 Section 18 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by Mike Overby, Parkland, Washington. Jurisprudence by John Salmond. Chapter 12. Ownership. Section 86. The Definition of Ownership. Ownership, in its most comprehensive signification, denotes the relationship between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means, in truth, to own a particular kind of right in a land, namely, the fee simple of it. Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in-ram or in-personum, in-ray propria, or in-ray aliena. I may own a debt, or a mortgage, or share in a company, or money in the public funds, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned, and nothing can be owned except a right. Every man is the owner of the rights which are his. Ownership, in its generic sense, as the relation in which a person stands to any right vested in him, is opposed to two other possible relations between a person and a right. It is opposed, in the first place, to possession. This very difficult, juridical conception will be considered by us in the succeeding chapter. We shall see that the possession of a right, posessio, juris, rect pessits, is the de facto relation of continuing exercise and enjoyment, as opposed to the de jour relation of ownership. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way, or other casement appartent to it. Or he may own a right without possessing it. Or, finally, ownership and possession may be united, as indeed they usually are, the de jour and the de facto relations being coexistent and coincident. The ownership of a right is, in the second place, opposed to the encumbrance of it. The owner of the right is he in whom the right itself is vested. While the encumbrancer of it is he in whom it is vested, not the right itself, but some adverse, dominant, and limiting right in respect of it. A, may be the owner of property B, the lessee of it, C, the sublessee, D, the first morcage, E, the second morcage, and so on indefinitely. Legal nomenclature, however, does not simply supply separate names for each distinct kind of an encumbrancer. There is no distinctive title, for example, by which we may distinguish from the owner of the property him who has an easement over it or the benefit of a covenant which runs with it. Although encumbrance is thus opposed to ownership, every encumbrant seer is nevertheless himself the owner of the encumbrance. The morcage of the land is the owner of the morcage. The lessee of the land is the owner of the lease. The morcage of the morcage is the owner of the sub-morcage. That is to say, he in whom an encumbrance is vested stands in a definite relation not merely to it, but also to the right encumbrant by it. Considered in relation to the latter, he is an encumbrancer, but considered in relation to the former, he is himself an owner. Ownership is of various kinds, and the following distinctions are of sufficient importance and interest to deserve special examination. 1. Corporal and incorporeal ownership. 2. Soul ownership and co-ownership. 3. Trust ownership and beneficial ownership. 4. Legal and equitable ownership. 5. Vested and contingent ownership. Section 87. Corporal and incorporeal ownership. Although the true subject matter of ownership is in all cases a right, a very common form of speech enables us to speak of the ownership of material things. We speak of owning, acquiring, or transferring, not rights in land or chattels, but in the land or chattels themselves. That is to say, we identify by way of metonymy the right with the material thing which is the object. This figure of speech is no less convenient than familiar. The concrete reference to the material object relieves us from the strain of abstract thought. Rights are dim abstractions while material things are visible realities and it is easier to think and speak of the latter than of the former, even though the substitution is a mere figure of speech. This device, moreover, is an aid to brevity, no less than to ease of comprehension. This figurative identification of a right with its object is, however, not always permissible. I may be said to own the money in my hand, but as to that which is due to me I own not the money, but a right to it. In the one case I own the material coins, in the other the immaterial debt, or choose in action. So I own my land, but merely a right of way over the land of my neighbor. If we look, therefore, no deeper than the mere usages of speech, it would seem as if the subject matter of ownership were sometimes a material object and at other times a right. This, of course, would be a logical absurdity. Ownership may conceivably be, in all cases, a relation to a material object, or it may in all cases be a relation to a right. But it cannot be sometimes the one and sometimes the other. So long as we remember that the ownership of a material thing is nothing more than a figurative substitute for the ownership of a particular kind of right in a thing, the usage is one of great convenience. But so soon as we attempt to treat it as anything more than a figure of speech, it becomes a fertile source of confusion of thought. In what cases, then, do we use this figure of speech? What is it that determines whether we do or do not identify a right with its object? How is the line drawn between corporeal and incorporeal ownership? The usage is to some extent arbitrary and uncertain. The application of figurative language is a matter of not of logic, but of variable practice and opinion. Speaking generally, however, we may say that the ownership of a material thing means the ownership of a ju and re propria in respect of that thing. No man is said to own a piece of land or a channel if his right over it is merely an encumbrance of some more general right vested in someone else. The ownership of a ju and re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am not said to own a channel merely because I own the right to have it transferred to me or because I own a lien over it or a right. I am not said to own a channel merely because I own a right to have it transferred to me or because I own a lien over it or a right to the temporary use of it. When, on the other hand, a right is not a mere encumbrance of another right, when it is a self-existent ju and re propria, it is identified with the material thing which is its subject matter. It is not difficult to perceive the origin and reason of this usage of speech. In its full and normal compass, a ju and re propria over a material object is a right to the entirety of the lawful uses of that object. It is the general right of use and disposal, all ju and re aliena being merely special and limited rights derogating from it in special respects. It is only this absolute and comprehensive right, the universal ju, that is identified with its object, or it is in some sense coincident with its object and exhausts the juridical significance of it. It is the greatest