necessary relation between the possessor and the
thing possessed is such as to admit of his making such use of it as
accords with the nature of the thing and of his claim to it. There must
be no barrier between him and it, inconsistent with the nature of the
claim he makes to it. If I desire to catch fish, I have no possession of
them till I have them securely in my net or on my line. Till then my
_animus domini_ has not been effectively embodied in the facts. So
possession once gained may be lost by the loss of my power of using the
thing; as when a bird escapes from its cage, or I drop a jewel in the
sea. It is not necessary that there should be anything in the nature of
physical presence or contact. So far as the physical relation between
person and thing is concerned, I may be in possession of a piece of land
at the other side of the world. My power of using a thing is not
destroyed by my voluntary absence from it, for I can go to it when I
will.
Some amount of difficulty or even uncertainty in coming to the enjoyment
of a thing is not inconsistent with the present possession of it. My
cattle have strayed, but they will probably be found. My dog is away
from home, but he will probably return. I have mislaid a book, but it is
somewhere within my house and can be found with a little trouble. These
things, therefore, I still possess, though I cannot lay my hands on them
at will. I have with respect to them a reasonable and confident
expectation of enjoyment. But if a wild bird escapes from its cage, or a
thing is hopelessly mislaid, whether in my house or out of it, I have
lost possession of it. Such a loss of the proper relation to the thing
itself is very often at the same time the loss of the proper relation to
other persons. Thus if I drop a shilling in the street, I lose
possession on both grounds. It is very unlikely that I shall find it
myself, and it is very likely that some passer-by will discover and
appropriate it.