POSSESSION (CONTINUED).
§ 101. =Immediate and Mediate Possession.=
One person may possess a thing for and on account of some one else. In
such a case the latter is in possession by the agency of him who so
holds the thing on his behalf. The possession thus held by one man
through another may be termed _mediate_, while that which is acquired or
retained directly or personally may be distinguished as _immediate_ or
_direct_. If I go myself to purchase a book, I acquire direct possession
of it; but if I send my servant to buy it for me, I acquire mediate
possession of it through him, until he has brought it to me, when my
possession becomes immediate.
Of mediate possession there are three kinds.[236] The first is that
which I acquire through an agent or servant; that is to say through some
one who holds solely on my account and claims no interest of his own. In
such a case I undoubtedly acquire or retain possession; as, for example,
when I allow my servant to use my tools in his work, or when I send him
to buy or borrow a chattel for me, or when I deposit goods with a
warehouseman who holds them on my account, or when I send my boots to a
shoemaker to be repaired. In all such cases, though the immediate
possession is in the servant, warehouseman, or artisan, the mediate
possession is in me; for the immediate possession is held on my account,
and my _animus domini_ is therefore sufficiently realised in the facts.
The second kind of mediate possession is that in which the direct
possession is in one who holds both on my account and on his own, but
who recognises my superior right to obtain from him the direct
possession whenever I choose to demand it. That is to say, it is the
case of a borrower, hirer, or tenant at will. I do not lose possession
of a thing because I have lent it to some one who acknowledges my title
to it and is prepared to return it to me on demand, and who in the
meantime holds it and looks after it on my behalf. There is no
difference in this respect between entrusting a thing to a servant or
agent and entrusting it to a borrower. Through the one, as well as
through the other, I retain as regards all other persons a due security
for the use and enjoyment of my property. I myself possess whatever is
possessed for me on those terms by another.[237]
There is yet a third form of mediate possession, respecting which more
doubt may exist, but which must be recognised by sound theory as true
possession. It is the case in which the immediate possession is in a
person who claims it for himself until some time has elapsed or some
condition has been fulfilled, but who acknowledges the title of another
for whom he holds the thing, and to whom he is prepared to deliver it
when his own temporary claim has come to an end: as for example when I
lend a chattel to another for a fixed time, or deliver it as a pledge to
be returned on the payment of a debt. Even in such a case I retain
possession of the thing, so far as third persons are concerned. The
_animus_ and the _corpus_ are both present; the _animus_, for I have not
ceased, subject to the temporary right of another person, to claim the
exclusive use of the thing for myself; the _corpus_, inasmuch as through
the instrumentality of the bailee or pledgee, who is keeping the thing
safe for me, I am effectually excluding all other persons from it, and
have thereby attained a sufficient security for its enjoyment. In
respect of the effective realisation of the _animus domini_, there seems
to be no essential difference between entrusting a thing to an agent,
entrusting it to a bailee at will, and entrusting it to a bailee for a
fixed term, or to a creditor by way of pledge. In all these cases I get
the benefit of the immediate possession of another person, who, subject
to his own claim, if any, holds and guards the thing on my account. If I
send a book to be bound, can my continued possession of it depend on
whether the binder has or has not a lien over it for the price of the
work done by him? If I lend a book to a friend, can my possession of it
depend on whether he is to return it on demand or may keep it till
to-morrow? Such distinctions are irrelevant, and in any alternative my
possession as against third persons is unaffected.
A test of the existence of a true mediate possession in all the
foregoing cases is to be found in the operation of the law of
prescription. A title by prescription is based on long and continuous
possession. But he who desires to acquire ownership in this way need
not retain the immediate possession of the thing. He may let his land
to a tenant for a term of years, and his possession will remain
unaffected, and prescription will continue to run in his favour. If he
desires to acquire a right of way by prescription, his tenant’s use of
it is equivalent to his own. For all the purposes of the law of
prescription mediate possession in all its forms is as good as
immediate. In _Haig_ v. _West_[238] it is said by Lindley, L. J.: “The
vestry by their tenants occupied and enjoyed the lanes as land
belonging to the parish.... The parish have in our opinion gained a
title to these parish lanes by the Statute of Limitations. The vestry
have by their tenants occupied and enjoyed the lanes for more than a
century.”