right which can exist in respect of the thing, including all lesser rights within itself. Who owns it may therefore conveniently be said to own the thing itself. We have said that in its full and normal compass, corporeal ownership is the ownership of a right to the entirety of the lawful uses of a corporeal thing. This compass, however, may be limited to any extent by the adverse influences of ju and re aliena vested in other persons. The right of the owner of a thing may be all but eaten up by the dominant rights of the lesses, mortgages, and other encumbrancies. His ownership may be reduced to a mere name rather than a reality, yet he nonetheless remains the owner of the thing, while all others own nothing more than rights over it. For he still owns the ju and re propria, which, were all encumbrancies removed from it, would straight away expand to its normal dimensions as the universal ju of general and permanent use. He then is the owner of a material object who owns a right to the general or residuary uses of it, after the deduction of all special and limited rights of use vested by way of encumbrancy in other persons. What, then, is the name of the right which we thus identify for convenience of speech with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately, for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward land term ju and re propria, no other name for it than ownership itself. This is a use of terms which is quite different from that hitherto considered by us. Ownership, as a particular kind of right, must be clearly distinguished from ownership as a particular kind of relation to rights of all descriptions. We cannot class together the right of ownership and the ownership of a right. This use of the term, to denote a right, is the natural outcome of the figurative use of it already considered. When we not only speak of the ownership of land, but interpret such language liberally, it is clear that ownership must be taken as the name of the right which the owner has in the land. Closely connected with the distinction between corporeal and incorporeal ownership is that between corporeal and incorporeal things. The term thing, re, chose, sash, is used in three distinct senses by legal writers. One, in its first and simplest application, it means merely a material object, regarded as the subject matter of a right. According to this use, some rights are rights to or over things, and some are not. The owner of a house owns a thing, the owner of a patent does not. In a second and wider sense, the term thing includes every subject matter of a right, whether a material object or not. In this signification, every right is a right in or to some thing. A man's life, reputation, health, and liberty are things in law, no less than are his land and chattels. Things in this sense are either material or immaterial, but the distinction thus indicated must not be confounded with that now to be explained between things corporeal and incorporeal. Three, in a third and last application, the term thing means whatever a man owns is part of his estate or property. It is any subject matter of ownership within the sphere of proprietary or valuable rights. Now, we have already seen that according to the current usage of figurative speech, ownership is sometimes that of a material object and sometimes that of a right. Things, therefore, as the objects of ownership, are of two kinds also. A corporeal thing, res corporealis, is the subject matter of corporeal ownership. That is to say, a material object. An incorporeal thing, res incorporealis, is the subject matter of incorporeal ownership. That is to say, it is any proprietary right except that right of full dominion over a material object, which, as already explained, is figuratively identified with the object itself. If I own a field and a right of way over another, my field is a res corporealis, and my right of way is a res incorporealis. If I own a pound in my pocket and a right to receive another from my debtor, the first pound is a thing corporeal, and the right to receive the second is a thing incorporeal. It is that variety of the latter, which is called, in the technical language of English law, a chosen action, or thing in action, while the pound in my pocket is a chose, or thing in possession. It is clear that if literally interpreted, this distinction is illogical and absurd. We cannot treat in this way rights and the objects of rights as two species of one genus. If we use the term thing in each case to mean a right, then the right of an owner of land is just as incorporeal as is that of his tenant. On the other hand, if the term is to be taken in each case to mean the object of a right, then the object of the tenant's rights is just as corporeal as is that of his landlord. The distinction between corporeal and incorporeal things is based on the same figure of speech as is that between corporeal and incorporeal ownership. Both distinctions become intelligible, so soon as we recognize the metonymy involved in the substitution of the subject matter of a right for the right itself. Section 89, Soul Ownership and Co-Ownership As a general rule, a right is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have the same right vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels, which constitute their stock and trade, of the lease of the premises on which their business is conducted, and of the debts owing to them by their consumers. It is not correct to say that a right owned by co-owners is divided between, each of them owning a separate part. The right is an undivided unity, which is vested at the same time in more than one person. If two partners have at their bank a credit balance of 1,000 pounds, there is one debt of 1,000 pounds owing by the bank to both of them at once, not two separate debts of 500 pounds to each of them individually. Each partner is entitled to the whole sum, just as each would owe to the bank the whole of the firm's overdraft. The several ownership of a part is a different thing from the co-ownership of the whole, so soon as each of the two co-owners begins to own a part of the right instead of the whole of it. The co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of the right owned. Co-ownership, like all forms of duplicate ownership, is possible only so far as the law makes provision for harmonizing in some way the conflicting claims of the different owners per intersay. In the case of co-owners, the title of one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment. Co-ownership may assume different forms by virtue of the different incidents attached to it by law. Its two chief kinds, in English law, are distinguished as ownership in common and joint ownership. The most important difference between these relates to the effect of the death of one of the co-owners. In ownership in common, the right of a dead man descends to his successors, like any other inheritable