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OF CHOSES IN POSSESSION.
OF OWNERSHIP WITH AND WITHOUT POSSESSION.
§ 1. Of Ownership in Possession and its Acquisition. CHOSES in possession are tangible moveable things ; Choses in as cattle, clothes, coins, house furniture, carriages, rail- possession. way rolling stock and ships. Such things are the objects of absolute ownership, that is, of a right of exclusive enjoyment, mainly including the right to maintain or recover possession of the things against or from all other persons, and further comprehending the right of free use, alteration or destruction, and the right of free alienation with the corresponding liability to alienation for debt (a). The absolute quality of the Ownership ownership of goods appears when it is compared with
compared the nature of an estate in fee simple, the largest with the fee interest that a subject may enjoy in land. For the land. law regards every estate in fee as created by grant either from the Crown directly or else from some other lord practising subinfeudation in the days when this was lawful. Every estate in fee is therefore derived out of the grantor's estate, and it is properly an interest limited to continue so long as the grantee's heirs shall last: though every tenant in fee has the right to substitute another in his place and so prolong the estate till the failure of heirs of the substituted tenant (6).
(a) Ante, pp. 2, 6–17, 27; Wil. liams, R. P. 2, 3, 17th ed.
() Williams, R. P. 6, 7, 12—
15, 36–38, 46, 48, 62–69, 14C
But the law does not conceive of the ownership of goods as being derived out of any other superior or supreme ownership, or as being limited in duration (c). Again, an estate in fee simple may be divided into any number of smaller estates taking effect successively; there may be limited, after an estate for life or in tail in possession, innumerable like estates in remainder, with an ultimate remainder or reversion in fee simple (d). But the common law does not regard the ownership of personal chattels as capable of division into smaller successive interests; and it knows no such thing as the remainder or reversion of a chattel (e).
Ownership with and without possession.
The law then knows only the simple ownership of goods. Such ownership may, however, be divided into certain constituent parts. Thus the full ownership of goods would appear to include the possession of them (f); for how else can their use and enjoyment be had ? But as
we have seen (g), the owner may lose or voluntarily part with possession of his goods; when he will be left with a mere right of ownership without possession. Ownership without possession may or may not be accompanied with the right to possession. Ownership without possession however involves possession without ownership; and the possession of goods, though without ownership, is protected in law against all but the owner, and even against him, if he has parted with his right of exclusive possession. For one who is merely in possession of goods, even by wrong, is said to have a title to them as against all except the true owner (h). This shows us at once
(c) Williams, R. P. 3, 17th ed.
(d) Williams, R. P. 303, 304, 313-315, 17th ed.
(c) Post, Part III. Ch. I. Successive interests in chattels may however be created in equity, as we shall see.
(5) 2 Black. Comm. 199, 395, 396 ; Ames, Harvard Law Review, iii. 314.
(g) Ante, pp. 10, 16, 21.
(h) Bro. Abr. Trespass, 433 ; Armory v. Delamirie, 1 Str. 505; as to a bailee, see Y. B. 11 Hen.
how large a part of ownership is made up of possession, accompanied with the right to maintain or recover possession; which further appears from the fact that the legal mode of acquiring the ownership of ownerless things (res nullius) is by occupancy, that is, by taking possession of them (i).
Now the acquisition of ownership by any one The acqui
sition of generally presupposes a previous ownership (k); thus
ownership: one usually becomes the owner of goods either by succeeding to the title of a previous owner, or else by succeeding to the title of a previous possessor under circumstances, which deprive the owner of his title. The former case includes every gift, sale, release or bequest from an owner and every succession to his title upon intestacy or upon exercise of any creditor's right against his goods. The latter covers the acquisition of ownership through purchase in market overt, by taking money or negotiable securities in the course of currency, by getting a title valid against a true owner in a foreign country, under the Factors Act, by estoppel, and under the bankruptcy law of reputed ownership (1). The acquisition of ownership by accession or confusion of substances also presupposes a previous title. Thus the young of a domestic animal belong to the owner of the mother (m). If any substances, for instance tallow, belonging to various owners be mixed by consent or accidentally, the mass appears to belong to the owners of its parts in common. And if the confusion be made wilfully by one without the other's leave, the mass belongs to the latter, whose ownership is thus unlawfully invaded (n). There are, however,
IV. 17, pl. 39 ; 21 Hen. VII. 14 b, pl. 23; Kelyng, 39; ante, pp. 10 and n. (c), 21.
(i) Bract. fo. 8 b. ; 2 Black. Comm. 258, 400.