In the case of chattels a further test of the legal recognition of
mediate possession in all its forms is to be found in the law as to
delivery by attornment. In _Elmore_ v. _Stone_[239] A. bought a horse
from B., a livery stable keeper, and at the same time agreed that it
should remain at livery with B. It was held that by this agreement the
horse had been effectually delivered by B. to A., though it had
remained continuously in the physical custody of B. That is to say, A.
had acquired mediate possession, through the direct possession which
B. held on his behalf. The case of _Marvin_ v. _Wallace_[240] goes
still further. A. bought a horse from B., and, without any change in
the immediate possession, lent it to the seller to keep and use as a
bailee for a month. It was held that the horse had been effectually
delivered by B. to A. This was mediate possession of the third kind,
being acquired and retained through a bailee for a fixed term.
Crompton, J., referring to _Elmore_ v. _Stone_, says:[241] “In the one
case we have a bailment of a description different from the original
possession; here we have a loan; but in each case the possession of
the bailee is the possession of the bailor; it would be dangerous to
distinguish between such cases.”
In all cases of mediate possession two persons are in possession of the
same thing at the same time. Every mediate possessor stands in relation
to a direct possessor through whom he holds. If I deposit goods with an
agent, he is in possession of them as well as I. He possesses for me,
and I possess through him. A similar duplicate possession exists in the
case of master and servant, landlord and tenant, bailor and bailee,
pledgor and pledgee. In all such cases, however, there is an important
distinction to be noticed. Mediate possession exists as against third
persons only, and not as against the immediate possessor. Immediate
possession, on the other hand, is valid as against all the world,
including the mediate possessor himself. Thus if I deposit goods with a
warehouseman, I retain possession as against all other persons; because
as against them I have the benefit of the warehouseman’s custody. But as
between the warehouseman and myself, he is in possession and not I. For
as against him I have in no way realised my _animus possidendi_ nor in
any way obtained a security of use and enjoyment. So in the case of a
pledge, the debtor continues to possess quoad the world at large; but as
between debtor and creditor, possession is in the latter. The debtor’s
possession is mediate and relative; the creditor’s is immediate and
absolute. So also with landlord and tenant, bailor and bailee, master
and servant, principal and agent, and all other cases of mediate
possession.
Here also we may find a test in the operation of prescription. As
between landlord and tenant, prescription, if it runs at all, will run
in favour of the tenant; but at the same time it may run in favour of
the landlord as against the true owner of the property. Let us
suppose, for example, that possession for twenty years will in all
cases give a good title to land, and that A. takes wrongful possession
of land from X., holds it for ten years, and then allows B. to have
the gratuitous use of it as tenant at will. In ten years more A. will
have a good title as against X., for, as against him, A. has been
continuously in possession. But in yet another ten years B., the
tenant, will have a good title as against his landlord A., for, as
between these two, the possession has been for twenty years in B.
To put the matter in a general form, prescription runs in favour of
the immediate against the mediate possessor, but in favour of the
mediate possessor as against third persons.
§ 102. =Concurrent Possession.=
It was a maxim of the civil law that two persons could not be in
possession of the same thing at the same time. _Plures eandem rem in
solidum possidere non possunt._[242] As a general proposition this is
true; for exclusiveness is of the essence of possession. Two adverse
claims of exclusive use cannot both be effectually realised at the same
time. Claims, however, which are not adverse, and which are not,
therefore, mutually destructive, admit of concurrent realisation. Hence
there are several possible cases of duplicate possession.
1. Mediate and immediate possession coexist in respect of the same thing
as already explained.
2. Two or more persons may possess the same thing in common, just as
they may own it in common. This is called _compossessio_ by the
civilians.
3. Corporeal and incorporeal possession may coexist in respect of the
same material object, just as corporeal and incorporeal ownership may.
Thus A. may possess the land, while B. possesses a right of way over it.
For it is not necessary, as we have already seen, that A.’s claim of
exclusive use should be absolute; it is sufficient that it is general.
