possession in the common law - HiddenMysteries Information Central

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[26]PART II.
OF POSSESSION GENERALLY.
CHAPTER I.
The Nature of Possession.
THROUGHOUT our Inquiry we have to bear in mind that the following elements are quite distinct in
conception, and, though very often found in combination, are also separable and often separated in practice.
They are
i. Physical control, detention, or de facto possession. This, as an actual relation between a person and a
thing, is matter of fact. Nevertheless questions which the Court must decide as matter of law arise as to the
proof of the facts.
ii. Legal possession, the state of being a possessor in the eye of the law.
This is a definite legal relation of the possessor to the thing possessed. In its most normal and obvious form,
it coexists with the fact of physical control, and with other facts making the exercise of that control rightful.
But it may exist either with or without detention, and either with or without a rightful origin.
A tailor sends to J.S.'s house a coat which J.S. has ordered. J.S. puts on the coat, and then has both physical
control and rightful possession in law.
J.S. takes off the coat and gives it to a servant to take back to the tailor for some alterations. Now the
servant has physical control (in this connexion generally called ‘custody’ by our authorities) and J.S. still has
the possession in law.
While the servant is going on his errand, Z. assaults him and robs him of the coat. Z. is not only physically
master of the coat, but, so soon as he has complete control of it, he has [27] possession in law, though a
wrongful possession. To see what is left to J.S. we must look to the next head.
iii. Right to possess or to have legal possession. This includes the right to physical possession. It can exist
apart from both physical and legal possession; it is, for example, that which remains to a rightful possessor
immediately after he has been wrongfully dispossessed. It is a normal incident of ownership or property, and
the name of ‘property’ is often given to it. Unlike Possession itself, it is not necessarily exclusive. A. may
have the right to possess a thing as against B. and everyone else, while B. has at the same time a right to
possess it as against everyone except A. So joint tenants have both single possession and a single joint right to
possess, but tenants in common have a single possession with several rights to possess. 1 When a person
having right to possess a thing acquires the physical control of it, he necessarily acquires legal possession
also.
Right to possess, when separated from possession, is often called ‘constructive possession.’ The correct use
of the term would seem to be coextensive with and limited to those cases where a person entitled to possess is
(or was) allowed the same remedies as if he had really been in possession. But it is also sometimes specially
applied to the cases where the legal possession is with one person and the custody with his servant, or some
other person for the time being in a like position; and sometimes it is extended to other cases where legal
possession is separated from detention.
‘Actual possession’ as opposed to ‘constructive possession’ is in the same way an ambiguous term. It is
most commonly 2 used to signify physical control, with or without possession in law. ‘Bare possession’ is
sometimes used [28] with the same meaning. ‘Lawful possession’ means a legal possession which is also
rightful or at least excusable; this may be consistent with a superior right to possess in some other person.
The whole terminology of the subject, however, is still very loose and unsettled in the books, and the reader
cannot be too strongly warned that careful attention must in every case be paid to the context.
In the procedure of the Common Law (which no longer exists in England, but must be understood in order
[27] 1 Litt. ss. 311, 314; cf. s. 315, where if we interpreted Littleton in Coke's manner we might hold the &c. to signify the additional reason that trespass is a wrong to the
Possession itself.
2 But in statutes it has been held to include purely legal possession conferred by a grant operating under the Statute of Uses: Hadfield's ca., 1873. L.R. 8 C.P. 306.