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A first book of jurisprudence for students of the common law online

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continue the name and wealth of his ancestors,
to leave the world with the assurance that they
may be continued in his posterity. For these
ends law must do niuclT. They might, even
without law, not wholly fail to be compassed
after some sort, but the result would be poor
and precarious. And what the law must do
is much more than the protection of existing
occupation and enjoyment. Not only use but
disposal is now in question ; and we cannot
protect the disposal of land and goods without
regulating it. Conflicting claims have to be
dealt with ; we must have rules for knowing
what dispositions are effectual, which among many
claims are rights entitled to prevail.

We pass beyond the mere defence of possession, Title.
and we have to adjudge on which side is the better


right to possess and enjoy the subject of dispute.
It has to be considered not only whether a man
has been deprived of possession, " disseised " in the
language of the Common Law, but who is the right
heir, whether there has been a perfect sale, whether
a will can stand. In one word, possession is a
matter of fact, or at least founded in fact ; whereas
title, as the absolutely or relatively best right to a
thing which may be in dispute, is matter of law,
not only defined but created by law. The law may
restrain powers of use ; it must determine powers
of disposal. When we get beyond actual control
and occupation, the extent of our power over things
is what the law declares it to be. "A man," as
Littleton said, ''cannot have a more large or greater
estate of inheritance than fee simple." ^ This does
not mean that having an estate to oneself and one's
heirs is in the Common Law the technical expression
of the utmost conceivable degree of disposing power.
Littleton could not have meant this, in fact, for
when he wrote these words a tenant in fee simple
could not leave his land by will except in a few
places where local custom allowed it. The words
mean exactly what they say, namely, that the
powers of use and disposal, such as they are

1 Litt. § 11.


which are incident to an estate in fee simple
are, as regards whatever can be the subject
of freehold tenure, the highest known to the

Still more is this the case with regard to partial Partial

. modes of

and limited modes of enjoyment. When a man enjoyment

claims to have the use of his neighbour's land in law.

some way, — to ride across it, to get water from a

well, to cut firewood, to dig gravel, — the first question

is what rights of that kind the law will recognise.

The measure and the value of such rights depend

on their legal definition. We may say of them for

this reason — not because they are incorporeal, which

has already appeared not an adequate ground ^ —

that " in iure consistunt." One step farther, and

we come to claims, not of any direct use or profit

to be had by one's own acts, but to restr-ain a

neighbour from acts which, if done in the use of

his own land or goods, would in some way diminish

our use or enjoyment of what belongs to us. A

claim not to have one's windows darkened by new

building is a common example, and perhaps the

most striking. Here everything depends on the

rule ; we do not know whether there can be any

right or legal interest at all until we know whether

1 P. 134 above.



occupation of a house is ever, and if so when and
on what conditions, deemed to carry with it the
power of objecting to have the windows darkened.
The English rules as to " ancient lights " have, in
fact, not been received in the United States
generally, so that the law and practice of the tAvo
countries are quite different. Ligjit, or the benefit
of light, is in itself not a thing at all in the legal
sense any more than it is matter in the sense of the
physicist; and the question is how far the enjoyment,
in some definite manner and measure, of that which in
itself is common to all the world can or does give rise
to definite rights to be free from interruption in such

Ownership. Owncrshij) may be described as the entirety of
the powers of use and disposal allowed by law. This
implies that there is some power of disposal, and in
modern times we should hardly be disposed to call a
person an owner who had no such power at all,
though we are familiar with " limited owners " in
recent usage. If we found anywhere a system of
law which did not recognise alienation by acts of
parties at all, we should be likely to say not that the
powers of an owner were very much restricted in
that system, but that it did not recognise ownership.
The term, however, is not strictly a technical one in