right. But on the death of one of the joint owners, his ownership dies with him, and the survivor becomes the sole owner by virtue of this right of ownership or juacrescending. Trust and Beneficial Ownership A trust is a very important and curious instance of duplicate ownership. Trust property is that which is owned by two persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other. The former is called the trustee, and his ownership is trust ownership. The latter is called the beneficiary, and his is beneficial ownership. The trustee is destitute of any right of beneficial enjoyment of the trust property. His ownership, therefore, is a matter of form rather than of substance, and nominal rather than real. If we have regard to the essence of the matter rather than to the form of it, a trustee is not an owner at all, but a mere agent, upon whom the law has conferred the power and imposed the duty of administering the property of another person. In legal theory, however, he is not a mere agent, but an owner. He is a person to whom the property of someone else is fictitiously attributed by the law to the intent that the rights and powers thus vested in a nominal owner shall be used by him on behalf of the real owner. As between trustee and beneficiary, the law recognizes the truth of the matter. As between these two, the property belongs to the latter and not to the former. But as between the trustee and third persons, the fiction prevails. The trustee is clothed with the rights of his beneficiary, and is so enabled to personate or represent him in dealings with the world at large. The purpose of trusteeship is to protect the rights and interests of persons who, for any reason, are unable effectively to protect them for themselves. The law vests those rights and interests for safe custody, as it were, in some other person who is capable of guarding them in dealing with them, and who is placed under a legal obligation to use them for the benefit of him to whom they in truth belong. The chief classes of persons in whose behalf a protection of trusteeship is called for are foreign number. In the first place, property may belong to persons who are not yet born, and in order that it may be adequately safeguarded and administered, it is commonly vested in the meantime in trustees who hold and deal with it on account of its unborn owners. In the second place, similar protection is required for the property of those who lie under some incapacity in respect to the administration of it, such as infancy, lunacy, or absence. Thirdly, it is expedient that property in which large numbers of persons are interested in commons should be vested in trustees. The complexities and difficulties which arise from co-ownership become so great, so soon as the number of co-owners ceases to be small, that it is essential to avoid them, and one of the most effective devices for this purpose is that scheme of duplicate ownership which we term a trust. Fourthly, when persons have conflicted interests in the same property, for example an owner and an encumbrancer, or different kinds of encumbrancers, it is often advisable that the property should be vested in trustees, whose power and duty it is to safeguard the interests of each of those persons against the conflicting claims of the others. A trust is to be distinguished from two other relations which resemble it. It is to be distinguished, in the first place, from a mere contractual obligation to deal with one's property on behalf of someone else. A trust is more than an obligation to use one's property for the benefit of another. It is an obligation to use it for the benefit of another in whom it is already concurrently vested. The beneficiary has more than a mere personal right against the trustee to the performance of the obligations of the trust. He is himself an owner of the trust property. That which the trustee owns, the beneficiary owns also. If the latter owned nothing saved the personal obligation between the trustee and himself, there would be no trust at all. Thus, if a husband gratuitously covenants with his wife to settle certain property upon her, he remains the sole owner of it until he has actually transferred it in fulfillment of his contract. And in the meantime, the wife owns nothing saved the contractual obligation created by the covenant. There is therefore no trust. If, on the other hand, the husband declares himself a trustee of the property for his wife, the effect is very different. Here also he is under a personal obligation to transfer the property to her, but this is not all. The beneficial ownership of the property passes to the wife forthwith, yet the ownership of the husband is not destroyed. It is merely transformed into a trust ownership consistent with the concurrent beneficial title of his wife. In the second place, a trust is to be distinguished from the relation in which an agent stands toward the property in which he administers on behalf of his principal. In substance, indeed, as already indicated, those two relations are identical, but in form and in legal theory, they are essentially different. In agency, the property is vested solely in the person on whose behalf the agent acts, but in trusteeship it is vested in the trustee himself, no less than in the beneficiary. A trustee is an agent for the administration of property, who is at the same time the nominal owner of the property so administered by him. A trust is created by any act or event which separates the trust ownership of any property from the beneficial ownership of it and vests them in different persons. Thus the direct owner of property may declare himself a trustee for someone else, who thereupon becomes the beneficial owner, or the direct owner may transfer the property to someone else to hold it in trust for a third. Conversely, a trust is destroyed by any act or event which reunites in the same hands the two forms of ownership which have become thus separated. The trustee, for example, may transfer the property to the beneficiary, who then becomes the direct owner, or the beneficiary may transfer it to his trustee, with the like result. Trust ownership and beneficial ownership are independent of each other in their destination and disposition. Either of them may be transferred while the other remains unaffected. The trustee may assign to another who thereupon becomes the trustee and is stead while the beneficiary remains the same, or the beneficiary may assign to another while the trust ownership remains where it was. In like manner, either kind of ownership may be independently encumbered. The trustee may, in the pursuance of the powers of the trust, lease or mortgage the property without the concurrence of the beneficiary, and the beneficiary may deal in the same way with his beneficial ownership independently of the trustee. Whenever the beneficial ownership has been encumbered, either by the creator of the trust or by