1902 Encyclopedia > Possession


POSSESSION is a legal term derived from Roman law. The Roman conception of possession has been generally adopted, but the Roman deductions from the conception have not been universally followed. The subject of possession, in itself a difficult one, has become more difficult owing to the various senses in which the term has been interpreted. Thus it has been said to be either a right or a fact conferring a right, or both together. The latter is the view of Savigny, the leading authority upon the subject {Recht des Besitzes, translated by Sir Erskine Perry,, 1848). Further, there is a want of agreement among legal writers as to the amount of right or rights that it confers. All that can be said with safety is that possession stands in a position intermediate between simple detention and absolute ownership, and that it implies two elements, a physical and a mental one,—physical detention and menta! intention to hold the thing possessed as one's own. In the words of the Digest, " Apiscimur possessionem corpore et animo, neque per se animo aut per se corpore " (xli. 2,, 3, 1). The difficulties which have been stated being borne in mind, the definition of Professor Hunter may be accepted as being at least as good as any other that has been sug-gested: "Possession is the occupation of anything with the intention of exercising the rights of ownership in respect of it" {Roman Law, p. 209). Possession is inchoate or incomplete ownership; it is on its way to become ownership. In the case of the public domain of Rome (ager publicus) the possession was really the important matter, the dominium being practically of no value. Possession in Roman law was either natural or civil. The former was mere occupa-tion, the latter such occupation as ripened by prescription into ownership. Possession exclusive against the world (including the true owner) was called " adverse possession." A servitude, such as a right of way, could not be held in true possession, but was said to be in "quasi-possession.'' The quasi-possessor had, however, possessory remedies

In Roman law a broad distinction was drawn between possession and ownership (dominium). They were protected by different remedies,-—possession by interdict, ownership by action. This difference can only be explained by history. Here again, unfortunately, authorities differ. According to Savigny, a Roman citizen who had become a tenant of part of the ager publicus could not by any length of holding obtain more than a quasi-ownership, but one of which it would have been morally unjust to have deprived him. "The only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessory interdicts, summary processes of Roman law which were either expressly devised by the prsetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right" (Maine, Ancient Law, ch. viii.). Savigny regards the protection of possession as an exten-sion of the protection of the person. The same view was taken by the English. Court of Exchequer in Rogers v. Spence, 13 Meeson and Welsby's Reports, 581. According to Professor Hunter (Roman Law, pp. 206, 221), Savigny overlooked the needs of aliens. It was the needs of aliens, incapable of the full proprietary rights of Roman citizens, that led to the invention by the prsetor of a means of giving them equitable rights in the land, and protecting them in the enjoyment of these rights. Savigny attributes only two rights to possession in Roman law—acquisition of ownership by possession for a given time (usucaptio, longi temporis possessio) and protection of possession from disturbance (interdictum). Others have included further rights,—inter alia, the right to use force in defence of possession, and the right to have the burden of proof, in a contest as to the title, thrown upon the adversary: " In pari causa possessor potior haberi debet." The position of the possessor in Roman law was a very strong one. If a bona fide possessor, he could bring an action for furtum even against the owner; if a mala fide possessor of land, he was so far protected that he could not be ejected by force. A mala fide possessor of movables could, however, acquire no rights.

It has been already stated that there is both a physical and a mental element in the conception of possession. This does not necessarily mean that corporal contact is in all cases requisite, or that the intention to hold the thing possessed as one's own may not be abandoned for a time. The control may be potential as well as actual. An estate may be possessed without the possessor going upon the lani at all, and the possession of goods may be given by delivering the key of the warehouse in which they are stored. In international law the possession of part as giving the right to the whole has been of great importance. The possession of the coast of a newly-discovered country gives a right to the inland territory within certain limits (see Twiss, International Law, vol. i. p. 170). Where goods are pledged or bailed for a specific purpose the intention of the pledgor or bailor to hold them as his own is suspended during the existence of the limited right of the pledgee or bailee, to whom a fragment of the posses-sion has passed. In Roman law the pledgor had possessio ad usucapionem, the pledgee possessio ad interdicta. The possession of the pledgee or bailee has been called " deriva-tive possession." Possession may be exercised through another ("animo nostro, corpore alieno"), as through a servant, who has not true possession. Possession so exercised has been called " representative possession." As soon as the representative determines to assume control on his own behalf or to submit to the control of another, the possession of the principal is gone. Possession may be transferred or lost. It is lost when either the corpus at the animus (to use the terms of Roman law) ceases to exist. It may be lost by the representative in cases where the principal might have lost it.