§ 103. =The Acquisition of Possession.=
Possession is acquired whenever the two elements of _corpus_ and
_animus_ come into coexistence, and it is lost so soon as either of them
disappears. The modes of acquisition are two in number, namely Taking
and Delivery. Taking is the acquisition of possession without the
consent of the previous possessor. The thing taken may or may not have
been already in the possession of some one else, and in either case the
taking of it may be either rightful or wrongful. Delivery, on the other
hand, is the acquisition of possession with the consent and co-operation
of the previous possessor. It is of two kinds, distinguished by English
lawyers as actual and constructive.[243] Actual delivery is the transfer
of _immediate_ possession; it is such a physical dealing with the thing
as transfers it from the hands of one person to those of another. It is
of two kinds, according as the _mediate_ possession is or is not
retained by the transferor. The delivery of a chattel by way of sale is
an example of delivery without any reservation of mediate possession;
the delivery of a chattel by way of loan or deposit is an instance of
the reservation of mediate possession on the transfer of immediate.
Constructive delivery, on the other hand, is all which is not actual,
and it is of three kinds. The first is that which the Roman lawyers
termed _traditio brevi manu_, but which has no recognised name in the
language of English law. It consists in the surrender of the mediate
possession of a thing to him who is already in immediate possession of
it. If, for example, I lend a book to some one, and afterwards, while he
still retains it, I agree with him to sell it to him, or to make him a
present of it, I can effectually deliver it to him in fulfilment of this
sale or gift, by telling him that he may keep it. It is not necessary
for him to go through the form of handing it back to me and receiving it
a second time from my hands. For he has already the immediate possession
of it, and all that is needed for delivery under the sale or gift is the
destruction of the _animus_ through which mediate possession is still
retained by me.[244]
The second form of constructive delivery is that which the commentators
on the civil law have termed _constitutum possessorium_ (that is to say,
an agreement touching possession). This is the converse of _traditio
brevi manu_. It is the transfer of mediate possession, while the
immediate possession remains in the transferor. Any thing may be
effectually delivered by means of an agreement that the possessor of it
shall for the future hold it no longer on his own account but on account
of some one else. No physical dealing with the thing is requisite,
because by the mere agreement mediate possession is acquired by the
transferee, through the immediate possession retained by the transferor
and held on the other’s behalf. Therefore, if I buy goods from a
warehouseman, they are delivered to me so soon as he has agreed with me
that he will hold them as warehouseman on my account. The position is
then exactly the same as if I had first taken actual delivery of them,
and then brought them back to the warehouse, and deposited them there
for safe custody.[245]
The third form of constructive delivery is that which is known to
English lawyers as attornment.[246] This is the transfer of mediate
possession, while the immediate possession remains outstanding in some
third person. The mediate possessor of a thing may deliver it by
procuring the immediate possessor to agree with the transferee to hold
it for the future on his account, instead of on account of the
transferor. Thus if I have goods in the warehouse of A., and sell them
to B., I have effectually delivered them to B., so soon as A. has agreed
with B. to hold them for him, and no longer for me. Neither in this nor
in any other case of constructive delivery is any physical dealing with
the thing required, the change in the _animus_ of the persons concerned
being adequate in itself.[247]
§ 104. =Possession not essentially the Physical Power of Exclusion.=
According to a widely accepted theory the essence of corporeal
possession is to be found in the physical power of exclusion. The
_corpus possessionis_, it is said, is of two kinds, according as it
relates to the commencement or to the continuance of possession. The
_corpus_ required at the commencement is the present or actual physical
power of using the thing oneself and of excluding all other persons from
the use of it. The _corpus_ required for the retention of a possession
once acquired may, on the other hand, consist merely in the ability to
reproduce this power at will. Thus I acquire possession of a horse if I
take him by the bridle, or ride upon him, or otherwise have him in my
immediate personal presence, so that I can prevent all other persons
from interfering with him. But no such immediate physical relation is
necessary to retain the possession so acquired. I can put the horse in
my stable, or let him run in a field. So long as I can go to him when I
wish, and reproduce at will the original relation of physical power, my
possession has not ceased. To this view of the matter, however, the
following objections may be made.[248]
1. Even at the commencement a possessor need have no physical power of
excluding other persons. What physical power of preventing trespass does
a man acquire by making an entry upon an estate which may be some square
miles in extent? Is it not clear that he may have full possession of
land that is absolutely unfenced and unprotected, lying open to every
trespasser? There is nothing to prevent even a child from acquiring
effective possession as against strong men, nor is possession impossible
on the part of him who lies in his bed at the point of death. If I
stretch a net in the sea, do I not acquire the possession of the fish
caught in it, so soon as they are caught? Yet every other fisherman that
passes by has more power of excluding me than I have of excluding him.
