possession in the common law - HiddenMysteries Information Central

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in effectually and continuously excluding the former tenant from it.
All this time, be it noted, we have said nothing of possession in law. We have sought only to fix attention
on the preliminary conception of possession or control in fact.
It appears, then, that even at the earliest stage we have many things to distinguish. De facto possession, or
Detention as it is currently named in Continental writings, may be paraphrased as effective occupation or
control. Now it is evident that exclusive occupation or control, in the sense of a real unqualified power to
exclude others, is nowhere to be found. All physical security is finite and qualified. A strong man is worse to
meddle with than a weak man or a child, but the strong man also may be overpowered. It is harder to break
[13] into a safe than a cupboard, a house than a field, a prison or a fortress than a house; but locks may be
picked, bolts forced, walls broken. External security means only making intrusion so troublesome, and
successful intrusion so little to be hoped for, that under ordinary conditions the risk of the attempt will be out
of proportion to the contingent gain of success. And the amount of material difficulty which it is necessary or
worth while to set up is found by experience to vary with the circumstances. A dwelling-house is not built or
guarded like a prison, and we do not lock up tea and candles in a safe; we should call a banker imprudent who
used only the same cautions as a private householder. We may say then that, in common understanding, that
occupation at any rate is effective which is sufficient as a rule and for practical purposes to exclude strangers
from interfering with the occupier’s use and enjoyment. Much less than this will often amount to possession
in the absence of any more effectual act in an adverse interest. Indeed it seems correct to say that ‘any power
to use and exclude others, however small, will suffice, if accompanied by the animus possidendi, provided
that no one else has the animus possidendi and an equal or greater power.’ 1 To determine what acts will be
sufficient in a particular case we must attend to the circumstances, and especially to the nature of the thing
dealt with, and the manner in which things of the same kind are habitually used and enjoyed. We must
distinguish between moveable and immoveable property, between portable objects and those which exceed
the limits of portable mass or bulk. Further, we must attend to the apparent intent with which the acts in
question are done. An act which is not done or believed to be done in the exercise or assertion of dominion
will not cause the person doing it to be regarded as the de facto exerciser of the powers of use and enjoyment.
Still further, it will often not suffice to regard the intent of the actor alone. I may intend to assert dominion
over a given subject of property, and I may do an [14] act, or a series of acts, fitted to manifest that intention.
But there may be some other person who appears to be in a position, of right or in fact, to object to my claim;
and whether my action be taken with or without the consent or acquiescence of any such person will make a
great difference to the practical result. If I act with the consent of the former holder (as a purchaser does when
he receives delivery of goods or is let into possession of land), whoever respected his will to exclude others
may be expected in like manner to respect mine: I get, if one may so use the word, the goodwill of his
occupation. But if consent be wanting, and I am confronted by resistance, or even under apprehension of it,
other people cannot be expected to assume anything in my favour, and will not give me credit for the powers
of an owner until my exclusive power of control is manifest in actual experience. Thus it happens that acts
which if opposed would be insignificant are accepted as a sufficient and actual entering on possession when
they are fortified by the concurrence of the last possessor, while hostile or ambiguous occupation must make
itself good at every step. Delivery is favourably construed, taking is put to strict proof; and this not by calling
in aid any presumption of right, but on the ground that the reality of de facto dominion is measured in inverse
ratio to the chances of effective opposition. And, in order to ascertain whether acts of alleged occupation,
control, or use and enjoyment, are effective as regards a given thing we may have to consider
(a) of what kinds of physical control and use the thing in question is practically capable:
(b) with what intention the acts in question were done:
(c) whether the knowledge or intention of any other person was material to their effect, and if so, what that
person did know and intend. 1
Hence follows a seeming paradox. Occupation or control is a matter of fact, and cannot of itself be
dependent on matter of law. But it may depend on the opinion of certain persons for [15] the time being, or the
current opinion of a multitude or a neighbourhood, concerning that which is ultimately matter of law. Though
law cannot alter facts, or directly confer physical power, the reputation of legal right may make a great
[13] 1 Terry, Principles of Anglo-Amencan Law, p. 268.
[14] 1 See Cook v, Rider, 1834, 16 Pick. (Mass.) 186.