the Common Law ; ^ we shall presently see why. We
must not suppose that all the powers of an owner
need be exerciseable at once and immediately ; he
may remain owner though he has parted with some
of them for a time. He may for a time even part
with his whole powers of use and enjoyment, and
suspend his power of disposal, provided that he
reserves, for himself or his successors, the right of
ultimately reclaiming the thing and being restored
to his power. This is the common case of hiring
land, buildings, or goods. Again, the owner's
powers may be limited in particular directions
for an indefinite time by rights as permanent in
their nature as ownership itself. Such is the
case where the owner of Whiteacre has a ricrht
of way over his neighbour's field of Blackacre.
As this example shows, what is thus subtracted
from one owner's powers is generally added to
another's. In short, the owner of a thing is not
necessarily the person who at a given time has
the whole power of use and disposal ; very often j
there is no such person. We must look for the j
person having the residue of all such power when I

' It occurs ill modern Acts of railiaiueiit, sometimes with the
result of producing difiicnlties. See Arrow i^hipping Co. v. Tyne
Commissioners [1894] A.C. 508. ' Ti-ue ow ner " has a distinct


we have accounted for every detached and limited
portion of it ; and he will be the owner even if
the immediate power of control and use is else-
where. In the same way a political sovereign does
not lose his independence merely because he has
made a treaty by which he has agreed to forgo
or limit the exercise of his sovereign power in
particular respects.^
Distinction We are now in a position to take note of the
sion, manner in which ownership differs from possession

ownership,' ,,..,., . ,

real rights, on the onc hand, and limiteck rights over particular
things (iitra in re, aliena) on the other. Possession
in fact — the effective and exclusive control of a
thing — is prior to ownership and indeed to every
legal rule and idea. The facts which we call actual
or physical possession would still exist in a society
where there was no recognition of individual pro-
perty. But possession, as a fact, is interesting to
lawyers only so far as legal results and incidents
may attach to it ; ^ and to give definite rights to a
possessor because he is in possession is to admit
individual rights of exclusive use and ' enjoyment.
"We say because he is in possession. A system of

' Mighdl V. Sultan of Jvhore [1894] 1 g.B. 149, C.A.

- Cp. Possession in the Common Law (by the late Mr. Justice
Wright and the present writer), p. 10, and see the first chapter
of that book for detailed discussion.


law wliicli merely forbade personal violence might
incidentally protect possession so far as any one
who used actual violence in dispossessing another
might thereby render himself liable to a penalty or
damages. This would not be saying anything of
possession except that it was not a crime which
deprived the possessor of his ordinary personal
rights, or a condition in itself odious to the law.
Still less does this involve any connection of pos-
session with title. When possession as such is
regarded as a proper subject of protection, that is to
say, when dispossession without just cause (apart
from any violence or physical damage incidental to
the act) is treated as calling for a remedy, then
the relation to ownership becomes apparent. If a
person out of possession is to have a standing-point
at all, possession must be capable of being wrongful
as well as rightful. There must be rights to
possess, or to be put in possession, that can be
severed from present possession. There must be
room for conflicting claims to possession, and rules
for deciding which of two claimants has the better
right to possess the thing in dispute.

Now this brings us to very close quarters with Rigiit to
ownership. Eor ownership, as the entirety of legal
powers of use and disposal, nmst include, as the


most important of those powers, in fact, as the one
thing by which alone the rest can be made effective,
the right to maintain or claim possession; a right
which, though it may be suspended or deferred,
cannot be wholly dissociated from an owner's
relation to the thing owned.-^ Again, ownership is
most commonly and completely manifested in actual
possession and use. To deal with a thing at one's
will is to deal with it like an owner ; in the
absence of manifest reason to tlie contrary, we
suppose that a man is or claims to be owner of
anything over which he exercises indefinite control.
/ Thus active possession is a normal index of owner-
ship (though by no means the only one even in
common life), and the right to possess (whether
immediate or not) is a necessary incident of owner-
ship, or may perhaps rather be called ownership
itself in its active or dynamic aspect. One who is
out of possession and has a rightful claim to possess
has need of the law's assistance. When he has
recovered possession, he has not any need to ask

'' It may be, by reason of legal rules liaving lagged behind the
facts of life and the convenience of mankind, tliat the facts are at
last recognised only with the lielp of artil'ices or lictions. There
may be nominal owners who cannot exercise any right of ownership
for their own benefit. Separation of benelicial inteiest from legal
title has occurred in both Roman and English law. But tliere is
no need to dwell on this now.


the law to do more for him. Once in possession
he can deal with his own in any lawful manner.