the beneficial owner himself, the trustee holds the property not only on behalf of the beneficial owner, but also on the behalf of the beneficial encumbrancers. That is to say, the relation of trusteeship exists between the trustee and all persons beneficially interested in the property, either as owners or encumbrancers. Thus, if property is transferred to A, in trust for B for life, with remainder to C, A is a trustee not merely for C, the beneficial owner, but also for B, the beneficial encumbrancer. Both are beneficiaries of the trust, and between the trustee and each of them there exists the bond of trust obligation. Section 91, Legal and Equitable Ownership Closely connected, but not identical with the distinction between trust and beneficial ownership, is that between legal and equitable ownership. One person may be the legal and another the equitable owner of the same thing at the same time. Legal ownership is that which has its origins in the rules of the common law, while equitable ownership is that which proceeds from rules of equity divergent from the common law. The courts of common law refused to recognize equitable ownership and denied that the equitable owner was an owner at all. The court of Chancery adopted a very different attitude. Here, the legal owner was recognized no less than the equitable, but the former was treated as the trustee for the latter. Chancery vindicated the prior claims of equity, not by denying the existence of the legal owner, but by taking from him by means of a trust the beneficial enjoyment of his property. The fusion of law and equity, affected by the Judicature Act 1873, has not abolished the distinction. It has simply extended the doctrines of the Chancery to the courts of common law, and as equitable ownership did not extinguish or exclude legal ownership and Chancery, it does not do so now. The distinction between legal and equitable ownership is not identical with that mentioned in a previous chapter as existing between legal and equitable rights. Those two forms of ownership would still exist even if all rights were legal. The equitable ownership of legal right is a different thing from the ownership of an equitable right. Law and equity are discordant not merely as to the existence of rights, but also to the ownership of the rights which they both recognize. When a debt is verbally assigned by A to B, A remains the legal owner of it nonetheless, but B becomes the equitable owner of it. But there are not for that reason two debts. There is only one as before, though it has now two owners. So if A, the legal owner of a share in a company, makes a declaration of trust in favor of B, B becomes forthwith the equitable owner of the share. But it is the same share as before, and not another. The thing which he thus equitably owns is a legal right, which is at the same time legally owned by A. Similarly, the ownership of an equitable mortgage is a different thing from the equitable ownership of a legal mortgage. Nor is the distinction between legal and equitable ownership merely equivalent to that between trust and beneficial ownership. It is true that, whenever the legal estate is in one man, and the equitable estate in another, there is a trust. A legal owner is always a trustee for the equitable owner, if there is one. But an equitable owner may himself be merely a trustee for another person. A man may settle upon trusts, his equitable interest in a trust fund, or his equitable estate in his mortgaged land. In such a case, neither trustee nor beneficiary will have anything more than equitable ownership. If an equitable owner can be a trustee, can a legal owner be a beneficiary? As the law now stands, he cannot. But this is mere accident of historical development, due to the fact that the courts of common law refuse to recognize trusts at all. There is no more theoretical difficulty in allowing that a trustee and his beneficiary may both be legal owners than in allowing that they may both be equitable owners. Had the courts of common law worked out a doctrine of trusts for themselves, this twofold legal ownership would have actually existed. The practical importance of the distinction between legal and equitable ownership is the same as that already indicated as pertaining to distinction between legal and equitable rights. Vested and contingent ownership Ownership is either vested or contingent. It is vested when the owner's title is already perfect. It is contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment of some condition. In the former case, he owned the right absolutely. In the latter, he owns it merely conditionally. In the former case, the investigative fact, from which he derives the right, is complete in all its parts. In the latter, it is incomplete by reason of the absence of some necessary element, which is nevertheless capable of being supplied in the future. In the meantime, therefore, his ownership is contingent, and it will not become vested until the necessary condition is fulfilled. A testator, for example, may leave property to his wife for her life, and on her death to A, if he is then alive, but if A is then dead to B. A and B are both owners of the property in question, but the ownership is merely contingent. That of A is conditional on his surviving the testator's widow, while that of B is conditional on the death of A in the widow's lifetime. The contingent ownership of a right does not necessarily involve his contingent existence. It need not be a contingent right, because it is contingently owned. Shares and other choices in action may have an absolute existence, though the ownership of them may be contingently and alternately in A and B. Money in a bank may be certainly owing to someone, though it may be depend on a condition, whether it is owing to C or D. On the other hand, it may be that the right is contingent in respect of its existence, no less than in respect of its ownership. This is so, wherever there is no alternative owner, and when, therefore, the right will belong to no one, unless it becomes vested in the contingent owner by the fulfillment of the condition. It is to be noticed that the contingent ownership of a right is something more than the simple chance or possibility of becoming the owner of it. It is more than a mere specs acquisitionus. I have no contingent ownership of a piece of land merely because I may buy it, if I so wish, or because per adventure its owner may leave it to me by his will. Contingent ownership is based not upon the mere possibility of future acquisition, but upon the present existence of an inchoate or incomplete title. The conditions on which contingent ownership depends are termed conditions precedent to distinguish them from another kind known as conditions subsequent. A condition precedent is one by the fulfillment of which an inchoate title is completed. A condition subsequent is one on the fulfillment of which a title already