Vii.—: Extended Protection of Possession.

Rights of de facto possessor against strangers. An important extension of legal protection and remedies has yet to be noticed. Trespass and other violations of possessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Sometimes mere detention may be sufficient: but on principle it seems more correct to say that physical control or occupation is prima facie evidence that the owner is in exercise (on his own behalf or on that of another) of an actual legal possession, and then, if the contrary does not appear, the incidents of legal possession follow. The practical result is that an outstanding claim of a third party (jus tertii, as it is called) cannot be set up to excuse either trespass or conversion: “against a wrong-doer, possession is a title”: “any possession is a legal possession against a wrong-doer”: or, as the Roman maxim runs, “adversus extraneos vitiosa possessio prodesse solet”. As regards real property, a possession commencing by trespass can be defended against a stranger not only by the first wrongful occupier, but by those claiming through him; in fact it is a good root of title as against every one except the person really entitled; and ultimately, by the operation of the Statutes of Limitation, it may become so as against him also.

The authorities do not clearly decide, but seem to imply, that it would make no difference if the de facto possession violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess.

This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes whether we deem the reason of the law to be that the existing possession is prima facie evidence of ownership or of the right to possess—“the presumption of law is that the person who has possession has the property”:—or, that for the sake of public peace and security, and as “an extension of that protection which the law throws around the person”, the existing possession is protected, without regard to its origin, against all men who cannot make out a better right:—or say that the law protects possession for the sake of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or why it came to be what it is.

Rights of owner entitled to resume possession. Again, as de facto possession is thus protected, so de jure possession—if by that term we may designate an immediate right to possess when separated from actual legal possession—was even under the old system of pleading invested with the benefit of strictly possessory remedies; that is, an owner who had parted with possession, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will, or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest. In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. “He who has the property may have a writ of trespass, and he who has the custody another writ of trespass”. “If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land”. And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. “If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to plow the land, and he killeth my cattle, I may well have an action of trespass against him notwithstanding the lending”.

An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession.

Rights of derivative possessors. Derivative possession is equally protected, through whatever number of removes it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner: nay more, he may re-deliver possession to the bailor for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee. Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be.

Possession derived through trespasser. Troublesome questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession. The best proof that such is the law is the existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger; though the bailee’s mere assent will not prevent a wrongful taking by the stranger from being a trespass.

The old law of real property was even more favourable to persons claiming through a disseisor; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner, and in the case of goods must submit to recapture if the owner can and will retake them. In the theoretically possible case of a series of changes of possession by independent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of “entry by relation” and the practice as to recovery of mesne profits. But this too is now, as regards civil liability, a matter of mere curiosity.