§ 105 Incorporeal Possession
Hitherto we have limited our attention to the case of corporeal possession. We have now to consider incorporeal, and to seek the generic conception which includes both these forms. For I may possess not the land itself, but a way over it, or the access of light from it, or the support afforded by it to my land which adjoins it. So also I may possess powers, privileges, immunities, liberties, offices, dignities, services, monopolies. All these things may be possessed as well as owned. They may be possessed by one man, and owned by another. They may be owned and not possessed, or possessed and not owned.
Corporeal possession is, as we have seen, the continuing exercise of a claim to the exclusive use of a material object. Incorporeal possession is the continuing exercise of a claim to anything else. The thing so claimed may be either the non-exclusive use of a material object (for example, a way or other servitude over a piece of land) or some interest or advantage unconnected with the use of material objects (for example a trade-mark, a patent, or an office of profit).
In each kind of possession there are the same two elements required, namely the animus and the corpus. The animus is the claim—the self-assertive will of the possessor. The corpus is the environment of fact in which this claim has realised, embodied, and fulfilled itself. Possession, whether corporeal or incorporeal, exists only when the animus possidendi has succeeded in establishing a continuing practice in conformity to itself. Nor can any practice be said to be continuing, unless some measure of future existence is guaranteed to it by the facts of the case. The possession of a thing is the de facto condition of its continuous and secure enjoyment.
In the case of corporeal possession the corpus possessionis consists, as we have seen, in nothing more than the continuing exclusion of alien interference, coupled with ability to use the thing oneself at will. Actual use of it is not essential. I may lock my watch in a safe, instead of keeping it in my pocket; and though I do not look at it for twenty years, I remain in possession of it none the less. For I have continuously exercised my claim to it, by continuously excluding other persons from interference with it. In the case of incorporeal possession, on the contrary, since there is no such claim of exclusion, actual continuous use and enjoyment is essential, as being the only possible mode of exercise. I can acquire and retain possession of a right of way only through actual and repeated use of it. In the case of incorporeal things continuing non-use is inconsistent with possession, though in the case of corporeal things it is consistent with it.
Incorporeal possession is commonly called the possession of a right, and corporeal possession is distinguished from it as the possession of a thing. The Roman lawyers distinguish between possessio juris and possessio corporis, and the Germans between Rechtsbesitz and Sachenbesitz. Adopting this nomenclature, we may define incorporeal possession as the continuing exercise of a right, rather than as the continuing exercise of a claim. The usage is one of great convenience, but it must not be misunderstood. To exercise a right means to exercise a claim as if it were a right. There may be no right in reality; and where there is a right, it may be vested in some other person, and not in the possessor. If I possess a way over another’s land, it may or may not be a right of way; and even if it is a right of way, it may be owned by some one else, though possessed by me. Similarly a trade-mark or a patent which is possessed and exercised by me may or may not be legally valid; it may exist de facto and not also de jure; and even if legally valid, it may be legally vested not in me, but in another.249
The distinction between corporeal and incorporeal possession is clearly analogous to that between corporeal and incorporeal ownership. Corporeal possession, like corporeal ownership, is that of a thing; while incorporeal possession, like incorporeal ownership, is that of a right. Now in the case of ownership we have already seen that this distinction between things and rights is merely the outcome of a figure of speech, by which a certain kind of right is identified with the material thing which is its object. A similar explanation is applicable in the case of possession. The possession of a piece of land means in truth the possession of the exclusive use of it, just as the possession of a right of way over land means the possession of a certain non-exclusive use of it. By metonymy the exclusive use of the thing is identified with the thing itself, though the non-exclusive use of it is not. Thus we obtain a distinction between the possession of things and the possession of rights, similar to that between the ownership of things and the ownership of rights.250
In essence, therefore, the two forms of possession are identical, just as the two forms of ownership are. Possession in its full compass and generic application means the continuing exercise of any claim or right.