Jurisprudence

by Sir John W. Salmond

SUMMARY.

Ownership—the relation between a person and a right vested in him.
Ownership	The three beneficial relations between persons and rights.
Possession
Encumbrance

The kinds of Ownership.

1. Corporeal and incorporeal.

The ownership of things and that of rights.

The ownership of rights and the right of ownership.

Res corporales and res incorporales.

Diferent uses of the term res or thing.

(a) A material object.

(b) The object of a right.

Material and immaterial things.

(c) The object of ownership.

Corporeal and incorporeal things.

2. Sole ownership and co-ownership.

Joint ownership and ownership in common.

3. Trust and beneficial ownership.

The nature of trusts.

The purposes of trusts.

4. Legal and equitable ownership.

5. Vested and contingent ownership.

Conditions precedent and subsequent.

Contingent and determinable ownership.

CHAPTER XIII.
POSSESSION.

§ 93. Introduction.

In the whole range of legal theory there is no conception more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title. Long possession is a sufficient title even to property which originally belonged to another. The transfer of possession is one of the chief methods of transferring ownership. The first possession of a thing which as yet belongs to no one is a good title of right. Even in respect of property already owned, the wrongful possession of it is a good title for the wrongdoer, as against all the world except the true owner. Possession is of such efficacy, also, that a possessor may in many cases confer a good title on another, even though he has none himself; as when I obtain a bank-note from a thief, or goods from a factor who disposes of them in fraud of his principal. These are some, though some only, of the results which the law attributes to possession, rightful or wrongful. They are sufficient to show the importance of this conception, and the necessity of an adequate analysis of its essential nature.

§ 94. Possession in Fact and in Law.

It is necessary to bear in mind from the outset the distinction between possession in fact and possession in law. We have to remember the possibility of more or less serious divergences between legal principles and the truth of things. Not everything which is recognised as possession by the law need be such in truth and in fact. And conversely the law, by reasons good or bad, may be moved to exclude from the limits of the conception facts which rightly fall within them. There are three possible cases in this respect. First, possession may and usually does exist both in fact and in law. The law recognises as possession all that is such in fact, and nothing that is not such in fact, unless there is some special reason to the contrary. Secondly, possession may exist in fact but not in law. Thus the possession by a servant of his master’s property is for some purposes not recognised as such by the law, and he is then said to have detention or custody rather than possession. Thirdly, possession may exist in law but not in fact; that is to say, for some special reason the law attributes the advantages and results of possession to some one who as a matter of fact does not possess. The possession thus fictitiously attributed to him is by English lawyers termed constructive. The Roman lawyers distinguished possession in fact as possessio naturalis, and possession in law as possessio civilis.[^[215]]

In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which had developed with absolute logical rigour, undisturbed by historical accidents, and unaffected by any of those special considerations which in all parts of the law prevent the inflexible and consistent recognition of general principles.

It follows from this discordance between law and fact, that a complete theory of possession falls into two parts: first an analysis of the conception itself, and secondly an exposition of the manner in which it is recognised and applied in the actual legal system. It is with the first of those matters that we are here alone concerned.

It is to be noticed that there are not two ideas of possession—a legal and a natural. Were this so, we could dispense altogether with the discussion of possession in fact. There is only one idea, to which the actual rules of law do more or less imperfectly conform. There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced. Our task is merely to search for the idea which underlies this body of rules, and of which they are the imperfect and partial expression and application.

The complexities of the English law are increased by the curious circumstance that two distinct kinds of legal possession are recognised in that system. These are distinguished as seisin and possession. To a considerable extent they are governed by different rules and have different effects. I may have seisin of a piece of land but not possession of it, or possession but not seisin, or both at once; and in all those cases I may or may not at the same time have possession in fact. The doctrine of seisin is limited to land; it is one of the curiosities of that most curious of the products of the human intellect, the English law of real property. The doctrine of possession, on the other hand, is common, with certain variations, to land and chattels. The divergence between these two forms of possession in law is a matter of legal history, not of legal theory.

Extraordinary importance was until a comparatively recent period attributed by our law to the acquisition and retention of seisin by the owner of land. Without seisin his right was a mere shadow of ownership, rather than the full reality of it. For many purposes a man had only what he possessed—and the form of his possession must be that which amounted to seisin. A dispossessed owner was deprived of his most effective remedies; he could neither alienate his estate, nor leave it by his will; neither did his heirs inherit it after him. The tendency of modern law is to eliminate the whole doctrine of seisin, as an archaic survival of an earlier process of thought, and to recognise a single form of legal possession.[^[216]]

§ 95. Corporeal and Incorporeal Possession.

We have seen in a former chapter that ownership is of two kinds, being either corporeal or incorporeal. A similar distinction is to be drawn in the case of possession. Corporeal possession is the possession of a material object—a house, a farm, a piece of money. Incorporeal possession is the possession of anything other than a material object—for example, a way over another man’s land, the access of light to the windows of a house, a title of rank, an office of profit, and such like. All these things may be possessed as well as owned. The possessor may or may not be the owner of them, and the owner of them may or may not be in possession of them. They may have no owner at all, having no existence de jure, and yet they may be possessed and enjoyed de facto.

Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right. The Germans distinguish in like fashion between Sachenbesitz, the possession of a material thing, and Rechtsbesitz, the possession of a right. The significance of this nomenclature and the nature of the distinction indicated by it will be considered by us later.

It is a question much debated whether incorporeal possession is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of possessio, while at other times they are careful to qualify incorporeal possession as quasi possessio—something which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal ownership. The possession of a right of way is generically identical with the possession of the land itself, though specifically different from it.