So if I set traps in the forest, I possess the animals which I catch in
them, though there is neither physical presence nor physical power. If
in my absence a vendor deposits a load of stone or timber on my land, do
I not forthwith acquire possession of it? Yet I have no more physical
power over it than any one else has. I may be a hundred miles from my
farm, without having left any one in charge of it; but I acquire
possession of the increase of my sheep and cattle.
In all such cases the assumption of physical power to exclude alien
interference is no better than a fiction. The true test is not the
physical power of preventing interference, but the improbability of any
interference, from whatever source this improbability arises. Possession
is the security of enjoyment, and there are other means of attaining
this security than personal presence or power. It is true that in time
of war the possession of a place must be obtained and defended by cannon
and bayonets; but in the peaceful intercourse of fellow-citizens under
the rule of law, possession can be acquired and retained on much easier
terms and in much simpler fashion. The chances of hostile interference
are determined by other considerations than that of the amount of
physical force at the disposal of the claimant. We have to take account
of the customs and opinions of the community, the spirit of legality and
of respect for rightful claims, and the habit of acquiescence in
established facts. We have to consider the nature of the uses of which
the thing admits, the nature of the precautions which are possibly or
usually taken in respect of it, the opinion of the community as to the
rightfulness of the claim seeking to realise itself, the extent of
lawless violence that is common in the society, the opportunities for
interference and the temptations to it, and lastly but not exclusively
the physical power of the possessor to defend himself against
aggression. If, having regard to these circumstances and to such as
these, it appears that the _animus possidendi_ has so prospered as to
have acquired a reasonable security for its due fulfilment, there is
true possession, and if not, not.
2. In the second place it is by no means clear how it is possible for
possession at its commencement and possession in its continuance to be
made up of different elements. How can it be that possession at its
inception involves actual physical power of exclusion, while in its
continuance it involves merely the power of reproducing this primary
relationship? Possession is a continuing _de facto_ relation between a
person and a thing. Surely, therefore, it must from beginning to end
have the same essential nature. What is that nature? Savigny’s theory
affords no answer. It tells us, at the most, how possession begins, and
how it ceases; but we wish to know what it essentially and continuously
_is_.
3. Thirdly and lastly, the theory which we are considering is
inapplicable to the possession of incorporeal things. Even if it
successfully explained the possession of land, it would afford no
explanation of the possession of a right of way or other servitude. Here
there is neither exclusion nor the power of exclusion. It is, on the
contrary, the possessor of the servient land who has the physical power
of excluding the possessor of the servitude. If I possess an easement of
light, what power have I to prevent its infringement by the building
operations of my neighbour? It is true that this is not a conclusive
objection to Savigny’s analysis; for it remains perfectly open to him to
rejoin that possession in its proper sense is limited to the possession
of corporeal things, and that its extension to incorporeal things is
merely analogical and metaphorical. The fact remains, however, that this
extension has taken place; and, other things being equal, a definition
of possession which succeeds in including both its forms is preferable
to one which is forced to reject one of them as improper.
§ 105. =Incorporeal Possession.=
Hitherto we have limited our attention to the case of corporeal
possession. We have now to consider incorporeal, and to seek the generic
conception which includes both these forms. For I may possess not the
land itself, but a way over it, or the access of light from it, or the
support afforded by it to my land which adjoins it. So also I may
possess powers, privileges, immunities, liberties, offices, dignities,
services, monopolies. All these things may be possessed as well as
owned. They may be possessed by one man, and owned by another. They may
be owned and not possessed, or possessed and not owned.
Corporeal possession is, as we have seen, the continuing exercise of a
claim to the exclusive use of a material object. Incorporeal possession
is the continuing exercise of a claim to anything else. The thing so
claimed may be either the non-exclusive use of a material object (for
example, a way or other servitude over a piece of land) or some interest
or advantage unconnected with the use of material objects (for example a
trade-mark, a patent, or an office of profit).
In each kind of possession there are the same two elements required,
namely the _animus_ and the _corpus_. The _animus_ is the claim—the
self-assertive will of the possessor. The _corpus_ is the environment of
fact in which this claim has realised, embodied, and fulfilled itself.
Possession, whether corporeal or incorporeal, exists only when the
_animus possidendi_ has succeeded in establishing a continuing practice
in conformity to itself. Nor can any practice be said to be continuing,
unless some measure of future existence is guaranteed to it by the facts
of the case. The possession of a thing is the _de facto_ condition of
its continuous and secure enjoyment.
