Jurisprudence

§ 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.

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.