This being so, the strictly logical order of exposition involves the analysis, in the first place, of the generic conception, in its full compass, followed by an explanation of the differentia, which distinguishes possessio corporis from possessio juris. We shall, however, adopt a different course, confining our attention in the first place to possessio corporis, and proceeding thereafter to the analysis of possessio juris and to the exposition of the generic idea which comprises both of them. This course is advisable for two reasons. In the first place, the matter is of such difficulty that it is easier to proceed from the specific idea to the generic, than conversely. And in the second place, the conception of corporeal possession is so much more important than that of incorporeal, that it is permissible to treat the latter simply as a supplement to the former, rather than as co-ordinate with it.

§ 96. Corporeal Possession.

Corporeal possession is clearly some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right. It may be, and commonly is, a title of right; but it is not a right itself. A man may possess a thing in defiance of the law, no less than in accordance with it. Nor is this in any way inconsistent with the proposition, already considered by us, that possession may be such either in law or in fact. A thief has possession in law, although he has acquired it contrary to law. The law condemns his possession as wrongful, but at the same time recognises that it exists, and attributes to it most, if not all, of the ordinary consequences of possession.[^[217]]

What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as possession? The answer is apparently this: The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves, therefore, two distinct elements, one of which is mental or subjective, the other physical or objective. The one consists in the intention of the possessor with respect to the thing possessed, while the other consists in the external facts in which this intention has realised, embodied, or fulfilled itself. These two constituent elements of possession were distinguished by the Roman lawyers as animus and corpus, and the expressions are conveniently retained by modern writers. The subjective element is called more particularly the animus possidendi, animus sibi habendi, or animus domini.

Apiscimur possessionem, so runs a celebrated sentence of the Roman lawyer Paul,[^[218]] corpore et animo, neque per se animo aut per se corpore. Neither of these is sufficient by itself. Possession begins only with their union, and lasts only until one or other of them disappears. No claim or animus, however strenuous or however rightful, will enable a man to acquire or retain possession, unless it is effectually realised or exercised in fact. No mere intent to appropriate a thing will amount to the possession of it. Conversely, the corpus without the animus is equally ineffective. No mere physical relation of person to thing has any significance in this respect, unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. A man does not possess a field because he is walking about in it, unless he has the intent to exclude other persons from the use of it. I may be alone in a room with money that does not belong to me lying ready to my hand on the table. I have absolute physical power over this money; I can take it away with me if I please; but I have no possession of it, for I have no such purpose with respect to it.

§ 97. The Animus Possidendi.

We shall consider separately these two elements in the conception. And first of the animus possidendi. The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. It is a purpose of using the thing oneself and of excluding the interference of other persons. As to this necessary mental attitude of the possessor there are the following observations to be made.

1. The animus sibi habendi is not necessarily a claim of right. It may be consciously wrongful. The thief has a possession no less real than that of a true owner. The possessor of a thing is not he who has, or believes that he has, a right to it, but he who intends to act as if he had such a right. To possession in good faith the law may and does allow special benefits which are cut off by fraud, but to possession as such—the fulfilment of the self-assertive will of the individual—good faith is irrelevant.

2. The claim of the possessor must be exclusive. Possession involves an intent to exclude other persons from the uses of the thing possessed. A mere intent or claim of unexclusive use cannot amount to possession of the material thing itself, though it may and often does amount to some form of incorporeal possession. He who claims and exercises a right of way over another man’s land is in possession of this right of way; but he is not in possession of the land itself, for he has not the necessary animus of exclusion.

The exclusion, however, need not be absolute. I may possess my land notwithstanding the fact that some other person, or even the public at large, possesses a right of way over it. For, subject to this right of way, my animus possidendi is still a claim of exclusive use. I intend to exclude all alien interference except such as is justified by the limited and special right of use vested in others.

3. The animus possidendi need not amount to a claim or intent to use the thing as owner. A tenant, a borrower, or a pledgee may have possession no less real than that of the owner himself. Any degree or form of intended use, however limited in extent or in duration, may, if exclusive for the time being, be sufficient to constitute possession.

4. The animus possidendi need not be a claim on one’s own behalf. I may possess a thing either on my own account or on account of another. A servant, agent, or trustee may have true possession, though he claims the exclusive use of the thing on behalf of another than himself.[^[219]]

5. The animus possidendi need not be specific, but may be merely general. That is to say, it does not necessarily involve any continuous or present knowledge of the particular thing possessed or of the possessor’s relation to it. A general intent with respect to a class of things is sufficient (if coupled with the necessary physical relation) to confer possession of the individual objects belonging to that class, even though their individual existence is unknown. Thus I possess all the books in my library, even though I may have forgotten the existence of many of them. So if I set nets to catch fish, I have a general intent and claim with respect to all the fish that come therein; and my ignorance whether there are any there or not does in no way affect my possession of such as are there. So I have a general purpose to possess my flocks and herds, which is sufficient to confer possession of their increase though unknown to me. So if I receive a letter, I have forthwith the animus possidendi with respect to its enclosure; and I do not first acquire possession of the cheque that is inside it, when I open the envelope and see it.[^[220]] But if, on the other hand, I buy a cabinet believing it to be empty, whereas it contains money hid in a secret drawer, I do not acquire possession of the money until I actually find it; for until then I have no animus with respect to it, either general or specific.[^[221]]

§ 98. The Corpus of Possession.

To constitute possession the animus domini is not in itself sufficient, but must be embodied in a corpus. The claim of the possessor must be effectively realised in the facts; that is to say, it must be actually and continuously exercised. The will is sufficient only when manifested in an appropriate environment of fact, just as the fact is sufficient only when it is the expression and embodiment of the required intent and will. Possession is the effective realisation in fact of the animus sibi habendi.

