possession in the common law - HiddenMysteries Information Central

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can be shown to the freehold of most of the land in England; but if we want to know exactly to what land a
given title applies, we have oftener than not to rely on actual usage to determine the boundaries. Few titledeeds
are so precise in their description of the property dealt with as to leave nothing uncertain. Where
particular circumstances make the difference of a few feet material, there may be serious dispute about the
ownership, for example, of a boundary ditch, with maps and documents in excellent order on both sides. It is
quite exceptional for documents to throw any light on facts of this kind. They may guide us to a certain bank
and double ditch between Blackacre and Whiteacre, but if the owner of Blackacre claims the bank and both
ditches, and the owner of Whiteacre claims one ditch and half or the whole of the bank, the documents will
probably cease to help us, and [31] we must fall back on evidence of acts of ownership and of the local custom
as to boundary ditches. 1 Again, acts of dominion over land are often isolated in space. A bank or a fence is
mended here and there as it needs mending, and the like. And then it has to be Considered to what extent in
space acts of this kind assume dominion, and against whom.
First, as to the quality of acts of dominion, they will be esteemed according to their subject-matter. Conduct
which would be almost evidence of abandonment with regard to one kind of land may with regard to another
be as good evidence of use and occupation as can be expected. ‘By possession is meant possession of that
character of which the thing is capable.’ 2 ‘What acts amount to a sufficient occupation must depend upon the
nature of the soil and the uses to which it is to be applied.’ 3 Where land is uncultivated and of little immediate
use except for sport, shooting over it during some months of the shooting season may be enough to constitute
de facto possession. 4 In British India boundary disputes are exceedingly common, and one point to which
evidence is commonly directed is who sowed the last crop; but the evidence is often conflicting and
untrustworthy, even collusive litigation being got up beforehand in order to make evidence on special points
in such suits. 5 The nature of the soil, on the alluvial lands of Bengal at any rate, also makes a conflict of
genuine claims quite possible and intelligible. Thus an Anglo-Indian magistrate may give very little weight to
testimony which an English jury or judge would act upon in England without hesitation.
Acts of dominion over part of the thing in dispute may be evidence of de facto possession of the whole. The
principles [32] and conditions on which this depends were thus explained by Parke B. half a century ago:–
‘Ownership may be proved by proof of possession, and that can be shown only by acts of enjoyment of the
land itself; but it is impossible in the nature of things to confine the evidence to the very precise spot on which
the alleged trespass may have been committed: evidence may he given of acts done on other parts, provided
there is such a common character of locality between those parts and the spot in question as would raise a
reasonable inference in the minds of the jury that the place in dispute belonged to the plaintiff if the other
parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership
in any part of the same inclosure; for the ownership of one part causes a reasonable inference that the other
belongs to the same person: though it by no means follows as a necessary consequence, for different persons
may have balks of land in the same inclosure; but this is a fact to he submitted to the jury. So I apprehend the
same rule is applicable to a wood which is not inclosed by any fence. If you prove the cutting of timber in one
part, I take that to be evidence to go to a jury to prove a right in the whole wood, although there be no fence,
or distinct boundary, surrounding the whole; and the case of Stanley v. White 1 I conceive is to be explained on
this principle: there was a continuous belt of trees, and acts of ownership on one part were held to be
admissible to prove that the plaintiff was the owner of another part, on which the trespass was committed. So
I should apply the same reasoning to a continuous hedge; though no doubt the defendant might rebut the
inference that the whole belonged to the same person by showing acts of ownership on his part along the same
fence. It has been said, in the course of the argument, that the defendant had no interest to dispute acts of
ownership not opposite his own land; but the ground on which such acts are admissible is not the
acquiescence of any party: they are admissible of themselves, proprio vigore, for they tend to prove that he
who does them is the owner of the soil; though if they are done in the absence of all persons interested to
[31] 1 See Y.B. 4 H. VI. 10, pl. 4.
2 Lord FitzGerald in Lord Advocate v. Young, 1887, 12 App. Ca. at p. 556.
3 Cook v. Rider, 16 Pick. (Mass.) 186, 187.
4 Harper v. Charlesworth, 1825, 4 B.&C. 574, 584. Grass had also been taken under a licence from the plaintiff.
5 See Mr. H. A. D. Phillips in L.Q.R. iii. 197-200.
[32] 1 14 East, 332; see below.