completed is extinguished. In the former case, I acquire absolutely what I have already acquired conditionally. In the latter case, I lose absolutely what I have already lost conditionally. A condition precedent involves an inchoate or incomplete investigative fact. A condition subsequent involves an incomplete or inchoate divestitive fact. He who owns property subject to a power of sale or power of appointment vested in someone else owns it subject to a condition subsequent. His title is complete, but there is already in existence an incomplete divestive fact, which may one day complete itself and cut short his ownership. It is to be noticed that ownership subject to a condition subsequent is not contingent but vested. The condition is attached not to the commencement of vested ownership, but to the continuance of it. Contingent ownership is that which is not yet vested, but may become so in the future, while ownership subject to a condition subsequent is already vested, but may be divested and destroyed in the future. In other words, ownership subject to a condition subsequent is not contingent but determinable. It is ownership already vested but liable to premature determination by the completion of a divestive fact, which is already present in part. It is clear that two persons may be contingent owners of the same right at the same time. The ownership of each is alternative to that of the other. The ownership of one is destined to become vested, while that of the other is appointed to destruction. Similarly, the vested ownership of one man may coexist with the contingent ownership of another, for the event which in the future will best the right in one, will at the same time divest it from the other. Thus, a testator may leave property to his wife, with a provision that if she marries again, she shall forfeit it in favor of its children. His widow will have the vested ownership of the property, and his children the contingent ownership at the same time. Her marriage is a condition subsequent in the respect of her own vested ownership and a condition precedent in respect to the contingent ownership of the children. Summary Ownership, the relation between a person and a right vested in him. Ownership, possession, encumbrance. The three beneficial relations between persons and rights. The kinds of ownership. One, corporeal and incorporeal. The ownership of things and that of rights. The ownership of rights and the right of ownership. Res corporalis and res incoperalis. Different uses of the term res or thing. A, a material object. B, the object of a right. Material and immaterial things. C, the object of ownership. Corporeal and incorporeal things. Two, sole ownership and co-ownership. Joint ownership and ownership in common. Three, trust and beneficial ownership. The nature of trusts, the purpose of trusts. Four, legal and equitable ownership. Five, vested and contingent ownership. Conditions precedent and subsequent. Contingent and determinable ownership. End of Section 18 Section 19 of Jurisprudence. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Jurisprudence by John Salmond. Chapter 13, Possession Section 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 banknote from a thief or goods from a factor who disposes of them in fraud of his principle. 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 in legal principles and the truth of things. Not everything which is recognized 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 recognizes 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 recognized 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 someone 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 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 harmonize 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 rigor, 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 recognized 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 all together 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. Note, the complexities of the English law are increased by the curious circumstance that two distinct kinds of legal possession are recognized in that system. These are distinguished as season and possession. To a considerable extent they are governed by different rules and have different effects. I may have season of a piece of land but not possession of it or possession but not season or both at once. And in all these cases I may or may not at the same time have possession in fact. The doctrine of season is limited to land. It is one of the curiosities of that most curious 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 season by the owner of land. Without season 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 possessions must be that which amounted to season. A dispossessed owner was deprived of his most effective remedies. He could neither alienate his estate nor leave it by his will. And his heirs inherited after him. The tendency of modern law is to eliminate the whole doctrine of season as an archaic survival of an earlier process of thought and to recognize a single form of legal possession. And note. Section 95. Caporial and Incaporial Possession We have seen in a former chapter that ownership is of two kinds being either caporial or incorporeal. A similar distinction is to be drawn in the case of possession. Caporial possession is the possession of a material object, a house, a farm, a piece of money. Incaporial 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 jour, and yet they may be possessed and enjoyed de facto. Caporial possession is termed in Roman law possessiocopores. Incaporial possession is distinguished as possessiogurus. The possession of a right just as incaporial ownership is the ownership of a right. The Germans distinguish in like fashion sock in besitz, the possession of a material thing, and rekt's besitz, 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 incaporial possession is in reality true possession at all. Some are of opinion that all genuine possession is caporial, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessiocopores and possessiogurus 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 incaporial 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 that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of caporial possession, just as the true idea of ownership is wider than that of caporial 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 differential, which distinguishes possessio capores from possessio jurus. We shall, however, adopt a different course, confining our attention in the first place to possessio capores, and proceeding thereafter to the analysis of possessio jurus 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 caporial possession is so much more important than that of incaporial that it is permissible to treat the latter simply as a supplement to the former rather than as coordinate with it. Section 96 Caporial Possession Caporial 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 though he has acquired it contrary to law. The law condemns his possession as wrongful, but at the same time recognizes that it exists and attributes to it most if not all of the ordinary consequences of possession. 