One of the chief difficulties in the theory of possession is that of determining what amounts to such effective realisation. The true answer seems to be this: that the facts must amount to the actual present exclusion of all alien interference with the thing possessed, together with a reasonably sufficient security for the exclusive use of it in the future. Then, and then only, is the animus or self-assertive will of the possessor satisfied and realised. Then, and only then, is there a continuing de facto exercise of the claim of exclusive use. Whether this state of facts exists depends on two things: (1) on the relation of the possessor to other persons, and (2) on the relation of the possessor to the thing possessed. We shall consider these two elements of the corpus possessionis separately.

§ 99. The Relation of the Possessor to other Persons.

So far as other persons are concerned, I am in possession of a thing when the facts of the case are such as to create a reasonable expectation that I will not be interfered with in the use of it. I must have some sort of security for their acquiescence and non-interference. “The reality,” it has been well said,[^[222]] “of de facto dominion is measured in inverse ratio to the chances of effective opposition.” A security for enjoyment may, indeed, be of any degree of goodness or badness, and the prospect of enjoyment may vary from a mere chance up to moral certainty. At what point in the scale, then, are we to draw the line? What measure of security is required for possession? We can only answer: Any measure which normally and reasonably satisfies the animus domini. A thing is possessed, when it stands with respect to other persons in such a position that the possessor, having a reasonable confidence that his claim to it will be respected, is content to leave it where it is. Such a measure of security may be derived from many sources, of which the following are the most important.[^[223]]

1. The physical power of the possessor. The physical power to exclude all alien interference (accompanied of course by the needful intent) certainly confers possession; for it constitutes an effective guarantee of enjoyment. If I own a purse of money, and lock it up in a burglar-proof safe in my house, I certainly have possession of it. I have effectively realised my animus possidendi, for no one can lay a finger on the thing without my consent, and I have full power of using it myself. Possession thus based on physical power may be looked on as the typical and perfect form. Many writers, however, go so far as to consider it the only form, defining possession as the intention, coupled with the physical power, of excluding all other persons from the use of a material object. We shall see reason to conclude that this is far too narrow a view of the matter.

2. The personal presence of the possessor. This source of security must be distinguished from that which has just been mentioned. The two commonly coincide, indeed, but not necessarily. Bolts, bars, and stone walls will give me the physical power of exclusion without any personal presence on my part; and on the other hand there may be personal presence without any real power of exclusion. A little child has no physical power as against a grown man; yet it possesses the money in its hand. A dying man may retain or acquire possession by his personal presence, but certainly not by any physical power left in him. The occupier of a farm has probably no real physical power of preventing a trespass upon it, but his personal presence may be perfectly effective in restraining any such interference with his rights. The respect shown to a man’s person will commonly extend to all things claimed by him that are in his immediate presence.

3. Secrecy. A third source of de facto security is secrecy. If a man will keep a thing safe from others, he may hide it; and he will gain thereby a reasonable guarantee of enjoyment and is just as effectively in possession of the thing, as is the strong man armed who keeps his goods in peace.

4. Custom. Such is the tendency of mankind to acquiesce in established usage, that we have here a further and important source of de facto security and possession. Did I plough and sow and reap the harvest of a field last year and the year before? Then unless there is something to the contrary, I may reasonably expect to do it again this year, and I am in possession of the field.

5. Respect for rightful claims. Possession is a matter of fact and not a matter of right. A claim may realise itself in the facts whether it is rightful or wrongful. Yet its rightfulness, or rather a public conviction of its rightfulness, is an important element in the acquisition of possession. A rightful claim will readily obtain that general acquiescence which is essential to de facto security, but a wrongful claim will have to make itself good without any assistance from the law-abiding spirit of the community. An owner will possess his property on much easier terms than those on which a thief will possess his plunder.[^[224]] The two forms of security, de facto and de jure, tend to coincidence. Possession tends to draw ownership after it, and ownership attracts possession.

6. The manifestation of the animus domini. An important element in the de facto security of a claim is the visibility of the claim. Possession essentially consists, it is true, not in the manifestation of the animus, but in the realisation of it. But a manifested intent is much more likely to obtain the security of general acquiescence than one which has never assumed a visible form. Hence the importance of such circumstances as entry, apprehension, and actual use.[^[225]]

7. The protection afforded by the possession of other things. The possession of a thing tends to confer possession of any other thing that is connected with the first or accessory to it. The possession of land confers a measure of security, which may amount to possession, upon all chattels situated upon it. The possession of a house may confer the possession of the chattels inside it. The possession of a box or a packet may bring with it the possession of its contents. Not necessarily, however, in any of those cases. A man effectually gives delivery of a load of bricks by depositing them on my land, even in my absence; but he could not deliver a roll of bank-notes by laying them upon my doorstep. In the former case the position of the thing is normal and secure; in the latter it is abnormal and insecure.

Notwithstanding some judicial dicta to the contrary, it does not seem to be true, either in law or in fact, that the possession of land necessarily confers possession of all chattels that are on or under it; or that the possession of a receptacle such as a box, bag, or cabinet, necessarily confers possession of its contents. Whether the possession of one thing will bring with it the possession of another that is thus connected with it depends upon the circumstances of the particular case. A chattel may be upon my land, and yet I shall have no possession of it unless the animus and corpus possessionis both exist. I may have no animus; as when my neighbour’s sheep, with or without my knowledge, stray into my field. There may be no corpus; as when I lose a jewel in my garden, and cannot find it again. There may be neither corpus nor animus; as when, unknown to me, there is a jar of coins buried somewhere upon my estate. So in the case of chattels, the possession of the receptacle does not of necessity carry with it the possession of its contents. As already stated, if I buy a cabinet containing money in a secret drawer, I acquire no possession of the money, till I actually discover it. For I have no animus possidendi with respect to any such contents, but solely with respect to the cabinet itself.

