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POSSESSION (Lat. possessio, possidere...

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Originally appearing in Volume V22, Page 174 of the 1911 Encyclopedia Britannica.
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POSSESSION (See also:Lat. possessio, possidere, to possess) , in See also:law, a See also:term derived from See also:Roman law. The Roman conception of possession has been generally adopted, but not the Roman deductions from the conception. The subject of possession has become more difficult owing to the various senses in which the term has been interpreted. Thus it has been said to be either a right or a fact conferring a right, or both together. The latter is the view of See also:Savigny, the leading authority upon the subject (Recht See also:des Besitzes, translated by See also:Sir See also:Erskine See also:Perry, 1848). Further, there is a want of agreement among legal writers as to the amount of right or rights that it confers. All that can be said with safety is that possession stands in a position intermediate between See also:simple detention and See also:absolute ownership, and that it implies two elements, See also:physical detention and See also:mental intention to hold the thing possessed as one's own. These difficulties being See also:borne in mind, the See also:definition of W. A. See also:Hunter may be accepted: " Possession is the occupation of anything with the intention of exercising the rights of ownership in respect of it " (Roman Law, p. 209). Possession is inchoate or incomplete ownership; it is on its way to become ownership.

In the See also:

case of the public domain of See also:Rome (ager publicus) the possession was really the important See also:matter, the dominium being practically of no value. Possession in Roman law was either natural or See also:civil. The former was See also:mere occupation, the latter such occupation as ripened by See also:prescription into ownership. Possession exclusive against the See also:world (including the true owner) was called " adverse possession." A See also:servitude, such as a right of way, could not be held in true possession, but was said to be in " quasi-possession." The quasi-possessor, however, had possessory remedies. In Roman law a broad distinction was See also:drawn between possession and ownership (dominium).' They were protected by different remedies—possession by See also:interdict, ownership by See also:action. This difference can only be explained by See also:history. Here again, unfortunately, authorities differ. According to Savigny, a Roman See also:citizen who had become a See also:tenant of See also:part of the ager publicus could not by any length of holding obtain more than a quasi-ownership, but one of which it would have been morally unjust to have deprived him. " The only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessory interdicts, See also:summary processes of Roman law which were either expressly devised by a The distinction is very important, as it affects the See also:contract of See also:sale. The contract was not to See also:transfer ownership, as in See also:English law, but only vacua possessio. 173 the See also:praetor for their See also:protection, or else, according to another theory, had in older times been employed for the provisional See also:maintenance of possessions pending the See also:settlement of questions of legal right " (See also:Maine, See also:Ancient Law, ch. viii.). Savigny regards the protection of possession as an See also:extension of the protection of the See also:person.

The same view was taken by the English See also:

court of See also:exchequer in See also:Rogers v. See also:Spence, 13 M. & W. R. p. 581. According to Hunter (Roman Law, pp. ao6, 221), Savigny overlooked the needs of aliens. It was the needs of aliens, incapable of the full proprietary rights of Roman citizens, that led to the invention by the praetor of a means of giving them equitable rights in the See also:land, and protecting them in the enjoyment of these rights. Savigny attributes only two rights to possession in Roman law—acquisition of ownership by possession for a given See also:time (usucapio, longi temporis possessio) and protection of possession from disturbance (interdictum). Others have included further rights—inter alia, the right to use force in See also:defence of possession, and the right to have the See also:burden of See also:proof, in a contest as to the See also:title, thrown upon the adversary: " In pari causa possessor potior haberi debet." The position of the possessor in Roman law was very strong. If a See also:bona fide possessor, he could bring an action for furtum even against the owner, if a See also:mala fide possessor of land, he was so far protected that he could not be ejected by force, A mala fide possessor of movables could, however, acquire no rights.' It has been already stated that there is both a physical and a mental See also:element in the conception of possession. This does not necessarily mean that See also:corporal contact is in all cases requisite, or that the intention to hold the thing possessed as one's own may not be abandoned for a time. The See also:control may be potential as well as actual.