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 realized, 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 possedendi, animus sibi abendi, or animus domini. Episcomer possessionum, so runs a celebrated sentence of the Roman lawyer Paul, capore et animo nece perse animo out perse 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 realized 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 realized itself. A man does not possess a field because he is walking about in it unless he has the intent of the 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 may 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. Section 97. The Animus Posedendi We shall consider separately these two elements in the conception and first of the Animus Posedendi. 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 Abendi 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 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 fulfillment 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, cannot 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 possedendi 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. Three. The animus possedendi need not amount to a claim or intent to use the thing as owner. A tenant, a borrower, or a plegey 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. Four. The animus possedendi 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. Five. The animus possedendi 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 posedendi with respect to its enclosure, and I do not first acquire possession of the check that is inside it when I open the envelope and see it. But if, on the other hand, I buy a cabinet believing it to be empty, whereas it contains money hidden in a secret drawer, I 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. Section 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 realized 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 realization in fact of the animus Sibi Habendi. One of the chief difficulties of possession is that of determining what amounts to such effective realization. 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 realized. 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. One, on the relation of the possessor to other persons. And two, on the relation of the possessor to the thing possessed. We shall consider these two elements of the corpus possessionis separately. Section 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, of the 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 a 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. 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 realized my animus posedendi 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, claim 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 plow 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 realize itself in the facts whether it is rightful or wrongful. Yet its rightfulness or rather a public conviction of 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. In terms of security, de facto and desjure 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 realization 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. 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 than 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 banknotes by laying them upon my doorstep. In the former case the possession 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 in 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 neighbor'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 no sedendi with respect to any such contents but solely with respect to the cabinet itself. Note that this is so in law no less than in fact appears from the following cases. In Bridges vs. Hawksworth a parcel of banknotes 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 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 vs. Moore a banknote was dropped in the shop of the prisoner who on discovering it picked it up and converted it to his own use while 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 Mary vs. Green 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 money not when he innocently bought the bureau but when he fraudulently abstracted the contents of it. In Cartwright vs. Green 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 vs. Mucklow 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 L.W. vs. Brig gas company 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 quote 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 center 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 end quote so in South Staffordshire water company vs. Charmin 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 vs. Hawksworth 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 vs. Delamiri Bridges vs. Hawksworth 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 one, 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 two a second limitation of the right of a finder is that if anyone 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 Charlins 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 Charlin was the first to obtain possession of them he obtained it for his employers and could claim no title for himself three 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 Elwys versus Brigg Gas Company the boat says Chitty J quote 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 end quote 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 authorized to do otherwise by the terms of their lease end note section 100 relation of the possessor to the thing possessed the second element in the corpus possessiones 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 realize itself in both of those relations the necessary relation between the possessor and the thing possessed is 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 mislead 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 passerby will discover and appropriate it End of Section 19 Section 20 of Jurisprudence this is a LibriVox recording while LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kathleen Jurisprudence by John Selmond Chapter 14 Possession Continued Part 1 Section 101 immediate and mediate possession one person may possess a thing for and on account of someone 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 the first is that which I acquire through an agent or servant that is to say through someone 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 warehouse man 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 warehouse man or artisan the immediate possession is in me for the immediate possession is held on my account and my animus nominee is therefore sufficiently realized 