That this is so in law, no less than in fact, appears from the following cases:—

In Bridges v. Hawkesworth[^[226]] a parcel of bank-notes was dropped on the floor of the defendant’s shop, where they were found by the plaintiff, a customer. It was held that the plaintiff had a good title to them as against the defendant. For the plaintiff, and not the defendant, was the first to acquire possession of them. The defendant had not the necessary animus, for he did not know of their existence.

In R. v. Moore[^[227]] a bank-note was dropped in the shop of the prisoner, who on discovering it, picked it up and converted it to his own use, well knowing that the owner could be found. It was held that he was rightly convicted of larceny; from which it follows that he was not in possession of the note until he actually discovered it.

In Merry v. Green[^[228]] the plaintiff purchased a bureau at auction, and subsequently discovered money in it, hidden in a secret drawer and belonging to the vendor. The plaintiff thereupon appropriated the money; and it was held that in doing so he committed theft, as he obtained possession of the money not when he innocently bought the bureau, but when he fraudulently abstracted the contents of it.

In Cartwright v. Green[^[229]] a bureau was delivered for the purpose of repairs to a carpenter, who discovered in a secret drawer money which he converted to his own use. It was held that he committed larceny, by feloniously taking the money into his possession.

On the other hand the possession of the receptacle may confer possession of the contents, even though their existence is unknown; for there may at the time of taking the receptacle be a general intent to take its contents also. He who steals a purse, not knowing whether there is money in it, steals the money in it at the same time.

Thus in R. v. Mucklow[^[230]] a letter containing a bank-draft was delivered by mistake to the prisoner, whose name was identical with that of the person for whom the letter was intended. He received the letter innocently; but on subsequently opening it and finding that it was not meant for him, he appropriated the draft. It was held that he was not guilty of larceny. For the innocent possession of the letter brought with it the innocent possession of its contents, and no subsequent fraudulent dealing with the thing thus innocently obtained could amount to theft.

There are, however, certain cases which seem to indicate that the possessor of land possesses whatever is in it or under it.

In Elwes v. Brigg Gas Co.[^[231]] the defendant company took a lease of land from the plaintiff for the purpose of erecting gas works, and in the process of excavation found a prehistoric boat six feet below the surface. It was held that the boat belonged to the landlord, and not to the tenants who discovered it. Chitty, J., says of the plaintiff: “Being entitled to the inheritance ... and in lawful possession, he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat.... In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat.”

So in South Staffordshire Water Co. v. Sharman[^[232]] the defendant was employed by the plaintiff company to clean out a pond upon their land, and in doing so he found certain gold rings at the bottom of it. It was held that the company was in first possession of these rings, and the defendant, therefore, had acquired no title to them.

Cases such as these, however, are capable of explanation on other grounds, and do not involve any necessary conflict either with the theory of possession or with the cases already cited, such as Bridges v. Hawkesworth. The general principle is that the first finder of a thing has a good title to it against all but the true owner, even though the thing is found on the property of another person (Armory v. Delamirie,[^[233]] Bridges v. Hawkesworth). This principle, however, is subject to important exceptions, in which, owing to the special circumstances of the case, the better right is in him on whose property the thing is found. The chief of these exceptional cases are the following:—

1. When he on whose property the thing is found is already in possession not merely of the property, but of the thing itself; as in certain circumstances, even without specific knowledge, he undoubtedly may be. His prior possession will then confer a better right as against the finder. If I sell a coat in the pocket of which, unknown to me, there is a purse which I picked up in the street, and the purchaser of the coat finds the purse in it, it may be assumed with some confidence that I have a better right to it than he has, though it does not belong to either of us.

2. A second limitation of the right of a finder is that, if any one finds a thing as the servant or agent of another, he finds it not for himself, but for his employer. If I instruct a carpenter to break open a locked box for me, he must give up to me whatever he finds in it. This seems a sufficient explanation of such a case as Sharland’s. The rings found at the bottom of the pond were not in the Company’s possession in fact; and it seems contrary to other cases to hold that they were so in law. But though Sharland was the first to obtain possession of them, he obtained it for his employers, and could claim no title for himself.[^[234]]

3. A third case in which a finder obtains no title is that in which he gets possession only through a trespass or other act of wrongdoing. If a trespasser seeks and finds treasure in my land, he must give it up to me, not because I was first in possession of it (which is not the case), but because he cannot be suffered to retain any advantage derived from his own wrong. This seems a sufficient explanation of Elwes v. Brigg Gas Co. “The boat,” says Chitty, J.,[^[235]] “was embedded in the land. A mere trespasser could not have taken possession of it; he could only have come at it by further acts of trespass involving spoil and waste of the inheritance.” According to the true construction of the lease the tenants, though entitled to excavate and remove soil, were not entitled to remove anything else. They must leave the premises as they found them, save in so far as they were authorised to do otherwise by the terms of their lease.

§ 100. Relation of the Possessor to the Thing Possessed.

The second element in the corpus possessionis is the relation of the possessor to the thing possessed, the first being that which we have just considered, namely, the relation of the possessor to other persons. To constitute possession the animus domini must realise itself in both of those relations. The necessary relation between the possessor and the thing possessed is such as to admit of his making such use of it as accords with the nature of the thing and of his claim to it. There must be no barrier between him and it, inconsistent with the nature of the claim he makes to it. If I desire to catch fish, I have no possession of them till I have them securely in my net or on my line. Till then my animus domini has not been effectively embodied in the facts. So possession once gained may be lost by the loss of my power of using the thing; as when a bird escapes from its cage, or I drop a jewel in the sea. It is not necessary that there should be anything in the nature of physical presence or contact. So far as the physical relation between person and thing is concerned, I may be in possession of a piece of land at the other side of the world. My power of using a thing is not destroyed by my voluntary absence from it, for I can go to it when I will.