Hence it is commonly sufficient for an owner Value of


to rely on his right to possession ; and as it is remedies to

• 1 1 1 owners.

commonly easier to prove the less right than the
greater, not to speak for the present of the manner
in which this works out in detail, it is often prefer-
able to claim possession only. Nay more, it is
possible for ownership to be sufficiently guarded for
all practical purposes by a system of remedies
which omits, or has come to omit, any such solemn
and express form of asserting ownership as that to
which the Eomans emphatically gave the name of
Vindication. In the Common Law this has actually
happened. For some centuries all practical remedies
for the recovery of both land and goods have been
possessory, and property has meant, for judicial
purposes, the right, or the best right, to possess.
Conversely, that which a man was entitled to
possess not only was correctly described by him in
pleading as res sua, but could not be described in
any other way.^

But this leads us to a further development. Possession

. as evidence

Possession and use being the common outward of title,
signs of ownership, it is reasonable to presume, in

^ Holmes, TIic Conimon Law, p. 242.


the absence of proof to the contrary, that existing
peaceable possession is rightful, and further to infer
ownership from the right to possess which we have
thus presumed. Hence we treat the actual pos-
sessor not only as legal possessor but as owner, as
against every one who cannot show a better right.
As English lawyers say concerning interests in land,
possession is prima facie evidence of seisin in fee :
that is, not of legal possession or seisin alone, but
of seisin coupled with the largest powers of use and
disposal allowed by law. Then, if we regard the
possessor as being rightfully in the exercise of
control, we must allow him the powers of an owner
within the limits of his apparent right. Not only
his acts of use and occupation but his acts of
disposal must be valid against every one who
cannot make out a superior claim. And when the
superior claim, if any such there be, ceases to be
available, the rights founded on possession will be
indistinguishable from the rights of ownership. In
the case of movable goods which pass from hand
to hand without formality this becomes obvious, for
in that case possession is often not merely the
natural and usual proof of ownership, but the only
proof. We have come then to distinctly recognising
possession as an origin of ownership, a " commence-


ment of title " as our law calls it. Again we see
that not only we have thus to recognise it, but
a system of law can get on without recognising
any other origin. Continuous possession is quite
capable of being, not merely a possible foundation
of ownership, but its only foundation and evidence.
And this, once more, is exactly what has happened
in the Common Law. With very few exceptions,^
possession traced through a chain of lawful transfer
or succession, for a time long enough to exclude any
reasonable apprehension of adverse claims, was the
only acceptable proof of title in this country before
the partial introduction of a system of registration ;
it is still the prevailing one.

So far we have assumed that tlie possessor starts Defects of


from what the Romans called a "just cause" of
possession : he lias purchased from some one who
was apparently entitled, or has entered, after the
former holder's death, as the nearest heir known or
reasonably supposed to be living, or as the person
answering a description by which the next taker of
the estate has been pointed out in a settlement or
will. In any one of these and such like matters,
error, though exceptional, is possible. Some element

' As where particular lands have been bestowed and made
inalienable by Parliament as a reward for signal pubirc'iervice.