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 recognizes 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 hire or tenant at will I do not lose possession of a thing because I have lent it to someone 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 ado security for the use and enjoyment of my property I myself possess whatever is possessed for me on those terms by another there is yet a third form of mediate possession respecting which more doubt may exist but which must be recognized 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 as 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 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 in as much as through the instrumentality of the baili or pledgee who is keeping the thing safe for me I am effectually excluding all other persons from it and have thereby attained as sufficient security for its enjoyment in respect of the effective realization of the animus domini there seems to be no essential difference between entrusting a thing to an agent entrusting it to a baili at will and entrusting it to a baili 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 tomorrow such distinctions are irrelevant and in any alternative my possession as against third persons is unaffected a test of the existence of a true media 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 favor if he desires to acquire a right of way by prescription the 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 and Hague versus West 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 a tournament in Elmore versus Stone 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 versus Wallace 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 baili 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 baili for a fixed term Crompton J referring to Elmore versus Stone says 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 baili is the possession of the bailer 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 bailer and baili pledger and pledgy 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 warehouse man I retain possession as against all other persons because as against them I have left the benefit of the warehouse man's custody but as between the warehouse man and myself he is in possession and not I for as against him I have in no way realized my animus posedindy nor in any way obtained a security of use and enjoyment so in the case of a pledge the deptor continues to possess coiled the world at large but as between deptor and creditor possession is in the latter the deptor's possession is mediate and relative the creditor's is immediate and absolute so also with landlord and tenant bailer and baili 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 if it runs at all will run in favor of the tenant but at the same time it may run in favor of the landlord as against the true owner of the property let us suppose for example that possession for 20 years will in all cases give a good title to land and that A takes wrongful possession of land from X holds it for 10 years and then allows B to have the gratuitous use of it as tenant at will and 10 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 10 years B the tenant will have a good title as against his landlord A for as between these two the possession has been for 20 years in B to put the matter in a general form prescription runs in favor of the immediate against the mediate possessor but in favor of the mediate possessor as against third persons section 102 concurrent possession it was a maximum of the civil law that two persons could not be in possession of the same thing at the same time course and them rem in solidum possidere non as a general proposition this is true for exclusiveness is of the essence of possession to adverse claims exclusive use cannot both be actually realized at the same time claims however which are not adverse and which are not therefore mutually destructive admit of concurrent realization hence there are several possible cases of duplicate possession one mediate and immediate possession coexist in respect of the same thing as already explained to two or more persons may possess the same thing in common just as they may own it in common this is called Composessio by the civilians 3 corporal and incorporeal possession may coexist in respect of the same material object just as corporal 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 section 103 the acquisition of possession possession is acquired whenever the two elements of corpus an 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 someone 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 cooperation of the previous possessor it is of two kinds distinguished by English lawyers as actual and constructive 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 transfer or 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 traditional grubby manu but which has no recognize name in the language of English law it consists in the surrender of the mediate possession of a thing to him who was already an immediate possession of it if for example I lend a book to someone 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 fulfillment 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 a delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me the second form of constructive delivery is that which the commentators on the civil law have turned constituem posessorium that is to say an agreement touching possession this is the converse of traditional brovi manu it is the transfer of mediate possession while the immediate possession remains in the transfer or anything 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 someone 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 held on the other's behalf therefore if I buy goods from a warehouse man they are delivered to me so soon as he has agreed with me that he will hold them as a warehouse man 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 the third form of constructive delivery is that which is known to english as a tournament 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 transfer or thus if I have goods in the warehouse of a and sell them to be I have effectually delivered them to be 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 section 104 possession not essentially the physical power of exclusion according to a widely accepted theory the essence of corporal possession is to be found in the physical power of exclusion the corpus possession is 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 right 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 one 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 an entry upon an estate which may be some square miles an 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 anyone else has I may be a hundred miles from my farm without having left anyone 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 the 