Some amount of difficulty or even uncertainty in coming to the enjoyment of a thing is not inconsistent with the present possession of it. My cattle have strayed, but they will probably be found. My dog is away from home, but he will probably return. I have mislaid a book, but it is somewhere within my house and can be found with a little trouble. These things, therefore, I still possess, though I cannot lay my hands on them at will. I have with respect to them a reasonable and confident expectation of enjoyment. But if a wild bird escapes from its cage, or a thing is hopelessly mislaid, whether in my house or out of it, I have lost possession of it. Such a loss of the proper relation to the thing itself is very often at the same time the loss of the proper relation to other persons. Thus if I drop a shilling in the street, I lose possession on both grounds. It is very unlikely that I shall find it myself, and it is very likely that some passer-by will discover and appropriate it.

CHAPTER XIV.
POSSESSION (Continued).

§ 101. Immediate and Mediate Possession.

One person may possess a thing for and on account of some one else. In such a case the latter is in possession by the agency of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate.

Of mediate possession there are three kinds.[^[236]] The first is that which I acquire through an agent or servant; that is to say through some one who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account, and my animus domini is therefore sufficiently realised in the facts.

The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognises my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower, hirer, or tenant at will. I do not lose possession of a thing because I have lent it to some one who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.[^[237]]

There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognised by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such a case I retain possession of the thing, so far as third persons are concerned. The animus and the corpus are both present; the animus, for I have not ceased, subject to the temporary right of another person, to claim the exclusive use of the thing for myself; the corpus, inasmuch as through the instrumentality of the bailee or pledgee, who is keeping the thing safe for me, I am effectually excluding all other persons from it, and have thereby attained a sufficient security for its enjoyment. In respect of the effective realisation of the animus domini, there seems to be no essential difference between entrusting a thing to an agent, entrusting it to a bailee at will, and entrusting it to a bailee for a fixed term, or to a creditor by way of pledge. In all these cases I get the benefit of the immediate possession of another person, who, subject to his own claim, if any, holds and guards the thing on my account. If I send a book to be bound, can my continued possession of it depend on whether the binder has or has not a lien over it for the price of the work done by him? If I lend a book to a friend, can my possession of it depend on whether he is to return it on demand or may keep it till to-morrow? Such distinctions are irrelevant, and in any alternative my possession as against third persons is unaffected.

A test of the existence of a true mediate possession in all the foregoing cases is to be found in the operation of the law of prescription. A title by prescription is based on long and continuous possession. But he who desires to acquire ownership in this way need not retain the immediate possession of the thing. He may let his land to a tenant for a term of years, and his possession will remain unaffected, and prescription will continue to run in his favour. If he desires to acquire a right of way by prescription, his tenant’s use of it is equivalent to his own. For all the purposes of the law of prescription mediate possession in all its forms is as good as immediate. In Haig v. West[^[238]] it is said by Lindley, L. J.: “The vestry by their tenants occupied and enjoyed the lanes as land belonging to the parish.... The parish have in our opinion gained a title to these parish lanes by the Statute of Limitations. The vestry have by their tenants occupied and enjoyed the lanes for more than a century.”

In the case of chattels a further test of the legal recognition of mediate possession in all its forms is to be found in the law as to delivery by attornment. In Elmore v. Stone[^[239]] A. bought a horse from B., a livery stable keeper, and at the same time agreed that it should remain at livery with B. It was held that by this agreement the horse had been effectually delivered by B. to A., though it had remained continuously in the physical custody of B. That is to say, A. had acquired mediate possession, through the direct possession which B. held on his behalf. The case of Marvin v. Wallace[^[240]] goes still further. A. bought a horse from B., and, without any change in the immediate possession, lent it to the seller to keep and use as a bailee for a month. It was held that the horse had been effectually delivered by B. to A. This was mediate possession of the third kind, being acquired and retained through a bailee for a fixed term. Crompton, J., referring to Elmore v. Stone, says:[^[241]] “In the one case we have a bailment of a description different from the original possession; here we have a loan; but in each case the possession of the bailee is the possession of the bailor; it would be dangerous to distinguish between such cases.”

In all cases of mediate possession two persons are in possession of the same thing at the same time. Every mediate possessor stands in relation to a direct possessor through whom he holds. If I deposit goods with an agent, he is in possession of them as well as I. He possesses for me, and I possess through him. A similar duplicate possession exists in the case of master and servant, landlord and tenant, bailor and bailee, pledgor and pledgee. In all such cases, however, there is an important distinction to be noticed. Mediate possession exists as against third persons only, and not as against the immediate possessor. Immediate possession, on the other hand, is valid as against all the world, including the mediate possessor himself. Thus if I deposit goods with a warehouseman, I retain possession as against all other persons; because as against them I have the benefit of the warehouseman’s custody. But as between the warehouseman and myself, he is in possession and not I. For as against him I have in no way realised my animus possidendi nor in any way obtained a security of use and enjoyment. So in the case of a pledge, the debtor continues to possess quoad the world at large; but as between debtor and creditor, possession is in the latter. The debtor’s possession is mediate and relative; the creditor’s is immediate and absolute. So also with landlord and tenant, bailor and bailee, master and servant, principal and agent, and all other cases of mediate possession.

Here also we may find a test in the operation of prescription. As between landlord and tenant, prescription, if it runs at all, will run in favour of the tenant; but at the same time it may run in favour of the landlord as against the true owner of the property. Let us suppose, for example, that possession for twenty years will in all cases give a good title to land, and that A. takes wrongful possession of land from X., holds it for ten years, and then allows B. to have the gratuitous use of it as tenant at will. In ten years more A. will have a good title as against X., for, as against him, A. has been continuously in possession. But in yet another ten years B., the tenant, will have a good title as against his landlord A., for, as between these two, the possession has been for twenty years in B.

