possession in the common law - HiddenMysteries Information Central

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possession of the same thing by a previous possessor.
Original occupation of land is not now 1 practically possible in England. One can enter on land either under
a lawful title to possess it, or in some public or particular right, such as the use of a highway or exercise of an
easement, which is consistent with the rightful possession, or under the authority or licence, express or
implied, of the person entitled to possess, or by authority of law. There is no other kind of lawful entry, and
whoever enters otherwise is a trespasser. Legal theory has nothing to do with the fact that a great deal of
trespassing is tolerated by reasonable owners and occupiers as being substantially harmless, or with the
difficulty that may sometimes be found in drawing the line between such toleration and a tacit but real
licence. We shall have something to say hereafter of the relation of seisin to possession. For the present it is
enough to say that (subject to one exceptional state of things to be mentioned) the whole soil of England is in
law possessed by occupying owners or other occupiers for various estates and interests, or by the Crown if
there is no estate of freehold or possessory interest in any subject. Even [46] the unauthorized appropriation of
new foreshore created by a permanent receding of the low-water mark at any part of the coast would in
modern law be a trespass against the Crown.
The exceptional case above indicated is when the freehold is in abeyance 1 and no tenant in possession. It
seems that a person entering without title during such abeyance would acquire a wrongful possession without
disseising or dispossessing anyone. He would not even infringe any existing right to possession. And it seems
that he could not be made liable in an action founded on the actual possession as distinct from the title of the
plaintiff, such as trespass qu. cl. fr.
With regard to goods, a moveable thing is acquired originally if immediately before its acquisition the
thing was not in point of law in the legal possession of any person. This may happen in several ways, but
some of them are of little practical importance, and others, though important, are so almost exclusively in
criminal law, and therefore are best reserved for discussion in a later part of this Essay. The details and
authorities are given in that part accordingly. 2
Difficulties which often appear to be and sometimes really are formidable arise in dealing with delivery of
possession. They will be found to turn more on the estimation of matters of fact than on any uncertainty of
legal principle. In all cases the essence of delivery is that the deliveror, by some apt and manifest act, puts the
deliveree in the same position of control over the thing, either directly or through a custodian, which he held
himself immediately before that act. What particular acts are necessary or sufficient as regards this or that
thing may depend on positive rules of law, but in general depends on the nature of the thing and the relation
[47] of the parties to it at the time. The statement now made intentionally excludes all cases in which, by
operation of law, possession is transferred without any delivery at all.
§ 4. Delivery as to Land.
Some preliminary explanation is needful in this place. We shall give it as briefly as possible.
Possession of land is of two kinds. Seisin signifies in the common law possession, 1 but one cannot be
seised, in the language of modern lawyers, as of any interest less than freehold.
Where a tenant occupies a close under a lease for years, the tenant has possession of the close, so that not
only a stranger but the freeholder himself may be guilty of a trespass against him, but the freeholder is still
seised, or, as the judges could say as late as 1490, possessed, of the freehold. 2 The fundamental maxim that
there can not be two possessions of the same thing at the same time is evaded, successfully or not, by treating
the land itself and the reversion as different things. Mr. F. W. Maitland's research 3 has thrown much light on
this curious compromise between incompatible ideas. He has shown by abundant examples that in the
thirteenth century seisin and possession were absolutely synonymous terms, and that as late as the fifteenth
century seisin of chattels was commonly spoken of in pleading. 4 But as early as the thirteenth century the
[45] 1 As to the old law of occupancy in an estate pur auter vie, see Co. Litt. 41 b, Blackst. ii. 258.
[46] 1 See Challis on Real Property, p. 78. It should seem that s.30 of the Conveyancing Act, 1881, has per incuriam introduced a. new occasion of abeyance, viz. when a sole
trustee dies intestate. See per Pearson J. Pilling's tr. (1884), 26 Ch. D. at p. 433.
2
See Part III. chap. i. § 4, below.
[47] 1 Co. Litt. 153 a.
2
5 H. VII. 10. pl. 2: ‘il n'ad le possession del clos mes del frank tenement.’
3
The Seisin of Chattels, L. Q. R. i. 324. The Mystery of Seisin, ib. ii. 481. The Beatitude of Seisin, ib. iv. 24.
4
Add to Mr. Maitland's examples 19 H. VI. 34. pl. 71.