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 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 realize itself the extent of lawless violence that is common in this 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 unanimous post-identity has so prospered as to have acquired a reasonable security for its due fulfillment there is true possession and if not, not too, 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 and inclusion 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? Sevigni's theory affords no answer it tells us, at the most how possession begins 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 of 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 neighbor it is true that this is not a conclusive objection to Sevigni'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 the 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 end of section 20 section 21 of jurisprudence this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org recording by Kathleen jurisprudence by John Selmond section 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 in corporeal 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 trademark 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 will of the possessor the corpus is the environment of fact in which this claim has realized embodied and fulfilled itself possession whether corporeal or incorporeal exists only when the animus possedendi has succeeded in establishing a continuing practice and conformity to itself nor can any practice be said to be continuing unless some measure of future existence is to do 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 possessionist consists as we have seen in nothing more than the continuing exclusion of alien interference coupled with the ability to use the thing oneself at will actual use of it is not essential I may lock my watch in the safe instead of keeping it in my pocket and though I do not look at it for 20 years I remain in possession of it nonetheless 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 posessio juris and posessio corporeus and the germans between reichs besitz and zekken besitz adopting this nomenclature we may define in corporeal 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 someone else though possessed by me similarly a trademark 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 the distinction between corporeal and incorporeal possession is clearly anacolous 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 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 section 106 relation between possession and ownership possession says airing is the objective realization of ownership it is in fact what ownership is in right possession is the de facto exercise of the 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 favor it is well to have the facts on one side also viati posidentis 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 realizes itself the two things tend mutually to coincide ownership strives to realize itself in possession and possession endeavors 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 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 realized and exercised in fact without receiving any recognition or protection from the law there being no right vested either in the claimant or in anyone else in such cases there is possession without ownership for example men might possess copyrights trademarks and other forms of monopoly even though the law refused to defend those interests as legal rights claims to them might be realized 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 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 personem 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 rinse an annuant of his annuity a bond holder of his interest or a master of the services of his servant we may note finally that although in corporal 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 in corporal 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 section 107 possessory remedies in English law possession is a good title of right against anyone 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 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 pedatorium a proprietary suit and possessorium a possessory suit this duplication of remedies with the resulting provisional protection of possession as it's beginning 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 the provisional protection of possession is based it would seem probable that the considerations of greatest weight are the three following one 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 offense 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 offense to 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 cumbers, 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 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 with 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 favor to one rather than to the other three a third reason for possessory entities 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 the 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 on just 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 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 one 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 portier est joure two a defendant is always at liberty to rebut this presumption by proving that the better title is in himself three a defendant is not allowed to set up the defense of use tertai as it is called that is to say he will not be heard to allege as against the plaintiffs 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 cumbers fashion by the early duplication of proprietary and possessory remedies summary of chapters thirteen and fourteen possession in fact possessio naturalis possibility in the law possessio civilis possession in the law season possession cuporial possessiyoviamente second visits incorporeal possessio juris righ visits cor就可以 possession the continuing exercise of the claim to the exclusive use of a material thing elements of corporeal possession 1. Not necessarily a claim of right. 2. Must be exclusive. 3. Not necessarily a claim to use as honor. 4. Not necessarily a claim on one's own behalf. 5. Not necessarily specific. Corpus. The effective realization 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 bailies 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 duplicated possession. 1. Mediate and immediate possession. 2. Possession in common. 3. Corporal and incorporeal possession. The acquisition of possession. 1. Taking. 2. Delivery. Actual. Constructive. Tradition. Groovy. Manu. Constitutim. Possessorium. Attornment. Possession not necessarily the physical power of exclusion. Incorporeal possession. It's nature. The continuing exercise of any claim. Save one to the exclusive use of a corporeal thing. It's relation to the 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. End of section 21.