To put the matter in a general form, prescription runs in favour of the immediate against the mediate possessor, but in favour of the mediate possessor as against third persons.

§ 102. Concurrent Possession.

It was a maxim of the civil law that two persons could not be in possession of the same thing at the same time. Plures eandem rem in solidum possidere non possunt.[^[242]] As a general proposition this is true; for exclusiveness is of the essence of possession. Two adverse claims of exclusive use cannot both be effectually realised at the same time. Claims, however, which are not adverse, and which are not, therefore, mutually destructive, admit of concurrent realisation. Hence there are several possible cases of duplicate possession.

1. Mediate and immediate possession coexist in respect of the same thing as already explained.

2. Two or more persons may possess the same thing in common, just as they may own it in common. This is called compossessio by the civilians.

3. Corporeal and incorporeal possession may coexist in respect of the same material object, just as corporeal and incorporeal ownership may. Thus A. may possess the land, while B. possesses a right of way over it. For it is not necessary, as we have already seen, that A.’s claim of exclusive use should be absolute; it is sufficient that it is general.

§ 103. The Acquisition of Possession.

Possession is acquired whenever the two elements of corpus and animus come into coexistence, and it is lost so soon as either of them disappears. The modes of acquisition are two in number, namely Taking and Delivery. Taking is the acquisition of possession without the consent of the previous possessor. The thing taken may or may not have been already in the possession of some one else, and in either case the taking of it may be either rightful or wrongful. Delivery, on the other hand, is the acquisition of possession with the consent and co-operation of the previous possessor. It is of two kinds, distinguished by English lawyers as actual and constructive.[^[243]] Actual delivery is the transfer of immediate possession; it is such a physical dealing with the thing as transfers it from the hands of one person to those of another. It is of two kinds, according as the mediate possession is or is not retained by the transferor. The delivery of a chattel by way of sale is an example of delivery without any reservation of mediate possession; the delivery of a chattel by way of loan or deposit is an instance of the reservation of mediate possession on the transfer of immediate.

Constructive delivery, on the other hand, is all which is not actual, and it is of three kinds. The first is that which the Roman lawyers termed traditio brevi manu, but which has no recognised name in the language of English law. It consists in the surrender of the mediate possession of a thing to him who is already in immediate possession of it. If, for example, I lend a book to some one, and afterwards, while he still retains it, I agree with him to sell it to him, or to make him a present of it, I can effectually deliver it to him in fulfilment of this sale or gift, by telling him that he may keep it. It is not necessary for him to go through the form of handing it back to me and receiving it a second time from my hands. For he has already the immediate possession of it, and all that is needed for delivery under the sale or gift is the destruction of the animus through which mediate possession is still retained by me.[^[244]]

The second form of constructive delivery is that which the commentators on the civil law have termed constitutum possessorium (that is to say, an agreement touching possession). This is the converse of traditio brevi manu. It is the transfer of mediate possession, while the immediate possession remains in the transferor. Any thing may be effectually delivered by means of an agreement that the possessor of it shall for the future hold it no longer on his own account but on account of some one else. No physical dealing with the thing is requisite, because by the mere agreement mediate possession is acquired by the transferee, through the immediate possession retained by the transferor and held on the other’s behalf. Therefore, if I buy goods from a warehouseman, they are delivered to me so soon as he has agreed with me that he will hold them as warehouseman on my account. The position is then exactly the same as if I had first taken actual delivery of them, and then brought them back to the warehouse, and deposited them there for safe custody.[^[245]]

The third form of constructive delivery is that which is known to English lawyers as attornment.[^[246]] This is the transfer of mediate possession, while the immediate possession remains outstanding in some third person. The mediate possessor of a thing may deliver it by procuring the immediate possessor to agree with the transferee to hold it for the future on his account, instead of on account of the transferor. Thus if I have goods in the warehouse of A., and sell them to B., I have effectually delivered them to B., so soon as A. has agreed with B. to hold them for him, and no longer for me. Neither in this nor in any other case of constructive delivery is any physical dealing with the thing required, the change in the animus of the persons concerned being adequate in itself.[^[247]]

§ 104. Possession not essentially the Physical Power of Exclusion.

According to a widely accepted theory the essence of corporeal possession is to be found in the physical power of exclusion. The corpus possessionis, it is said, is of two kinds, according as it relates to the commencement or to the continuance of possession. The corpus required at the commencement is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it. The corpus required for the retention of a possession once acquired may, on the other hand, consist merely in the ability to reproduce this power at will. Thus I acquire possession of a horse if I take him by the bridle, or ride upon him, or otherwise have him in my immediate personal presence, so that I can prevent all other persons from interfering with him. But no such immediate physical relation is necessary to retain the possession so acquired. I can put the horse in my stable, or let him run in a field. So long as I can go to him when I wish, and reproduce at will the original relation of physical power, my possession has not ceased. To this view of the matter, however, the following objections may be made.[^[248]]

1. Even at the commencement a possessor need have no physical power of excluding other persons. What physical power of preventing trespass does a man acquire by making an entry upon an estate which may be some square miles in extent? Is it not clear that he may have full possession of land that is absolutely unfenced and unprotected, lying open to every trespasser? There is nothing to prevent even a child from acquiring effective possession as against strong men, nor is possession impossible on the part of him who lies in his bed at the point of death. If I stretch a net in the sea, do I not acquire the possession of the fish caught in it, so soon as they are caught? Yet every other fisherman that passes by has more power of excluding me than I have of excluding him. So if I set traps in the forest, I possess the animals which I catch in them, though there is neither physical presence nor physical power. If in my absence a vendor deposits a load of stone or timber on my land, do I not forthwith acquire possession of it? Yet I have no more physical power over it than any one else has. I may be a hundred miles from my farm, without having left any one in charge of it; but I acquire possession of the increase of my sheep and cattle.