In the case of corporeal possession the _corpus possessionis_ consists,
as we have seen, in nothing more than the continuing exclusion of alien
interference, coupled with ability to use the thing oneself at will.
Actual use of it is not essential. I may lock my watch in a safe,
instead of keeping it in my pocket; and though I do not look at it for
twenty years, I remain in possession of it none the less. For I have
continuously exercised my claim to it, by continuously excluding other
persons from interference with it. In the case of incorporeal
possession, on the contrary, since there is no such claim of exclusion,
actual continuous use and enjoyment is essential, as being the only
possible mode of exercise. I can acquire and retain possession of a
right of way only through actual and repeated use of it. In the case of
incorporeal things continuing non-use is inconsistent with possession,
though in the case of corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a _right_,
and corporeal possession is distinguished from it as the possession of a
_thing_. The Roman lawyers distinguish between _possessio juris_ and
_possessio corporis_, and the Germans between _Rechtsbesitz_ and
_Sachenbesitz_. Adopting this nomenclature, we may define incorporeal
possession as the continuing exercise of a right, rather than as the
continuing exercise of a claim. The usage is one of great convenience,
but it must not be misunderstood. To exercise a right means to exercise
a claim _as if it were a right_. There may be no right in reality; and
where there is a right, it may be vested in some other person, and not
in the possessor. If I possess a way over another’s land, it may or may
not be a _right_ of way; and even if it is a right of way, it may be
owned by some one else, though possessed by me. Similarly a trade-mark
or a patent which is possessed and exercised by me may or may not be
legally valid; it may exist _de facto_ and not also _de jure_; and even
if legally valid, it may be legally vested not in me, but in
another.[249]
The distinction between corporeal and incorporeal possession is clearly
analogous to that between corporeal and incorporeal ownership. Corporeal
possession, like corporeal ownership, is that of a thing; while
incorporeal possession, like incorporeal ownership, is that of a right.
Now in the case of ownership we have already seen that this distinction
between things and rights is merely the outcome of a figure of speech,
by which a certain kind of right is identified with the material thing
which is its object. A similar explanation is applicable in the case of
possession. The possession of a piece of land means in truth the
possession of the exclusive use of it, just as the possession of a right
of way over land means the possession of a certain non-exclusive use of
it. By metonymy the exclusive use of the thing is identified with the
thing itself, though the non-exclusive use of it is not. Thus we obtain
a distinction between the possession of things and the possession of
rights, similar to that between the ownership of things and the
ownership of rights.[250]
In essence, therefore, the two forms of possession are identical, just
as the two forms of ownership are. Possession in its full compass and
generic application means _the continuing exercise of any claim or
right_.
§ 106. =Relation between Possession and Ownership.=
“Possession,” says Ihering,[251] “is the objective realisation of
ownership.” It is in _fact_ what ownership is in _right_. Possession is
the _de facto_ exercise of a claim; ownership is the _de jure_
recognition of one. A thing is owned by me when my claim to it is
maintained by the will of the state as expressed in the law; it is
possessed by me, when my claim to it is maintained by my own
self-assertive will. Ownership is the guarantee of the law; possession
is the guarantee of the facts. It is well to have both forms of security
if possible; and indeed they normally coexist. But where there is no
law, or where the law is against a man, he must content himself with the
precarious security of the facts. Even when the law is in one’s favour,
it is well to have the facts on one’s side also. _Beati possidentes_.
Possession, therefore, is the _de facto_ counterpart of ownership. It is
the external form in which rightful claims normally manifest themselves.
The separation of these two things is an exceptional incident, due to
accident, wrong, or the special nature of the claims in question.
Possession without ownership is the body of fact, uninformed by the
spirit of right which usually accompanies it. Ownership without
possession is right, unaccompanied by that environment of fact in which
it normally realises itself. The two things tend mutually to coincide.
Ownership strives to realise itself in possession, and possession
endeavours to justify itself as ownership. The law of prescription
determines the process by which, through the influence of time,
possession without title ripens into ownership, and ownership without
possession withers away and dies.[252]
Speaking generally, ownership and possession have the same
subject-matter. Whatever may be owned may be possessed, and whatever may
be possessed may be owned. This statement, however, is subject to
important qualifications. There are claims which may be realised and
exercised in fact without receiving any recognition or protection from
the law, there being no right vested either in the claimant or in any
one else. In such cases there is possession without ownership. For
example, men might possess copyrights, trade-marks, and other forms of
monopoly, even though the law refused to defend those interests as legal
rights. Claims to them might be realised _de facto_, and attain some
measure of security and value from the facts, without any possibility of
support from the law.
