possession in the common law - HiddenMysteries Information Central

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this tendency has in modern European systems fulfilled itself, or seems in a way to be fulfilled, by the
thorough-going substitution of a publicly registered, and in that sense notorious, title, that is, right to possess,
for the [84] notorious actual possession on which the earlier law of property was founded. It is true that title in
the sense of English conveyancers means only evidence of right to possession, or rather that sum of such
evidence which is deemed practically safe for prudent men to act upon. But a registered title under a system
of State registration is more than evidence; it constitutes, and is the only measure of, the right itself (though
not necessarily an absolute right) which is guaranteed by the State.
§ 12. Taking for the true owner’s benefit.
Taking for the true owner’s benefit may occur in the case of a person who finds goods apparently lost. ‘It is
the law of charity to lay up the goods which do thus come to his hands by Trover, and no Trespass shall lie for
this; but where one takes goods where there is no such danger of being lost, or finds them before they are lost,
otherwise it shall be.’ 1
The theory of a finder’s possession has however been greatly complicated in the law of larceny, as we shall
see in the third Part of this Essay.
Other cases of taking for the true owner’s benefit (with or without the additional justification of the public
safety) are depriving a madman of dangerous weapons, and the like.
§ 13. Wrongful entry or taking.
Under this head the first question seems to be what acts are sufficient to work the change of possession
which might be called disseisin in all cases if we followed the language of the earlier authorities, but which
we have to distinguish, according to more recent usage, as either ouster or disseisin (using the latter term in its
larger sense) with regard to freehold or copyhold hereditaments, ouster with regard to chattels real, and
asportation with regard to personal chattels.
With regard to land, however, this question has lost much of its practical importance. The old possessory
actions [85] required actual proof of the disseisin complained of, or at least of an act which the plaintiff might
treat as a disseisin if he pleased. But the action of ejectment in its modern form 1 tried the right to possession
by means of the fiction that the nominal plaintiff, having entered under a lease made by the real plaintiff, was
ousted by a mere stranger; and the real defendant was brought in by a rule of court upon the terms that he
should ‘confess lease, entry, and ouster, and insist upon his title only.’ And when this form of action, from its
greater convenience, became the general and accepted method of trying the title to the freehold as well as to
chattel interests, 2 disseisin or ouster ceased to be a principal fact. Possession remained and remains material as
evidence of right to possess; and in order to show that one man possessed at a given time it might and may be
necessary to show that another man ceased to possess, and to fix the point of time at which his possession
ceased. But this belongs, so to speak, to the accidents of fact and evidence that vary from case to case. The
chief importance of such proof nowadays, if not the only importance, is in cases where long-continued
possession is relied on as conferring a title under the Statute of Limitation.
With regard to chattels the question remains important in criminal law, but, we believe, not elsewhere. The
reader is referred to the third Part of this Essay for details.
§ 14. Ouster from land.
To constitute a dispossession there must in every case be positive acts which can be referred only to the
intention of acquiring exclusive control. As between neighbours there are occasional acts of interference
which, even if not strictly justified by necessity, are naturally explained by the desire of the person doing
them to protect his own undoubted property. [86] Boundary fences, hedges, and the like, are often mended in
this way without any claim of right: it is less trouble to repair the breach and say nothing than to call on an
absentee owner or trustees to do so. Such acts are not adverse to the existing title, or rather are not acts of
possession at all. 1
[84] 1 Isaack v. Clark, 1615, 2 Bulstr. 306, per Coke C.J. at p. 312.
[85] 1 Blackst. Comm. iii. 202, 203.
2 Blackst. Comm. iii. c. 10, ad fin., and see the common forms given in the Appendix.
[86] 1 See Searby v. Tottenham Ry. Co., 1868, 5 Eq. 409.