In all such cases the assumption of physical power to exclude alien interference is no better than a fiction. The true test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoyment, and there are other means of attaining this security than personal presence or power. It is true that in time of war the possession of a place must be obtained and defended by cannon and bayonets; but in the peaceful intercourse of fellow-citizens under the rule of law, possession can be acquired and retained on much easier terms and in much simpler fashion. The chances of hostile interference are determined by other considerations than that of the amount of physical force at the disposal of the claimant. We have to take account of the customs and opinions of the community, the spirit of legality and of respect for rightful claims, and the habit of acquiescence in established facts. We have to consider the nature of the uses of which the thing admits, the nature of the precautions which are possibly or usually taken in respect of it, the opinion of the community as to the rightfulness of the claim seeking to realise itself, the extent of lawless violence that is common in the society, the opportunities for interference and the temptations to it, and lastly but not exclusively the physical power of the possessor to defend himself against aggression. If, having regard to these circumstances and to such as these, it appears that the animus possidendi has so prospered as to have acquired a reasonable security for its due fulfilment, there is true possession, and if not, not.

2. In the second place it is by no means clear how it is possible for possession at its commencement and possession in its continuance to be made up of different elements. How can it be that possession at its inception involves actual physical power of exclusion, while in its continuance it involves merely the power of reproducing this primary relationship? Possession is a continuing de facto relation between a person and a thing. Surely, therefore, it must from beginning to end have the same essential nature. What is that nature? Savigny’s theory affords no answer. It tells us, at the most, how possession begins, and how it ceases; but we wish to know what it essentially and continuously is.

3. Thirdly and lastly, the theory which we are considering is inapplicable to the possession of incorporeal things. Even if it successfully explained the possession of land, it would afford no explanation of the possession of a right of way or other servitude. Here there is neither exclusion nor the power of exclusion. It is, on the contrary, the possessor of the servient land who has the physical power of excluding the possessor of the servitude. If I possess an easement of light, what power have I to prevent its infringement by the building operations of my neighbour? It is true that this is not a conclusive objection to Savigny’s analysis; for it remains perfectly open to him to rejoin that possession in its proper sense is limited to the possession of corporeal things, and that its extension to incorporeal things is merely analogical and metaphorical. The fact remains, however, that this extension has taken place; and, other things being equal, a definition of possession which succeeds in including both its forms is preferable to one which is forced to reject one of them as improper.

§ 105. Incorporeal Possession.

Hitherto we have limited our attention to the case of corporeal possession. We have now to consider incorporeal, and to seek the generic conception which includes both these forms. For I may possess not the land itself, but a way over it, or the access of light from it, or the support afforded by it to my land which adjoins it. So also I may possess powers, privileges, immunities, liberties, offices, dignities, services, monopolies. All these things may be possessed as well as owned. They may be possessed by one man, and owned by another. They may be owned and not possessed, or possessed and not owned.

Corporeal possession is, as we have seen, the continuing exercise of a claim to the exclusive use of a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the non-exclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example a trade-mark, a patent, or an office of profit).

In each kind of possession there are the same two elements required, namely the animus and the corpus. The animus is the claim—the self-assertive will of the possessor. The corpus is the environment of fact in which this claim has realised, embodied, and fulfilled itself. Possession, whether corporeal or incorporeal, exists only when the animus possidendi has succeeded in establishing a continuing practice in conformity to itself. Nor can any practice be said to be continuing, unless some measure of future existence is guaranteed to it by the facts of the case. The possession of a thing is the de facto condition of its continuous and secure enjoyment.

In the case of corporeal possession the corpus possessionis consists, as we have seen, in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential. I may lock my watch in a safe, instead of keeping it in my pocket; and though I do not look at it for twenty years, I remain in possession of it none the less. For I have continuously exercised my claim to it, by continuously excluding other persons from interference with it. In the case of incorporeal possession, on the contrary, since there is no such claim of exclusion, actual continuous use and enjoyment is essential, as being the only possible mode of exercise. I can acquire and retain possession of a right of way only through actual and repeated use of it. In the case of incorporeal things continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.

Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The Roman lawyers distinguish between possessio juris and possessio corporis, and the Germans between Rechtsbesitz and Sachenbesitz. Adopting this nomenclature, we may define incorporeal possession as the continuing exercise of a right, rather than as the continuing exercise of a claim. The usage is one of great convenience, but it must not be misunderstood. To exercise a right means to exercise a claim as if it were a right. There may be no right in reality; and where there is a right, it may be vested in some other person, and not in the possessor. If I possess a way over another’s land, it may or may not be a right of way; and even if it is a right of way, it may be owned by some one else, though possessed by me. Similarly a trade-mark or a patent which is possessed and exercised by me may or may not be legally valid; it may exist de facto and not also de jure; and even if legally valid, it may be legally vested not in me, but in another.[^[249]]

The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership. Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. Now in the case of ownership we have already seen that this distinction between things and rights is merely the outcome of a figure of speech, by which a certain kind of right is identified with the material thing which is its object. A similar explanation is applicable in the case of possession. The possession of a piece of land means in truth the possession of the exclusive use of it, just as the possession of a right of way over land means the possession of a certain non-exclusive use of it. By metonymy the exclusive use of the thing is identified with the thing itself, though the non-exclusive use of it is not. Thus we obtain a distinction between the possession of things and the possession of rights, similar to that between the ownership of things and the ownership of rights.[^[250]]

In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are. Possession in its full compass and generic application means the continuing exercise of any claim or right.

