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Possession in Law

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POSSESSION (IN LAW), a term derived from Roman law. It has been said to be either a right or a fact conferring a right, or both together. The latter is the view of Savigny, the leading au thority upon the subject (Recht des Besitzes). The definition of W. A. Hunter may be accepted : "Possession is the occupation of anything with the intention of exercising the rights of owner ship in respect of it" (Roman Law). Possession is inchoate or incomplete ownership; it is on its way to become ownership.

In both Roman and English law the possessory tended to super sede the proprietary remedies from their greater convenience— that is to say, the plaintiff based his claim or the defendant his right upon possession rather than property. The English posses sory action may have been directly suggested by the interdict. Bracton (Io3b) identifies the assise of novel disseisin, the most common form of possessory action, with the interdict uncle vi. In England ejectment had practically superseded other real actions before the latter were (with the exception of dower, writ of dower and quare impedit) expressly abolished by the Real Prop erty Limitation Act 1833, s. 36. The action for the recovery of land, introduced by the Judicature Acts, is the modern representa tive of the action of ejectment.

Possession gives in English law, speaking generally, much the same rights as in Roman law. Thus it serves to f ound a title (see LIMITATION, STATUTES OF; PRESCRIPTION), and to throw the onus of proof upon the claimant. In an action for the recovery of land the defendant need only allege that he is in possession by himself or by his tenant, and (where such an allegation is neces sary) that he had no notice to quit.

In English law the doctrine of possession becomes practically important in the following cases : (I) Possession serves as a con venient means of division of estates. (See LAWS OF REAL PROP ERTY.) One of the divisions of estates is into estates in possession and estates in reversion or remainder. It also serves as a division of personal property (q.v.). A chose in action is said to be reduced into possession when the right of recovery by legal proceedings has become a right of enjoyment. (2) Possession gives a title against a wrongdoer. In the case of real property it is regarded as prima facie evidence of seisin.' In the case of personal property the mere possession of a finder is sufficient to enable him to maintain an action of trover against one who deprives him of the chattel.' (3) What is called "unity of possession" is one of the means whereby an easement is extinguished. (4) Possession is very im portant as an element in determining the title to goods under 13 Eliz. c. 5, the Bills of Sale Act 1878 and the Bankruptcy Acts 1883 to 189o. (5) Possession of goods or documents of title to goods is generally sufficient to enable agents and others to give a good title under the Factors' Acts. (See FACTOR.) (6) In crim

inal law the question of possession is important in founding the distinction between larceny and embezzlement. (See Stephen, Digest of the Criminal Law, note xi.) (7) Actions of possession of ships fall within the jurisdiction of the admiralty division. This jurisdiction in the case of British vessels depends upon the Ad miralty Court Act 1861 (24 Vict. c. 1o, s. 8), in the case of for eign vessels (in which the jurisdiction is rarely exercised) upon the general powers of the court as a maritime court.

Under the Statutes of Limitation the only question now is, not whether possession has been adverse or not, but whether twelve years have elapsed since the right accrued.

Scotland.—In Scotland possessory actions still exist eo nomine. Actions of molestation, of removing, and of maills (payments) and duties are examples. A possessory judgment is one which entitles a person who has been in possession under a written title for seven years to continue his possession (Watson, Law Dict., s.v. "Posses sory Judgment").

United States.—In American law possession carries much the same important significance that it does in English law. Except in Louisiana where the civil law prevails, possession is commonly divided into actual and constructive possession. The former con cerns actual occupancy or the exercise of dominion over a thing; the latter occurs where there is no actual possession but simply ownership and the possession is either vacant or consistent with the outstanding ownership, such as possession by a servant or bailee. The doctrine of possession has an outstanding importance in practically every branch of the law, especially in the numerous cases where ownership to realty or personalty is in issue. Espe cially significant are the doctrines of adverse possession, where long continued and uninterrupted possession of chattels or realty under a claim of right and hostile to the true owner ripens after the statutory period into indefeasible ownership.

In addition to the authorities cited may be mentioned W. A. Hunter, Exposition of Roman Law (4th ed. 1903) ; 0. W. Holmes, The Common Law (1882) ; F. Pollock and R. S. Wright, Possession In the Common Law (1888) ; W. Markby, Elements of Law (2905) ; T. H. Holland, Elements of Jurisprudence (13th ed. 1924).

and "possession" are used sometimes as synonyms, as generally by Bracton ; at other times they are distinguished: thus there can be possession of a term of years, but no seisin (Noy, Maxims, p. 2). It seems doubtful, however, how far in English law a tenant for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessory remedies.

'Compare the Code Napoleon, art. 2,279: "En fait de meubles la possession vaut titre."