Essay on Possession in the Common Law

An excerpt from the beginning of the Introduction – First Notions: POSSESSION is a term of common occurrence and no mean significance in the law. It imports something which at an earlier time constantly made the difference between having the benefit of prompt and effectual remedies, or being left with cumbrous and doubtful ones; which in modern times has constantly determined and often may still determine the existence or non-existence of a right to restrain acts of interference with property, the relative priority of the claims of competing creditors, or the incidence of public burdens; and which for centuries has been, and is still capable of being, of critical importance in defining the boundary between civil wrongs and crimes. Yet, as the name of Possession is in these and other ways one of the most important in our books, so it is one of the most ambiguous. Its legal senses(for they are several) overlap the popular sense, and even the popular sense includes the assumption of matters of fact which are not always easy to verify. In common speech a man is said to possess or to be in possession of anything of which he has the apparent control, or from the use of which he has the apparent power of excluding others. We shall have to consider hereafter whether the measure of apparent power depends merely on physical facts, or is liable to be affected by the appearance or reputation of right. For the present we start with this, that any of the usual outward marks of ownership may suffice, in the absence of manifest power in some one else, to denote as having possession the person-"to whom they attach. Law takes this popular conception as a provisional groundwork, and builds up on it the notion of possession in a technical sense, as a definite legal relation to something capable of having an owner, which relation is distinct and separable both from real and from apparent ownership, though often concurrent with one or both of them. Possession, again, whether in the popular or in the legal sense, does not necessarily concur with title. No plain man would hesitate to say that a squatter or a thief possesses himself of the land occupied or the goods carried away; and the law says so too. But the true owner, or some one claiming through him, ought to have the physical control of whatever has been wrongfully occupied, and will recover it if the law be fulfilled. In other words, the true owner or his delegate is entitled to possession; he is not possessor, but he ought to be. The temptation is great to speak of him as the rightful possessor, or to slide from the idea of right to possession into that of right of possession; and even the language of lawyers has not escaped it. Again, a man who has possession with the true owner's consent may be bound to restore it on demand; here too the right of resuming possession is apt to be confounded with possession itself, or with that right to possession which the possessor at the will of another has until that other's will is determined. On the other hand, since the person entitled to possess is generally (though not always) the owner, and in any case is he whom wrongful possessors have most to fear, a right to possess, even a limited, conditional, or deferred right, is no less apt to be confounded with that more general right to deal with the possession which coincides with ownership.... ...And, as if the inherent difficulties were not enough, others have been added in the course of modern legislation by making various effects and incidents of possession depend, for particular purposes, on the presence or absence of further particular conditions; and this without declaring (except in some cases by the addition of epithets having no settled meaning in law, and themselves requiring interpretation) in which or in how many of its more or less authenticated senses the word Possession was used.