§ 87 Corporeal and Incorporeal Ownership
Although the true subject-matter of ownership is in all cases a right, a very common form of speech enables us to speak of the ownership of material things. We speak of owning, acquiring, or transferring, not rights in land or chattels, but the land or chattels themselves. That is to say, we identify by way of metonymy the right with the material thing which is its object. This figure of speech is no less convenient than familiar. The concrete reference to the material object relieves us from the strain of abstract thought. Rights are dim abstractions, while material things are visible realities; and it is easier to think and speak of the latter than of the former, even though the substitution is a mere figure of speech. This device, moreover, is an aid to brevity, no less than to ease of comprehension.
This figurative identification of a right with its object is, however, not always permissible. I may be said to own the money in my hand; but as to that which is due to me, I own not the money, but a right to it. In the one case I own the material coins; in the other the immaterial debt or chose in action. So I own my land, but merely a right of way over the land of my neighbour. If we look, therefore, no deeper than the mere usages of speech, it would seem as if the subject-matter of ownership were sometimes a material object and at other times a right. This, of course, would be a logical absurdity. Ownership may conceivably be in all cases a relation to a material object; or it may in all cases be a relation to a right; but it cannot be sometimes the one and sometimes the other. So long as we remember that the ownership of a material thing is nothing more than a figurative substitute for the ownership of a particular kind of right in that thing, the usage is one of great convenience; but so soon as we attempt to treat it as anything more than a figure of speech, it becomes a fertile source of confusion of thought.
In what cases, then, do we use this figure of speech? What is it that determines whether we do or do not identify a right with its object? How is the line drawn between corporeal and incorporeal ownership? The usage is to some extent arbitrary and uncertain. The application of figurative language is a matter not of logic but of variable practice and opinion. Speaking generally, however, we may say that the ownership of a material thing means the ownership of a jus in re propria in respect of that thing. No man is said to own a piece of land or a chattel, if his right over it is merely an encumbrance of some more general right vested in some one else. The ownership of a jus in re aliena is always incorporeal, even though the object of that right is a corporeal thing. I am not said to own a chattel, merely because I own a right to have it transferred to me, or because I own a lien over it or a right to the temporary use of it.
When, on the other hand, a right is not a mere encumbrance of another right—when it is a self-existent jus in re propria—it is identified with the material thing which is its subject-matter. It is not difficult to perceive the origin and reason of this usage of speech. In its full and normal compass a jus in re propria over a material object is a right to the entirety of the lawful uses of that object. It is a general right of use and disposal, all jura in re aliena being merely special and limited rights derogating from it in special respects. It is only this absolute and comprehensive right—this universum jus—that is identified with its object. For it is in some sense coincident with its object, and exhausts the juridical significance of it. It is the greatest right which can exist in respect of the thing, including all lesser rights within itself, and he who owns it may therefore conveniently be said to own the thing itself.
We have said that in its full and normal compass corporeal ownership is the ownership of a right to the entirety of the lawful uses of a corporeal thing. This compass, however, may be limited to any extent by the adverse influences of jura in re aliena vested in other persons. The right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees, and other encumbrancers. His ownership may be reduced to a mere name rather than a reality. Yet he none the less remains the owner of the thing, while all others own nothing more than rights over it. For he still owns that jus in re propria which, were all encumbrances removed from it, would straightway expand to its normal dimensions as the universum jus of general and permanent use. He then, is the owner of a material object, who owns a right to the general or residuary uses of it,203 after the deduction of all special and limited rights of use vested by way of encumbrance in other persons.204
What, then, is the name of the right which we thus identify, for convenience of speech, with its material object? What shall we call the right which enables the owner of it to say that he owns a piece of land or a chattel? Unfortunately for the lucidity of legal nomenclature, there is, unless we are prepared to use the somewhat awkward Latin term jus in re propria, no other name for it than ownership itself. This is a use of the term which is quite different from that hitherto considered by us. Ownership, as a particular kind of right, must be clearly distinguished from ownership, as a particular kind of relation to rights of all descriptions. We cannot class together the right of ownership and the ownership of a right. This use of the term to denote a right is the natural outcome of the figurative use of it already considered. When we not only speak of the ownership of land, but interpret such language literally, it is clear that ownership must be taken as the name of the right which the owner has in the land.205