Conversely there are many rights which can be owned, but which are not
capable of being possessed. They are those which may be termed
_transitory_. Rights which do not admit of continuing exercise do not
admit of possession either. They cannot be exercised without being
thereby wholly fulfilled and destroyed; therefore they cannot be
possessed. A creditor, for example, does not possess the debt that is
due to him; for this is a transitory right which in its very nature
cannot survive its exercise. But a man may possess an easement over
land, because its exercise and its continued existence are consistent
with each other. It is for this reason that obligations generally (that
is to say, rights _in personam_ as opposed to _rights in rem_) do not
admit of possession. It is to be remembered, however, that _repeated_
exercise is equivalent in this respect to _continuing_ exercise. I may
possess a right of way through repeated acts of use, just as I may
possess a right of light or support through continuous enjoyment.
Therefore even obligations admit of possession, provided that they are
of such a nature as to involve a series of repeated acts of performance.
We may say that a landlord is in possession of his rents, an annuitant
of his annuity, a bondholder of his interest, or a master of the
services of his servant.[253]
We may note finally that, although incorporeal possession is possible in
fact of all continuing rights, it by no means follows that the
recognition of such possession, or the attribution of legal consequences
to it, is necessary or profitable in law. To what extent incorporeal
possession exists in law, and what consequences flow from it, are
questions which are not here relevant, but touch merely the details of
the legal system.
§ 107. =Possessory Remedies.=
In English law possession is a good title of right against any one who
cannot show a better. A wrongful possessor has the rights of an owner
with respect to all persons except earlier possessors and except the
true owner himself. Many other legal systems,[254] however, go much
further than this, and treat possession as a provisional or temporary
title even against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person whatever,
simply on the ground of his possession. Even the true owner, who retakes
his own, may be forced in this way to restore it to the wrongdoer, and
will not be permitted to set up his own superior title to it. He must
first give up possession, and then proceed in due course of law for the
recovery of the thing on the ground of his ownership. The intention of
the law is that every possessor shall be entitled to retain and recover
his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even
against ownership are called _possessory_, while those available for the
protection of ownership itself may be distinguished as _proprietary_. In
the modern and medieval civil law the distinction is expressed by the
contrasted terms _petitorium_ (a proprietary suit) and _possessorium_ (a
possessory suit).
This duplication of remedies, with the resulting provisional protection
of possession, has its beginnings in Roman law. It was taken up into the
canon law, where it received considerable extensions, and through the
canon law it became a prominent feature of medieval jurisprudence. It is
still received in modern Continental systems; but although well known to
the earlier law of England, it has been long since rejected by us as
cumbrous and unnecessary.
There has been much discussion as to the reasons on which this
provisional protection of possession is based. It would seem probable
that the considerations of greatest weight are the three following.
1. The evils of violent self-help are deemed so serious that it must be
discouraged by taking away all advantages which any one derives from it.
He who helps himself by force even to that which is his own must restore
it even to a thief. The law gives him a remedy, and with it he must be
content. This reason, however, can be allowed as valid only in a
condition of society in which the evils and dangers of forcible
self-redress are much more formidable than they are at the present day.
It has been found abundantly sufficient to punish violence in the
ordinary way as a criminal offence, without compelling a rightful owner
to deliver up to a trespasser property to which he has no manner of
right, and which can be forthwith recovered from him by due course of
law. In the case of chattels, indeed, our law has not found it needful
to protect possession even to this extent. It seems that an owner who
retakes a chattel by force acts within his legal rights. Forcible entry
upon land, however, is a criminal offence.
2. A second reason for the institution of possessory remedies is to be
found in the serious imperfections of the early proprietary remedies.
The procedure by which an owner recovered his property was cumbrous,
dilatory, and inefficient. The path of the claimant was strewn with
pitfalls, and he was lucky if he reached his destination without
disaster. The part of plaintiff in such an action was one of grave
disadvantage, and possession was nine points of the law. No man,
therefore, could be suffered to procure for himself by violence the
advantageous position of defendant, and to force his adversary by such
means to assume the dangerous and difficult post of plaintiff. The
original position of affairs must first be restored; possession must
first be given to him who had it first; then, and not till then, would
the law consent to discuss the titles of the disputants to the property
in question. Yet however cogent such considerations may have been in
earlier law, they are now of little weight. With a rational system of
procedure the task of the plaintiff is as easy as that of the defendant.