An See also:

estate may be possessed without the possessor going upon the land at all, and the possession of goods may be given by delivering the See also:key of the warehouse in which they are stored. In See also:international law the possession of part as giving a title to the whole has been of See also:great importance (see INTERNATIONAL LAW). Where goods are pledged or bailed for a specific purpose the intention of the pledgor or bailor to hold them as his own is suspended during the existence of the limited right of the pledgee or bailee, to whom a fragment of the possession has passed. In Roman law the pledgor had possessio ad usucapionem, the pledgee possessio ad interdicta. The possession of the pledgee or bailee has been called " derivative possession." Possession may be exercised through another (" animo nostro, corpore alieno "), as through a servant, who has not true possession.' Possession so exercised has been called " representative possession." As soon as the representative determines to assume control on his own behalf or to submit to the control of another, the possession of the See also:principal is gone. Possession may be transferred or lost: It is lost when either the corpus or the animus (to use the terms of Roman law) ceases to exist. It may be lost by the representatives in cases where the principal might have lost it. In both Roman and English law the possessory tended to supersede the proprietary remedies from their greater convenience—that is to say, the See also:plaintiff based his claim or the See also:defendant his right upon possession rather than See also:property. The English possessory action may have been directly suggested by the interdict. See also:Bracton (ro3b) identifies the See also:assise of novel disseisin, the most See also:common See also:form of possessory action, with the interdict See also:uncle vi. In See also:England See also:ejectment had practically superseded other real actions before the latter were (with the exception of See also:dower, See also:writ of dower and quare impedit) expressly abolished by the Real Property See also:Limitation See also:Act 1833, s. 36.

The action for the recovery of land, introduced by the Judicature Acts, is the See also:

modern representative of the action of ejectment. ' This does not agree with English law, where in certain cases a thief can give a See also:good title to stolen goods, though he has no title himself. ' Much of the law of See also:master and servant is based upon the Roman law of master and slave. The servant, like the slave, has not possession of his master's goods even though they are in his custody, unless, indeed, the circumstances are such that he ceases to be a servant and becomes a bailee. The right of a party to recover possession is enforced by a writ of possession. Possession gives in English law, speaking generally, much the same rights as in Roman law. Thus it serves to found 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 necessary) that he had no See also:notice to quit. The See also:chief See also:differences between Roman and English law, arising to some extent from the differences in the history of the two systems, are that the former did not give to derivative possessors (except in the case of See also:pledge) the remedies of possessors, as does English law, and that Roman law is stricter than English in requiring that possession to found usucapio should (except in the case of See also:jus See also:aquae ducendae ) be ex justo titulo, or under See also:colour of right (see PRESCRIPTION). There is one case of constructive possession which is See also:peculiar to English law—that is, where possession is said to be given by a See also:deed operating under the See also:Statute of Uses (see " See also:Orme's Case," L. R. 8, C.

P. p. 281). In English law the See also:

doctrine of possession becomes practically important in the following cases.. (I) Possession serves as a convenient means of See also:division of estates (see REAL PROPERTY). One of the divisions of estates is into estates in possession and estates in reversion or See also:remainder. It also serves as a division of See also:personal property (q.v.). A See also:close 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 wrong-doer. In the case of real property it is regarded as prima facie See also:evidence of See also:seisin.'- In the case of personal property the mere possession of a finder is sufficient to enable him to maintain an action of See also:trover against one who deprives him of the See also:chattel' (see the leading case of Armory v. Delamirie, 1 Str. 504). (3) What is called " unity of possession " is one of the means whereby an See also:easement is extinguished.

