§ 104 Possession Not Essentially the Physical Power of Exclusion
According to a widely accepted theory the essence of corporeal possession is to be found in the physical power of exclusion. The corpus possessionis, it is said, is of two kinds, according as it relates to the commencement or to the continuance of possession. The corpus required at the commencement is the present or actual physical power of using the thing oneself and of excluding all other persons from the use of it. The corpus required for the retention of a possession once acquired may, on the other hand, consist merely in the ability to reproduce this power at will. Thus I acquire possession of a horse if I take him by the bridle, or ride upon him, or otherwise have him in my immediate personal presence, so that I can prevent all other persons from interfering with him. But no such immediate physical relation is necessary to retain the possession so acquired. I can put the horse in my stable, or let him run in a field. So long as I can go to him when I wish, and reproduce at will the original relation of physical power, my possession has not ceased. To this view of the matter, however, the following objections may be made.248
1. Even at the commencement a possessor need have no physical power of excluding other persons. What physical power of preventing trespass does a man acquire by making an entry upon an estate which may be some square miles in extent? Is it not clear that he may have full possession of land that is absolutely unfenced and unprotected, lying open to every trespasser? There is nothing to prevent even a child from acquiring effective possession as against strong men, nor is possession impossible on the part of him who lies in his bed at the point of death. If I stretch a net in the sea, do I not acquire the possession of the fish caught in it, so soon as they are caught? Yet every other fisherman that passes by has more power of excluding me than I have of excluding him. So if I set traps in the forest, I possess the animals which I catch in them, though there is neither physical presence nor physical power. If in my absence a vendor deposits a load of stone or timber on my land, do I not forthwith acquire possession of it? Yet I have no more physical power over it than any one else has. I may be a hundred miles from my farm, without having left any one in charge of it; but I acquire possession of the increase of my sheep and cattle.
In all such cases the assumption of physical power to exclude alien interference is no better than a fiction. The true test is not the physical power of preventing interference, but the improbability of any interference, from whatever source this improbability arises. Possession is the security of enjoyment, and there are other means of attaining this security than personal presence or power. It is true that in time of war the possession of a place must be obtained and defended by cannon and bayonets; but in the peaceful intercourse of fellow-citizens under the rule of law, possession can be acquired and retained on much easier terms and in much simpler fashion. The chances of hostile interference are determined by other considerations than that of the amount of physical force at the disposal of the claimant. We have to take account of the customs and opinions of the community, the spirit of legality and of respect for rightful claims, and the habit of acquiescence in established facts. We have to consider the nature of the uses of which the thing admits, the nature of the precautions which are possibly or usually taken in respect of it, the opinion of the community as to the rightfulness of the claim seeking to realise itself, the extent of lawless violence that is common in the society, the opportunities for interference and the temptations to it, and lastly but not exclusively the physical power of the possessor to defend himself against aggression. If, having regard to these circumstances and to such as these, it appears that the animus possidendi has so prospered as to have acquired a reasonable security for its due fulfilment, there is true possession, and if not, not.
2. In the second place it is by no means clear how it is possible for possession at its commencement and possession in its continuance to be made up of different elements. How can it be that possession at its inception involves actual physical power of exclusion, while in its continuance it involves merely the power of reproducing this primary relationship? Possession is a continuing de facto relation between a person and a thing. Surely, therefore, it must from beginning to end have the same essential nature. What is that nature? Savigny’s theory affords no answer. It tells us, at the most, how possession begins, and how it ceases; but we wish to know what it essentially and continuously is.
3. Thirdly and lastly, the theory which we are considering is inapplicable to the possession of incorporeal things. Even if it successfully explained the possession of land, it would afford no explanation of the possession of a right of way or other servitude. Here there is neither exclusion nor the power of exclusion. It is, on the contrary, the possessor of the servient land who has the physical power of excluding the possessor of the servitude. If I possess an easement of light, what power have I to prevent its infringement by the building operations of my neighbour? It is true that this is not a conclusive objection to Savigny’s analysis; for it remains perfectly open to him to rejoin that possession in its proper sense is limited to the possession of corporeal things, and that its extension to incorporeal things is merely analogical and metaphorical. The fact remains, however, that this extension has taken place; and, other things being equal, a definition of possession which succeeds in including both its forms is preferable to one which is forced to reject one of them as improper.