§ 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. Hawkesworth226 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. Moore227 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. Green228 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. Green229 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. Mucklow230 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. Sharman232 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.