Thus the owner of close A may have had a right of way over close B, while the latter belonged to a different owner. If the two closes come to be owned by the same person, the right of way is extinguished, but may under certain circumstances revive on the separation of the ownership. (4) Possession is very important as an element in determining the title to goods under 13 Eliz. c. 5, the Bills of Sale Act 1878 and the See also:

Bankruptcy Acts 1883 to 189o. It may be said that as a See also:general See also:rule retention of possession by the transferor or an absolute See also:assignment or a colourable delivery of possession to the transferee is strong prima facie evidence of See also:fraud. (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 See also:FACTOR). (6) In criminal law the question of possession is important in See also:founding the distinction between See also:larceny and See also:embezzlement. If the goods are in the possession of the master and he gives them to the custody of his servant for a specific purpose and the servant steals them, it is larceny; if they have never come into the master's possession, as if a clerk receives See also:money on his master's behalf, it is embezzlement. See also:Recent possession of stolen goods is always regarded as a presumption that the person in whose possession they are See also:stole them or received them knowing them to have been stolen. In the case of a See also:charge of receiving stolen goods evidence may be given that there was found in the possession of the accused other property stolen within the preceding See also:period of twelve months, 34 & 35 Vict. c. 112, S. 19.

(For possession in criminal law, see See also:

Stephen, See also:Digest of the Criminal Law, See also:note xi.) (7) Actions of possession of See also:ships fall within the See also:jurisdiction of the See also:admiralty division. This jurisdiction in the case of See also:British vessels depends upon the Admiralty Court Act 1861 (24 Vict. c. to, s. 8), in the case of See also:foreign vessels (in which the jurisdiction is rarely exercised) upon the general See also:powers of the court as a maritime court. The doctrines of- adverse possession (in the old English sense, which was not identical with the Roman law, for the real owner must have actually or by fiction been disseised) and of possessio fratris are now of only antiquarian See also:interest. The Statutes of Limitation have superseded the first. The only question now is, not whether possession has been adverse or not, but whether twelve years have elapsed since the right accrued. The See also:maxim " possessio fratris de feodo simplici sororem facit esse haeredem " (See also:Coke upon See also:Littleton, 1 " Seisin " 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 (Nqy, See also: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 See also:bailiff or servant of the landlord. But he certainly has possessory remedies, like the quasi-possessor in Roman law. 2 Compare the See also:Code See also:Napoleon, See also:art. 2279: " En fait de meubles la possession vaut titre."14b) has been altered by the rule of descent introduced by the See also:Inheritance Act 1833, under which descent is traced from the purchaser.

At one time possessory suits were occasionally maintained in England, and more frequently in See also:

Ireland, for the quieting of possession after proof of three years' possession before the filing of the See also:bill. But such suits are now obsolete (see See also:Neill v. See also:Duke of See also:Devonshire, 8 A. C. 146). There was one characteristic case in old English law in which possession was maintained by means of what was called " continual claim," made yearly in due form, where the person having the right was prevented by force or fear from exercising it (Coke upon Littleton, 253b). Continual claim was abolished by the Real Property Limitation Act 1833, S. 1I. See also:Scotland.—In Scotland possessory actions still exist eo nomine. Actions of molestation, of removing, and of mains (payments) and duties are examples. A possessory See also:judgment is one which entitles a person who has been in possession under a written title for seven years to continue his possession (See also:Watson, Law See also:Diet., s.v. " Possessory Judgment ").

See also:

United States.—Here the law in general agrees with that of England. Possessory rights are taxed in some of the states. See also:Louisiana follows Roman law closely. Possession of incorporeal rights (to use the unscientific See also:language of the Code) is called quasi-possession, and the division of possession into natural and civil is maintained (Civil Code, ss. 3389-3419). In addition to the authorities cited may be mentioned See also:Smith, Diet. of Antiquities, s.v. " Possessio "; See also:Markby, Elements of Law; See also:Holland, Elements of See also:Jurisprudence; See also:Holmes, The Common Law (lest. vi.); See also:Pollock and See also:Wright, Possession in the Common Law. (J.

End of Article: POSSESSION (Lat. possessio, possidere, to possess)

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