POSSESSION 561 In Roman law a broad distinction was drawn between possession and ownership (dominium). 1 They were pro tected by different remedies, possession by interdict, ownership by action. This difference can only be explained by history. Here again, unfortunately, authorities differ. According to Savigny, a Roman citizen who had become a tenant of part of the ager pullicus 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, summary processes of Roman law which were either expressly devised by the praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right" (Maine, Ancient Law, ch. viii.). Savigny regards the protection of possession as an exten sion of the protection of the person. The same view was taken by the English Court of Exchequer in Rogers v. Spence, 13 Meeson and Welsby s Reports, 581. According to Professor Hunter (Roman Laiv, pp. 206, 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 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 time (usucapio, longi temporis posseasio) and protection of possession from dis turbance (interdiction). Others have included further rights, inter alia, the right to use force in defence of pos session, and the right to have the burden of proof, in a contest as to the title, thrown upon the adversary: "In pari causa possessor potior haberi debet." The position of the possessor in Roman law was a very strong one. If a bona fide possessor, he could bring an action for furtum even against the owner ; if a 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. 2 It has been already stated that there is both a physical and a mental element in the conception of possession. This does not necessarily mean that 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 control may be potential as well as actual. An estate may be possessed without the possessor going upon the land at all, and the possession of goods may be given by delivering the key of the warehouse in which they are stored. In international law the possession of part as giving the right to the whole has been of great importance. The possession of the coast of a newly-discovered country gives a right to the inland territory within certain limits (see Twiss, International Laiv, vol. i. p. 170). Where goods are pledged or bailed for a specific purpose the intention of the pledger 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 posses sion has passed. In Roman law the pledger had possessio ad usucapionem, the pledgee possessio ad interdicts The possession of the pledgee or bailee has been called " deriva tive possession." Possession may be exercised through another ("animo nostro, corpore alieno "), as through a
- The distinction is very important, as it affects the contract of sale.
The contract was not to transfer ownership, as in English law, but only vacua possessio. This does not agree with English law, where in certain cases a thief can give a good title to stolen goods, though he has no title himself. servant, who has not true possession. 3 Possession so exer cised 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 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 representative 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 plaintiff based his claim or the defendant his right upon possession rather than property. The English possessory action may have been directly suggested by the interdict. Bracton (103b) identifies the assise of novel disseisin, the most common form of possessory action, with the interdict unde vi. In England ejectment had practically superseded other real actions before the latter were (with the exception of dower, writ of dower, and quare impedif) expressly abolished by 3 and 4 Will. IV. c. 27, s. 36. The action for the recovery of land, introduced by the Judicature Acts, is the modern representative of the action of ejectment. 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, 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 his tenant, and (where such an allegation is necessary) that he had no notice to quit. The chief 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 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 jus aquse ducendx) be ex justo titulo, or under colour of right (see PRESCRIPTION). There is one case of constructive possession which is peculiar to English law, that is, where possession is said to be given by a deed operating under the Statute of Uses (see " Orme s Case," Law Reports, 8 Common Pleas, 281). In English law the doctrine of possession becomes practically important in the following cases. (1) Possession serves as a con venient means of division of estates (see REAL ESTATE). One of the divisions of estates is into estates in possession and estates in reversion or remainder. It also serves as a division of PERSONA , ESTATE (q.v.). A chose in action is said to be reduced into pos session 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 evidence of seisin. 4 In the case of personal property the mere pos session of a finder is sufficient to enable him to maintain an action of trover against one who deprives him of the chattel 5 (see the leading case of Armory v. Delamirie, 1 Strange s Reports, 504). (3) What is called "unity of possession" is one of the means whereby an 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 3 Much of the law of master and servant is based upon the Roman law of master and slave. The servant, like the slave, has not posses sion 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. 4 "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 (Noy, Maxims, p. 2). It seems doubtful, however, how far in English law a tenant for years has true possession, for he is in law only a bailiff or servant of the landlord. But he certainly has possessory remedies, like the quasi-possessor in Roman law. 5 Compare the Code Napoleon, art. 2279 : "En fait de meubles la possession vaut titre. "
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