Chapter XII — Ownership
§ 86 The Definition of Ownership
Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns is in all cases a right. When, as is often the case, we speak of the ownership of a material object, this is merely a convenient figure of speech. To own a piece of land means in truth to own a particular kind of right in the land, namely, the fee simple of it.
Ownership, in this generic sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena. I may own a debt, or a mortgage, or a share in a company, or money in the public funds, or a copyright, or a lease, or a right of way, or the fee simple of land. Every right is owned; and nothing can be owned except a right. Every man is the owner of the rights which are his.
Ownership, in its generic sense, as the relation in which a person stands to any right vested in him, is opposed to two other possible relations between a person and a right. It is opposed in the first place to possession. This very difficult juridical conception will be considered by us in the succeeding chapter. We shall see that the possession of a right (possessio juris, Rechtsbesitz) is the de facto relation of continuing exercise and enjoyment, as opposed to the de jure relation of ownership. A man may possess a right without owning it, as where the wrongful occupant of land makes use of a right of way or other casement appurtenant to it. Or he may own a right without possessing it. Or finally ownership and possession may be united, as indeed they usually are, the de jure and the de facto relations being coexistent and coincident.
The ownership of a right is, in the second place, opposed to the encumbrance of it. The owner of the right is he in whom the right itself is vested; while the encumbrancer of it is he in whom is vested, not the right itself, but some adverse, dominant, and limiting right in respect of it. A. may be the owner of property, B. the lessee of it, C. the sub-lessee, D. the first mortgagee, E. the second mortgagee, and so on indefinitely. Legal nomenclature, however, does not supply separate names for every distinct kind of encumbrancer. There is no distinctive title, for example, by which we may distinguish from the owner of the property him who has an easement over it or the benefit of a covenant which runs with it.
Although encumbrance is thus opposed to ownership, every encumbrancer is nevertheless himself the owner of the encumbrance. The mortgagee of the land is the owner of the mortgage. The lessee of the land is the owner of the lease. The mortgagee of the mortgage is the owner of the sub-mortgage. That is to say, he in whom an encumbrance is vested stands in a definite relation not merely to it, but also to the right encumbered by it. Considered in relation to the latter, he is an encumbrancer; but considered in relation to the former, he is himself an owner.
Ownership is of various kinds, and the following distinctions are of sufficient importance and interest to deserve special examination:
1. Corporeal and Incorporeal Ownership.
2. Sole Ownership and Co-ownership.
3. Trust-Ownership and Beneficial Ownership.
4. Legal and Equitable Ownership.
5. Vested and Contingent Ownership.