possession in the common law - HiddenMysteries Information Central

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It was held that as between the plaintiff and the defendant the plaintiff was the actual finder, and as such
had the better right. ‘The notes never were in the custody of the defendant, nor within the protection of his
house, before they were found, as they would have been had they been intentionally deposited there.’ There
might conceivably be a positive rule of law that things left in any part of a building pass at once into the legal
possession of the occupier; but the Court found neither authority nor reason for any such rule.
A case like this illustrates the importance both of grasping the preliminary conception of facts, and of
keeping it clear from the supervening questions of right. The finder's right starts from the absence of any de
facto control at the moment of finding. And decisions which seem contradictory must not be pronounced to be
really so before we have attended to the possibility of differences of fact, which though minute in themselves
may be material in their consequences. Thus in Bridges v. Hawkesworth the Court did not say that an object
dropped by a guest in a private dwelling-house would not be in the custody of the master–‘within the
protection of his house’–and therefore in his possession; and Patteson J. did say that an innkeeper would have
possession 1 in the like case. In Massachusetts it has been held that where a customer voluntarily lays down his
pocket-book on a table in a shop, or a desk in a counting-house, and forgets to take it up as he goes away,
possession and a qualified right to possess are acquired by the shopkeeper or the banker, and [41] the first
person who takes up the pocket-book is not a real finder at all. 1 The open voluntary act of placing the object
there has the effect of placing it within the same general protection as other things in the same room, and the
owner’s forgetting to take it away when he goes out does not undo that effect. Cases may doubtless occur, or
may be suggested by way of exercise, in which the question of fact would be a really delicate one.
The possession of land carries with it in general, by our law, possession of everything which is attached to
or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no
difference that the possessor is not aware of the thing's existence. So it was lately held concerning a
prehistoric boat imbedded in the soi1. 2 It is free to anyone who requires a specific intention as part of de facto
possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests
on a real de facto possession, constituted by the occupier's general power and intent to exclude unauthorized
interference. In the case of the prehistoric boat the freeholder, being in possession, made a leas for ninety-nine
years to a gas company, reserving mines, minerals, and watercourses. The company's servants, in excavating
for foundations, discovered this boat or rather ‘dug-out’ canoe, which had been under the earth for many
centuries. Actual possession, it would seem, had passed to the company by the lease, and at all events it was
acquired when their servants removed the canoe from the soil. But the company had no right, it was held, to
retain the canoe against the freeholder; for he had the prior right to possession and had not divested himself of
it by granting the pos-[42]session and use of the soil for a special purpose. 1 The Roman lawyers, who required
a ‘possidendi affectus’ directed to the specific thing, would have dealt with this case differently. 2 The
Common Law pays more regard to the fact that an occupier’s general power to exclude strangers from any
part of that which he occupies is independent of his knowledge or ignorance as to the specific contents of that
part. Possibly the traditional dignity of the freehold may have something to do with this view, but it would
seem that a lessee for years would have had the same right as against a sub-lessee.
It seems that things washed or cast up on a man’s land adjacent to the sea do not come into his possession
without some further act on his part, but he is entitled to possess them as against everyone not having a better
title, and therefore has a right of action against a stranger who takes such things, or he can retake them from
him, though the first taking is not a trespass in the strict sense. 3
[40] 1 21 L.J.Q.B. at p. 76. 'A special property,’ i.e. right to possess, which is founded on possession and custody.
[41] 1 McAvoy v. Medina, 1866, 11 Allen 548; Kincaid v. Eaton, 1867, 98 Mass 139. These cases involve the opinion that there may be a bailment without a contract, an
opinion not without judicial support in England. See Cave J. in R. v. McDonald; 1885, 15 Q. B. D. at p. 327; this seems right notwithstanding what is said by Lord Coleridge
C.J. in R. v. Ashwell, 16 Q.B.D. at p. 223.
2 Elwes v. Brigg Gas Co., 1886, 33 Ch. D. 562.
[42] 1 Among other points, it was argued for him that the canoe was a quasi fossil and within the reservation of minerals. This was hardly tenable, but the reservation was
perhaps material as showing that it was not the lessor’s intention to part with more of his interest than was requisite for the purposes of the lease.
2 D. 41. 2. de poss. 3. § 3, 44 pr. It seems to have been the better opinion that even naturalis possessio requires a. certain specific affectio tenendi; cf. h. t. 1. § 3.
3 It has been held in Ireland that drift-weed left by the tide on foreshore (where the foreshore is vested in a subject) cannot be stolen, i.e. trespass de bonis asportatis would
not lie for taking it before it has been specifically appropriated by the landowner: R. v. Clinton, 1869, 4 Ir. Rep. C.L. 6; but that trover does lie for taking it, i.e. the landlord
has the immediate right to possession: Brew v. Haren, 1877, 11 Ir. Rep. C.L. 198, Ex. Ch.; to same effect in New York, Emans v. Turnbull, 1807, 2 Johns. 313, 322, per Kent
C.J., deciding that the landowner might retake weed so taken.