of due form may have been lacking ; a man not heard
of for many years may have been alive ; an obscure
disposition may have been wrongly interpreted.
Where innocent cause of error exists, it is easy to
allow (not to go into details) that the defect shall
be curable by lapse of time, and that in the mean-
while the possessory title shall be respected by the
world at large as if it were perfect. Hugh, a mere
stranger, shall not disturb Giles or Giles's heirs and
assigns with impunity merely because Peter may
have had better right than Giles.
Wrongful Now let US take the harder case of a possession

possession . ■

as origin of Dcgun by wroug. With or Without a more or less
* ' plausible claim of right Peter has turned out John,
disseised him as our fathers said, whereas John's
title is really the better. Tlius Peter starts without
any legal merits in his own person, whether he is
or not morally excusable. John will of course
have his remedy, subject to whatever rules of law
require parties to assert' their rights within due
time. Peter, having gained actual possession, must
be protected against mere extraneous violence. That
is required, as we have already noted, for the pre-
servation of peace and order. If Peter has done
wrong in taking possession, redress is for the true
owner to seek, punishment (if any) for the State to


iufiict. But is a person wlio comes into Peter's
place as heir or purchaser, or the successors of
any such person, to be no better off? We have
allowed that the apparently rightful possessor is to
be treated as owner for purposes of disposition as
well as use. Now tliis principle is admitted partly
for his own benefit and protection, but also for the
benefit and protection of those who may deal with
him as owner on the strength of his apparently
rightful title. Considering then the position of a
dispossessor, we have to bear in mind that the
wrongfulness of his possession is by no means
always or necessarily apparent to those who may
come after him by purchase or otherwise. They
may be and often will be no less deserving than the
successors of an apparent owner whose possession
began with just cause. Hence it is reasonable to
protect them in the same manner as against every
one who can show no better right. In so doing the
law must take its chance of protecting some persons
who are undeserving. But the deserving ones, those
who deal in good faith with persons reasonably
appearing to be entitled, are the majority, and it is
better to favour some unjust than to vex many just
occupiers. Thus there is nothing anomalous in
accepting possession, without regard to its actual


origin, as founding a right which, though subject to

whatever better rights may exist, is invested as

against the world at Large with all the incidents of

ownership except the power of using any remedy

that, like the Eoman Vindication, is appropriated

to the full right of ownership. The possessor is in

a relative sense an owner ; possession, in our English

phrase, is a root of title. Bcati possidentes is a true

maxim of law, not a mere empirical expression of the

natural advantages arising from actual occupation.^

Historical The foregoiug explanation is of course analytical

possession and taken from a modern point of view. Historic-

ship!^'"^^" ally the main outline of the process is much simpler,

though the details are extremely complex. The notion

of possessing is really both much easier and much

earlier than that of owning. Archaic habits of thought

find the utmost difficulty in conceiving ownership ;

as severed from possession, or a transfer of anything

as being effectual without something like a visible h

transfer of control, a physical delivery or induction, J

So far as there is any conception of ownership, it is

realised only through possession. The Eoman law

of dominuirii is essentially modern law. Nay, more,

' The statement in the text went a little beyond positive or at
least undisputed English authority when it was written. See now
Dalton V. Fitzijerald [1897] 2 Cli. 86, and Lord Justice (now Lord)
Lindley's judgment at p. i'O.


the history of our own system sho\vs us a stage of
legal thinking in which the rights of an owner out
of possession can be dealt with only by ascribing
to him a sort of fictitious possession. English law
cannot deny that an occupying farmer is possessed
of the farmyard as well as of the pigs, ducks, and
geese therein, but it asserts that the landlord is
seised of the freehold ; and seisin, as even our later
books of authority will tell us, was originally nothing
but possession.^ In the case of feudal tenures,
where a freeholder owes re nt a nd services to an
overlord, the lord is said to be seised of the rent by
actual receipt of any part of it ; and refusal or
failure to pay such rent Avhen duly demanded was a
disseisin, entitling the lord to bring the same form
of_ action — an " assize of novel disseisin " — as a
freeholder who had been physically turned out of
possession." Where there was not and could not be
actual possession, medieval lawyers endeavoured to
find something as like it as possible. Tliey had at
last to face the need of doing without, but the effort
was a severe one. Eights which " lie in grant " as
distinct from " livery," that is, which can be trans-
ferred by written grant only — the grant neither
requiring nor admitting a visible handing over

