possession in the common law - HiddenMysteries Information Central

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or non-interference on the part of those who might be expected to interfere if they rightfully could.
Generally an occupation or use which is not on the face of it exclusive is not evidence of de facto
possession; unless indeed the nature of the subject-matter be such that exclusive use is not possible or
practicable. 1 ‘If there were an inclosed field, and a man had turned his cattle into it, and had locked the gate,
he might well claim to have a de facto possession of the whole field; but if there were an uninclosed common
of a mile in length, and he turned [out] one horse on one end of the common, he could not be said to have a de
facto possession of the whole length of the common.’ 2
Where incorporeal rights over real estate consist in or admit of exclusive enjoyment, the de facto
exercise of them is analogous to possession, and is protected by the same remedies. ‘Trespass lies for
breaking and entering a several fishery, though no fish are taken;’ the like of a free warren. 3 It does not lie for
disturbing a right of common, as the commoner has not an exclusive right to any part of the herbage: 4 but in
respect of a several right of herbage it may. 5 And as regards the bearing of acts of use and enjoyment done
upon or over parts of a continuous whole, such as a lake or a river, on a claim to exclusive rights over the
whole, the same kind of considerations apply as in the case where [36] possession of the land itself is
asserted. 1 Some little difficulty may be found in cases of this kind in distinguishing the question of title from
that of de facto possession. It must be remembered that partial acts of dominion, done in exercise of a more
extensive claim of title, tend to support that claim only so far as they are admissible evidence of de facto
possession of the whole subject-matter to which the claim extends. Doubt has also existed at various times as
to what things are really the subject of corporeal possession– ‘things whereof a man may have a manual
occupation possession or receipt,’ or ‘things manurable’–and what are not. 2
It is well established in our books that the rent and services incident to freehold tenure are the subject of
Possession, and that before legal possession or seisin is complete there must be such de facto possession as
the thing admits of in the shape of an actual receipt of some part of the rent. 3
The King is not unfrequently spoken of as being seised or possessed of the crown. This conception may
have had some influence in ultimately securing protection from the penalties of treason for the adherents of a
de facto sovereign. It was also applied to offices held by subjects, insomuch that an assize of novel disseisin
might be brought in several cases. 4 In the letters patent creating a peerage a Lord of Parliament is said to
possess his seat, place, and voice.
The term is even applied to the exercise and enjoyment of customary rights: in this sense Coke says that
‘Possession must have three qualities: it must be long, continual, and peaceable,’ and speaks of acts adverse to
the right claimed as an ‘interruption of the possession.’ 5
[37]§ 2. Evidence of Possession: Goods.
The de facto possession of personal chattels is up to a certain point obvious. No doubt is possible
concerning the pen one is writing with, or the paper one is writing on. But, as we pointed out in the
Introduction, complications arise as soon as we have to consider the case of a chattel which is not in anyone’s
present manual control. Often it is hard to say whether legal possession is the normal result of de facto
possession or is conferred by a special rule of law. The possible combinations of facts offer infinite gradation
from manifest power and will to hold the thing for oneself to cases where one of these elements, if not both, is
so weak and obscure that it can only just be said to exist.
One kind of real doubt in the matter of fact may arise with regard to the capture of wild animals. And
though the case is not common in English practice, it is not without importance, for possession in law follows
invariably upon a complete taking, whether rightful or not. At what point in the process of capture is the
[35] 1 Lord Advocate v. Young, supra.
2 Bramwell L.J., Coverdale v. Charlton, 1878, 4 Q. B. Div. 104, 118. Cp. Lord Hatherley, 4 App. Ca. at p. 798.
3 Hollord v. Bailey. Ex. Ch. 1849, 13 Q.B. 426, 444, 18 L.J.Q.B. 109, 112 And see 19 H. VI. 8. pI. 19, 5 H. VII. 10. pI. 2, F.N.B. 87 G., and other authorities collected in
S.C. in the Court below, 8 Q.B. at pp. 1007-1010.
4 Ass. pl. 48.
5 Co. Litt. 4 b.
[36] 1 See Bristow v. Cormican, 1878, 3 App. Ca. 641, 661, 670; Neill v. Duke of Devonshire, 1882, 8 App. Ca. 135, 166.
2 Litt. s. 10, and Coke thereon, 17 a. See Elphinstone, Norton, and Clark on Interpretation of Deeds, 571-2; Rochester v. Rochester, Noy 37. As to seisin of a villein, Litt. s.
541.
3 Litt. ss. 233, 235,565. Co. Litt. 160 a, 315 a. As to seisin of services, and the effect of seisin of fealty with regard to other services, Bevil’s ca. 4 Co. Rep. 8 a.
4 See 16 Vino Abr. 134.
5 Co. Litt. 113 b,. 11.14.