§ 106. Relation between Possession and Ownership.

“Possession,” says Ihering,[^[251]] “is the objective realisation of ownership.” It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible; and indeed they normally coexist. But where there is no law, or where the law is against a man, he must content himself with the precarious security of the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also. Beati possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong, or the special nature of the claims in question. Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itself as ownership. The law of prescription determines the process by which, through the influence of time, possession without title ripens into ownership, and ownership without possession withers away and dies.[^[252]]

Speaking generally, ownership and possession have the same subject-matter. Whatever may be owned may be possessed, and whatever may be possessed may be owned. This statement, however, is subject to important qualifications. There are claims which may be realised and exercised in fact without receiving any recognition or protection from the law, there being no right vested either in the claimant or in any one else. In such cases there is possession without ownership. For example, men might possess copyrights, trade-marks, and other forms of monopoly, even though the law refused to defend those interests as legal rights. Claims to them might be realised de facto, and attain some measure of security and value from the facts, without any possibility of support from the law.

Conversely there are many rights which can be owned, but which are not capable of being possessed. They are those which may be termed transitory. Rights which do not admit of continuing exercise do not admit of possession either. They cannot be exercised without being thereby wholly fulfilled and destroyed; therefore they cannot be possessed. A creditor, for example, does not possess the debt that is due to him; for this is a transitory right which in its very nature cannot survive its exercise. But a man may possess an easement over land, because its exercise and its continued existence are consistent with each other. It is for this reason that obligations generally (that is to say, rights in personam as opposed to rights in rem) do not admit of possession. It is to be remembered, however, that repeated exercise is equivalent in this respect to continuing exercise. I may possess a right of way through repeated acts of use, just as I may possess a right of light or support through continuous enjoyment. Therefore even obligations admit of possession, provided that they are of such a nature as to involve a series of repeated acts of performance. We may say that a landlord is in possession of his rents, an annuitant of his annuity, a bondholder of his interest, or a master of the services of his servant.[^[253]]

We may note finally that, although incorporeal possession is possible in fact of all continuing rights, it by no means follows that the recognition of such possession, or the attribution of legal consequences to it, is necessary or profitable in law. To what extent incorporeal possession exists in law, and what consequences flow from it, are questions which are not here relevant, but touch merely the details of the legal system.

§ 107. Possessory Remedies.

In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems,[^[254]] however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who retakes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.

Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).

This duplication of remedies, with the resulting provisional protection of possession, has its beginnings in Roman law. It was taken up into the canon law, where it received considerable extensions, and through the canon law it became a prominent feature of medieval jurisprudence. It is still received in modern Continental systems; but although well known to the earlier law of England, it has been long since rejected by us as cumbrous and unnecessary.

There has been much discussion as to the reasons on which this provisional protection of possession is based. It would seem probable that the considerations of greatest weight are the three following.

1. The evils of violent self-help are deemed so serious that it must be discouraged by taking away all advantages which any one derives from it. He who helps himself by force even to that which is his own must restore it even to a thief. The law gives him a remedy, and with it he must be content. This reason, however, can be allowed as valid only in a condition of society in which the evils and dangers of forcible self-redress are much more formidable than they are at the present day. It has been found abundantly sufficient to punish violence in the ordinary way as a criminal offence, without compelling a rightful owner to deliver up to a trespasser property to which he has no manner of right, and which can be forthwith recovered from him by due course of law. In the case of chattels, indeed, our law has not found it needful to protect possession even to this extent. It seems that an owner who retakes a chattel by force acts within his legal rights. Forcible entry upon land, however, is a criminal offence.

2. A second reason for the institution of possessory remedies is to be found in the serious imperfections of the early proprietary remedies. The procedure by which an owner recovered his property was cumbrous, dilatory, and inefficient. The path of the claimant was strewn with pitfalls, and he was lucky if he reached his destination without disaster. The part of plaintiff in such an action was one of grave disadvantage, and possession was nine points of the law. No man, therefore, could be suffered to procure for himself by violence the advantageous position of defendant, and to force his adversary by such means to assume the dangerous and difficult post of plaintiff. The original position of affairs must first be restored; possession must first be given to him who had it first; then, and not till then, would the law consent to discuss the titles of the disputants to the property in question. Yet however cogent such considerations may have been in earlier law, they are now of little weight. With a rational system of procedure the task of the plaintiff is as easy as that of the defendant. The law shows no favour to one rather than to the other.

3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership. It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to those of his opponent. Every man should bear his own burden. He who takes a thing by force must restore it to him from whom he has taken it; let him then prove, if he can, that he is the owner of it; and the law will then give to him what it will not suffer him to take for himself. But English law has long since discovered that it is possible to attain this end in a much more satisfactory and reasonable way. It adjusts the burden of proof of ownership with perfect equity, without recourse to any such anomaly as the protection of the possessor against the owner. This it does by the operation of the three following rules:

1. Prior possession is prima facie proof of title. Even in the ordinary proprietary action a claimant need do nothing more than prove that he had an older possession than that of the defendant; for the law will presume from this prior possession a better title. Qui prior est tempore potior est jure.

2. A defendant is always at liberty to rebut this presumption by proving that the better title is in himself.

3. A defendant is not allowed to set up the defence of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiff’s claim, that neither the plaintiff nor he himself, but some third person, is the true owner. Let every man come and defend his own title. As between A. and B. the right of C. is irrelevant.

By the joint operation of these three rules the same purpose is effected as was sought in more cumbrous fashion by the early duplication of proprietary and possessory remedies.[^[255]]