In both Roman and English law the possessory tended to supersede the proprietary remedies from their greater convenience,—that is to say, the plaintiff based his claim or the defendant his right upon possession rather than property. The English possessory action may have been directly suggested by the interdict. Bracton (103b) identifies the assise of novel disseisin, the most common form of possessory action, with the interdict unde vi. In England ejectment had practically superseded other real actions before the latter were (with the exception of dower, writ of dower, and quare impedit) expressly abolished by 3 and 4 Will. IV. c. 27, s. 36. The action for the recovery of land, introduced by the Judicature Acts, is the modern representative of the action of ejectment. The right of a party to recover possession is enforced by a writ of possession.

Possession gives in English law, speaking generally, much the same rights as in Roman law. Thus it serves to found a title (see LIMITATION, PRESCRIPTION), and to throw the onus of proof upon the claimant. In an action for the recovery of land the defendant need only allege that he is in possession by himself or his tenant, and (where such an allegation is necessary) that he had no notice to quit. The chief differences between Roman and English law, arising to some extent from the differences in the history of the two systems, are that the former did not give to derivative possessors (except in the case of pledge) the remedies of possessors, as does English law, and that Roman law is stricter than English in requiring that possession to found usucapio should (except in the case of jus aqux ducendss) be ex justo titulo, or under colour of right (see PRESCRIPTION). There is one case of constructive possession which is peculiar to English law, —that is, where possession is said to be given by a deed operating under the Statute of Uses (see " Orme's Case," Law Reports, 8 Common Pleas, 281).

In English law the doctrine of possession becomes practically important in the following cases. (1) Possession serves as a con-venient means of division of estates (see REAL ESTATE). One of the divisions of estates is into estates in possession and estates in reversion or remainder. It also serves as a division of PERSONAL ESTATE (q.v.). A chose in action is said to be reduced into pos-session when the right of recovery by legal proceedings has become a right of enjoyment. (2) Possession gives a title against a wrong-doer. In the case of real property it is regarded as prima facie evidence of seisin. In the case of personal property the mere pos-session of a finder is sufficient to enable him to maintain an action of trover against one who deprives him of the chattel6 (see the leading case of Armory v. Delamirie, 1 Strange's Reports, 504). (3) What is called "unity of possession" is one of the means whereby an easement is extinguished. Thus the owner of close A may have had a right of way over close B, while the latter belonged to a different owner. If the two closes come to be owned by the same person, the right of way is extinguished, hut may nnder certain circumstances revive on the separation of the owner-ship. (4) Possession is very important as an element in deter-mining the title to goods under 13 Eliz. c. 5, the Bills of Sale Act, 1878 (41 and 42 Vict. c. 31, ss. 4, 8), and the Bankruptcy Act, 1883 (46 and 47 Vict. c. 52, s. 44). It may be said that as a .general rule retention of possession by the transferor on an absolute assignment or a colourable delivery of possession to the transferee is strong prima facie evidence of fraud. " Apparent possession " is defined by section 4 of the Bills of Sale Act. (5) Possession of goods or documents of title to goods is generally sufficient to enable agents and others to give a good title under the Factors' Acts (see FACTORS). (6) In criminal law the question of possession is important in founding the distinction between larceny and embezzle-ment. If the goods are in the possession of the master and he gives them to the custody of his servant for a specific purpose^ and the servant steals them, it is larceny; if they have never come into the master's possession, as if a clerk receives money on his master's behalf, it is embezzlement. Recent possession of stolen goods is always regarded as a presumption that the person in whose pos-session they are stole them or received them knowing them to have been stolen. In the case of a charge of receiving stolen goods evidence may be given that there was found in the possession of the accused other property stolen within the preceding period of twelve months, 34 and 35 Vict. c. 112, s. 19. (For possession in criminal law, see Stephen, Digest of the Criminal Law, note xi.). (7) Actions of possession of ships fall within the jurisdiction of the Admiralty Division. This jurisdiction in the case of British vessels depends upon the Admiralty Court Act, 1861 (24 Vict. c. 10, s. 8), in the case of foreign vessels (in which the jurisdiction is rarely exercised) upon the general powers of the court as a maritime court.