(k) See Ó. W. Holmes, Conimon Law, 245.
(1) Ante, pp. 22 and n. (e), 23,
(m) See Bract. fo. 9, 10 ; Bro.
(n) 2 Black. Comm. 405.
two ways of acquiring the ownership of goods, which are quite irrespective of any previous title. One is under an exercise of sovereign authority; as upon the sale of a ship in proceedings against her in rem in a Court of Admiralty jurisdiction (0), or of goods ordered to be sold pending litigation under the Rules of the Supreme Court, 1883 (p), or directed to be sold without the owner's leave by statute (9). The other is by occupancy, or the original taking possession of ownerless things (r).
Res nullius; Ownerless things, however, are rare in civilized wild animals. countries. Indeed they appear to be limited to wild
animals, which are not the object of property until they are killed or caught (8). And in this country the ownership even of wild animals is not generally to be acquired by simple occupancy. For the right of sporting on any land is a valuable right, which may be enjoyed either by virtue of a franchise (t) originally granted by the Crown, or as incident to the ownership of land (u). So that the question, to whom do wild animals killed on any land belong, cannot be decided without considering, who had the right to kill and take them, and other circumstances, which will be explained hereafter (v). But an instance of the acquisition of ownership by mere occupancy occurs in catching fish in the sea (x).
(0) Castrique v. Imrie, L. R., 4 H. L. 414, 428, 429, 442.
(p) Order L. rule 2, whereby
(q) See ante, p. 25, n. (9).
(1) As a forest, chase, park or free warren ; see Williamson Commons, 228 et seq.
(u) 11 Rep. 87 b; see 2 Black. Comm. 417; Williams on Comnions, 240.
(v) Post, Ch. IV.
() See Fennings v. Lord Gren. ville, 1 Taunt. 241 ; Hogarth v. Jackson, Moo. & Malk. 58. But royal fish, which are whale and sturgeon, thrown ashore or caught near the coasts are the property of the Crown by prerogative ; 1 Black, Comm. 216, 280. As to
We have described occupancy as the original taking Original possession of ownerless things. There may, however, be
possession. an original taking possession of things which are not ownerless, as upon the finding of lost goods, or the wrongful taking of goods. These cases are closely allied to that of occupancy, of which they seem to reproduce the characteristics, modified, however, by the fact, that some one exists, who has a better title to the goods than the finder or taker. Thus the original occupant of a thing is entitled to maintain or recover possession of it against all the world; no one has a better right to it than he; and he is responsible to no one for its safety; he is therefore its owner. The finder or wrongful taker of another's goods, has the right to maintain or recover possession of them as against all the world, except the owner (y). Should he be dispossessed by any stranger, he will be entitled to use any of the owner's remedies () for the recovery of the goods or their value (a). And the stranger will not be enabled to set up the owner's right (ius tertii) as a occupancy per specificationem, see of the sea come to land ; jetsam, ante, p. 24, n. (k).
goods cast into the sea, which (y) As to the finder's position sink and remain under water; with regard to the owner, and the flotsan, like goods, which float; cases in which he may be guilty and ligan, goods sunk in the sea, of larceny in appropriating the but tied to a cork or buoy. The thing found to his own use, see right to have any of these things Bac. Abr. Trover (B.); Pollock may be and frequently is vested and Wright on Possession, 171– in a subject, as a franchise, by 187. Here it should be men- grant or prescription. See Co. tioned that certain things, of Litt. 114 h ; Sir Henry Constable's which possession has been lost or case, 5 Rep. 106 ; 1 Black. Comm. abandoned, belong to the Crown, 291-299 ; Williams on Comby prerogative, if the owner do mons, 271, 280—292 ; A.-G. v. not appear to claim them. These Moore, 1893, 1 Ch. 676. are treasure trove, which is any (2) Ante, pp. 12–21. money or coin, gold, silver, plate (a) See as to a finder, Armory or bullion found hidden in the v. Delamirie, 1 Str. 505 ; 0. W. earth or other private place ; Holmes, Common Law, 237 ; as zonifs, which are stolen goods to a taker, Y. B. 13 Hen. VII. waived or thrown away by the 10, pl. II.: Bro. Abr. Tresp. 433 ; thief in his flight, for fear of appre- Y. B. 12 Hen. VIII. 10 b.; Bashension ; estrays, which are valy- set v. Maynard, Cro. Eliz. 819; able animals fonnd wandering in Woadson v. Nawton, 2 Str. 777 ; any manor or lordship, their Rackham v. Jesup, 3 Wils. 332. owner being unknown; wreck