must now be further considered. The nearest synonym for any ordinary case seems to be (legal) "ability,"[1]—the latter being obviously the opposite of "inability," or "disability." The term "right," so frequently and loosely used in the present connection, is an unfortunate term for the purpose,—a not unusual result being confusion of thought as well as ambiguity of expression.[2] The term "capacity" is equally unfortunate; for, as we have already seen, when used with discrimination, this word denotes a particular group of operative facts, and not a legal relation of any kind.
Many examples of legal powers may readily be given. Thus, X, the owner of ordinary personal property "in a tangible object" has the power to extinguish his own legal interest (rights, powers, immunities, etc.) through that totality of operative facts known as abandonment; and—simultaneously and correlatively—to create in other persons privileges and powers relating to the abandoned object,—e, g., the power to acquire title to the later by appropriating it.[3] Similarly, X has the power to transfer his interest to Y,—that is, to extinguish his own interest and concomitantly create in Y a new and corresponding interest.[4] So
- ↑ Compare Remington v. Parkins (1873), 10 R. I., 550, 553, per Durfee, J.: "A power is an ability to do."
- ↑ See People v. Dikeman (1852), 7 Howard Pr., 124, 130; and Lonas v. State (1871), 3 Heisk. (Tenn.), 287, 306–307, quoted ante, p.See also Mabre v. Whittaker (1906), 10 Wash., 656, 663 (Washington Laws of 1871 provided in relation to community property: "The husband shall have the management of all the common property, but shall not have the right to sell or encumber real estate except he shall be joined in the sale or encumbrance by the wife. * * *" Per Scott, J.: "'Right' in the sense used there means power").Compare also St. Joseph Fire & Marine Ins. Co. v. Hanck (1876), 63 Mo., 112. 118.Numberless additional instances might be given of the use of the term "right," where the legal quantity involved is really a power rather than a right in the sense of claim.
- ↑ It is to be noted that abandonment would leave X himself with precisely the same sort of privileges and powers as any other person.
- ↑ Compare Wynehanter v. People (1856), 13 N. Y., 378, 396 (Coinstock, J.: "I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society * * * among which are, fundamentally the right of the occupant or owner to use and enjoy (the objects) exclusively, and his absolute power to sell and dispose of them"); Bartemeyer v. Iowa (1873), 18 Wall., 129, 137 (Field, J.: "The right of property in an article involves the power