The doctrines of adverse possession (in the old English sense, which was not identical with the Roman law, for the real owner must have actually or by fiction been disseised) and of possessio fratris are now of only antiquarian interest. The Statutes of Limitation, 3 and 4 Will. IV. e. 27 and 37 and 38 Vict. c. 57, have super-seded the first. The only question now is, not whether possession has been adverse or not, but whether twelve years have elapsed since the right accrued (see LIMITATION). The maxim "possessio fratris de feodo simplici sororem facit esse hseredem " (Coke upon Littleton, 14b) has been altered by the rules of descent introduced by 3 and 4 Will. IV. c. 106, under which descent is traced from the purchaser. At one time possessory suits were occasionally maintained in England, and more frequently in Ireland, for the quieting of possession after proof of three years' possession before the filing of the bill. But such suits are now obsolete (see Neill v. Duke of Devonshire, 8 Appeal Cases, 146). There was one character-istic case in old English law in which possession was maintained by means of what was called '' continual claim," made yearly in due form, where the person having the right was prevented by force or fear from exercising it (Coke upon Littleton, 253b). Continual claim was abolished by 3 and 4 Will. IV. c. 27,-s. 11.

Scotland.—In Scotland possessory actions still exist eo nomine. Actions of molestation, of removing, and of maills and duties are examples. A possessory judgment is one which entitles a person who has been in possession under a written title for seven years to con-tinue his possession (Watson,Z«w Dict.,s.v." Possessory Judgment").

United States.—Here the law in general agrees with that of England. But in Maryland, New Hampshire, North Carolina, and Vermont the doctrine of possessio fratris apparently still exists (Bouvier, Law Diet., "Possessio Fratris"). Possessory rights are taxed in some of the States. Louisiana follows Roman law closely. Possession of incorporeal rights (to use the unscientific language of the Code) is called quasi-possession, and the division of possession into natural and civil is maintained (Civil Code, §§ 3389-3419).

[Further Reading] In addition to the authorities cited may he mentioned Smith, Dict. of Antiquities, s.v. "Possessio" ; Markhy, Elements of Law, ch. viii.; Holland, Elements of Jurisprudence, ch. xi.; Holmes, The Common Law (lect. vi.). (J. W†.)


The distinction is very important, as it affects the contract of sale. The contract was not to transfer ownership, as in English law, but only vacua possessio.
This does not agree with English law, where in certain cases a
thief can give a good title to stolen goods, though he has no title

3 Much of the law of master and servant is based upon the Roman law of master and slave. The servant, like the slave, has not posses-sion of his master's goods even though they are in his custody, unless, indeed, the circumstances are such that he ceases to be a servant and becomes a bailee.

4 "Seisin" and "possession" are used sometimes as synonyms, as generally by Bracton; at other times they are distinguished: thus there can be possession of a term of years, but no seisin (Noy, Maxims, p. 2). It seems doubtful, however, how far in English law a tenia) for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessory remedies, like the quasi-possessor in Roman law.

8 Compare the Code Napoleon, art. 2279 : "En fait de meubles la possession vaut titre."

The above article was written by: James Williams, B.C.L.

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