The law shows no favour to one rather than to the other.
3. A third reason for possessory remedies, closely connected with the
second, is the difficulty of the proof of ownership. It is easy to prove
that one has been in possession of a thing, but difficult (in the
absence of any system of registration of title) to prove that one is the
owner of it. Therefore it was considered unjust that a man should be
allowed by violence to transfer the heavy burden of proof from his own
shoulders to those of his opponent. Every man should bear his own
burden. He who takes a thing by force must restore it to him from whom
he has taken it; let him then prove, if he can, that he is the owner of
it; and the law will then give to him what it will not suffer him to
take for himself. But English law has long since discovered that it is
possible to attain this end in a much more satisfactory and reasonable
way. It adjusts the burden of proof of ownership with perfect equity,
without recourse to any such anomaly as the protection of the possessor
against the owner. This it does by the operation of the three following
rules:
1. Prior possession is _prima facie_ proof of title. Even in the
ordinary proprietary action a claimant need do nothing more than prove
that he had an older possession than that of the defendant; for the law
will presume from this prior possession a better title. _Qui prior est
tempore potior est jure._
2. A defendant is always at liberty to rebut this presumption by proving
that the better title is in himself.
3. A defendant is not allowed to set up the defence of _jus tertii_, as
it is called; that is to say, he will not be heard to allege, as against
the plaintiff’s claim, that neither the plaintiff nor he himself, but
some third person, is the true owner. Let every man come and defend his
own title. As between A. and B. the right of C. is irrelevant.
By the joint operation of these three rules the same purpose is effected
as was sought in more cumbrous fashion by the early duplication of
proprietary and possessory remedies.[255]
SUMMARY OF CHAPTERS XIII. AND XIV.
Possession { In fact—possessio naturalis.
{ In law—possessio civilis.
Possession in law { Seisin
{ Possession.
Possession { Corporeal—possessio corporis—Sachenbesitz.
{ Incorporeal—possessio juris—Rechtsbesitz.
Corporeal possession—the continuing exercise of a claim to the exclusive
use of a material thing.
Elements of corporeal possession { Animus sibi habendi.
{ Corpus.
Animus sibi habendi:
1. Not necessarily a claim of right.
2. Must be exclusive.
3. Not necessarily a claim to use as owner.
4. Not necessarily a claim on one’s own behalf.
5. Not necessarily specific.
Corpus—the effective realisation of the animus in a security for enjoyment.
Elements of the corpus:
1. A relation of the possessor to other persons, amounting to a
security for their non-interference.
The grounds of such security:
1. Physical power.
2. Personal presence.
3. Secrecy.
4. Custom.
5. Respect for rightful claims.
6. Manifestation of the animus.
7. Protection afforded by other possessions.
The rights of a finder.
2. A relation of the possessor to the thing possessed, amounting
to a security for the use of the thing at will.
Possession { Immediate—without the intervention of another person.
{ Mediate—through or by means of another person.
Mediate possession { 1. Through servants or agents.
{ 2. Through bailees or tenants at will.
{ 3. Through persons claiming temporary possession
{ for themselves.
The relation between the mediate and the immediate possessor.
The exclusiveness of possession.
Exceptional instances of duplicate possession:
1. Mediate and immediate possession.
2. Possession in common.
3. Corporeal and incorporeal possession.
The acquisition of possession:
{ 1. Taking
{ 2. Delivery { Actual
{ { Traditio brevi manu.
{ Constructive { Constitutum possessorium.
{ Attornment.
Possession not essentially the physical power of exclusion.
Incorporeal possession:
Its nature—the continuing exercise of any claim, save one to the
exclusive use of a corporeal thing.
Its relation to corporeal possession.
The generic conception of possession.
The relation between possession and ownership.
Possession the de facto exercise of a claim.
Ownership the de jure recognition of one.
The identity of the objects of ownership and possession.
Exceptions:
1. Things which can be possessed, but cannot be owned.
2. Things which can be owned, but cannot be possessed.
Possessory remedies.
1. Their nature.
2. Their objects.
3. Their exclusion from English law.