1 Co. Litt. 17 a. - Ihid. § 233.


or induction — have always been regarded in the
Common Law as comparatively weak and precarious.
Only within living memory has English legislation
authorised the transfer of immovable property in pos-
session without either a real or a fictitious " livery."
We shook off the medieval bond of materialism
\\ as late as 1845, when Parliament had the courage to
n declare that corporeal hereditaments should " lie in
' ' grant as well as in livery," so as to enable the im-
; mediate freehold to be dealt with by simple deed.^
Prescrip- Posscssion, wc havc just seen, may have all or

limitation most of the advantages of ownership against every
one but the true owner, in other words it may
confer a relatively good title. But, moreover, it
may be enabled by lapse of time to become an
absolute title. Possession may ripen into owner-
ship ; and this result may be produced either
positively by the law declaring that the possessor is
fully entitled after a certain time, or negatively by
depriving adverse claimants of their remedies if dur-
ing a certain time they omit to exercise them. The
former operation of lapse of time is properly called
Prescription, sometimes " positive prescription " ; the
j latter, sometimes called " negative prescription," is
' familiar in English law as the limitation of actions,

1 8 & 9 Vict. c. lOG.


aud, as a general principle of remedial justice, is not

confined to claims for the recovery of land or other

property. As regards tlie acquisition of property,

the transformation of possession into ownership (or

at all events an indisputable right to possess) is

obviously most necessary and important in a system

where continuous possession with an apparently

rightful title is the principal or only proof of

ownership. In a system where ownership is

capable of direct proof and ofl&cial confirmation, as

by a registry of titles to land, the importance of

possession and prescription tends to diminish, and

can even become a vanishing quantity.^

Further historical and comparative details would Univer-
sality of
be out of place here. Perhaps we have been too the proi>


much tempted in that direction already. But it
may be worth remarking in general terms that the
relations of possession and ownership in Eoman
and English law, the difficulties arising out of
them, and the devices resorted to for obviating

^ Maine, Early Law and Custom, 352-358 ; Land Transfer Act,
1875, s. 21, and see Sir H. Elphinstone thereon in Law Quart.
Rev. xi. 357, 362; Land Transfer Act, 1897, s. 12: "A title to
registered land adverse to or in derogation of the title of the
registered projirietor shall not be acquired by any length of posses-
sion." Under tiie German Civil Code a legistered owner can be
f displaced by length of adverse possession only in exceptional
circumstances: B.G.B. §§ 902, 927, 1028, Endemann, Lehrb. d.
biirgerlichen Rechts, ii. § 66.



of owner-
ship in

or circumventing those difficulties, offer an amount
of resemblance even in detail which is much more
striking than the superficial and technical differ-
ences. We cannot doubt that these resemblances
depend on the nature of the problems to be solved
and not on any accidental connection. One system
of law may have imitated another in particular
doctrines and institutions, but imitation cannot
find place in processes extending over two or three
centuries, and whose fundamental analogies are
externally disguised in almost every possible way.

How far can the notions of ownership and
possession apply to those partial rights over another
man's belongings (I purposely use a vague and
inartificial word) which are an increment of owner-
ship on the active and a subtraction from it on
the passive side ? Andrew, as owner of Whiteacre,
has a right of way over Peter's estate of Black-
acre. This is what Eoman law calls a sei^;vitu
Whiteacre is the "dominant" and Blackacre the
"servient" tenement. Eiiglisli ];n\' calls it an
easement: in modern times we have borrowed the
terms " dominant " and " servient " from Eoman
or Eomanised authorities, and use them freely.
Peter and his heirs are bound to let Andrew and
his heirs pass and repass by that way. So far


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Online LibraryFrederick PollockA first book of jurisprudence for students of the common law → online text (page 11 of 22)