§ 106 Relation Between Possession and Ownership
“Possession,” says Ihering,251 “is the objective realisation of ownership.” It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. A thing is owned by me when my claim to it is maintained by the will of the state as expressed in the law; it is possessed by me, when my claim to it is maintained by my own self-assertive will. Ownership is the guarantee of the law; possession is the guarantee of the facts. It is well to have both forms of security if possible; and indeed they normally coexist. But where there is no law, or where the law is against a man, he must content himself with the precarious security of the facts. Even when the law is in one’s favour, it is well to have the facts on one’s side also. Beati possidentes. Possession, therefore, is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. The separation of these two things is an exceptional incident, due to accident, wrong, or the special nature of the claims in question. Possession without ownership is the body of fact, uninformed by the spirit of right which usually accompanies it. Ownership without possession is right, unaccompanied by that environment of fact in which it normally realises itself. The two things tend mutually to coincide. Ownership strives to realise itself in possession, and possession endeavours to justify itself as ownership. The law of prescription determines the process by which, through the influence of time, possession without title ripens into ownership, and ownership without possession withers away and dies.252
Speaking generally, ownership and possession have the same subject-matter. Whatever may be owned may be possessed, and whatever may be possessed may be owned. This statement, however, is subject to important qualifications. There are claims which may be realised and exercised in fact without receiving any recognition or protection from the law, there being no right vested either in the claimant or in any one else. In such cases there is possession without ownership. For example, men might possess copyrights, trade-marks, and other forms of monopoly, even though the law refused to defend those interests as legal rights. Claims to them might be realised de facto, and attain some measure of security and value from the facts, without any possibility of support from the law.
Conversely there are many rights which can be owned, but which are not capable of being possessed. They are those which may be termed transitory. Rights which do not admit of continuing exercise do not admit of possession either. They cannot be exercised without being thereby wholly fulfilled and destroyed; therefore they cannot be possessed. A creditor, for example, does not possess the debt that is due to him; for this is a transitory right which in its very nature cannot survive its exercise. But a man may possess an easement over land, because its exercise and its continued existence are consistent with each other. It is for this reason that obligations generally (that is to say, rights in personam as opposed to rights in rem) do not admit of possession. It is to be remembered, however, that repeated exercise is equivalent in this respect to continuing exercise. I may possess a right of way through repeated acts of use, just as I may possess a right of light or support through continuous enjoyment. Therefore even obligations admit of possession, provided that they are of such a nature as to involve a series of repeated acts of performance. We may say that a landlord is in possession of his rents, an annuitant of his annuity, a bondholder of his interest, or a master of the services of his servant.253
We may note finally that, although incorporeal possession is possible in fact of all continuing rights, it by no means follows that the recognition of such possession, or the attribution of legal consequences to it, is necessary or profitable in law. To what extent incorporeal possession exists in law, and what consequences flow from it, are questions which are not here relevant, but touch merely the details of the legal system.