POSSESSION

possession. 1. The fact of having or holding property in one’s power; the exercise of dominion over property. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.] 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object. 3.Civil law. The detention or use of a physical thing with the intent to hold it as one’s own. La. Civ. Code art. 3421(1). 4. (usu. pl.) Something that a person owns or controls; PROPERTY(2). Cf. OWNERSHIP; TITLE(1).5. A territorial dominion of a state or nation.

“[A]s the name of Possession is … one of the most important in our books, so it is one of the most ambiguous. Its legal senses (for they are several) overlap the popular sense, and even the popular sense includes the assumption of matters of fact which are not always easy to verify. In common speech a man is said to possess or to be in possession of anything of which he has the apparent control, or from the use of which he has the apparent power of excluding others…. [A]ny of the usual outward marks of ownership may suffice, in the absence of manifest power in some one else, to denote as having possession the person to whom they attach. Law takes this popular conception as a provisional groundwork, and builds up on it the notion of possession in a technical sense, as a definite legal relation to something capable of having an owner, which relation is distinct and separable both from real and from apparent ownership, though often concurrent with one or both of them.” Frederick Pollock & Robert Samuel Wright, An Essay on Possession in the Common Law 1–2 (1888).

“In the whole range of legal theory there is no conception more difficult than that of possession. The Roman lawyers brought their usual acumen to the analysis of it, and since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the ingenuity of jurists. Nor is the question one of mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition and loss of possession are many and serious. Possession, for example, is evidence of ownership; the possessor of a thing is presumed to be the owner of it, and may put all other claimants to proof of their title.” John Salmond, Jurisprudence 285 (Glanville L. Williams ed., 10th ed. 1947).

actual possession. Physical occupancy or control over property. Cf. constructive possession. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.]

adverse possession.See ADVERSE POSSESSION.

bona fide possession. Possession of property by a person who in good faith does not know that the property’s ownership is disputed. [Cases: Vendor and Purchaser 220. C.J.S. Vendor and Purchaser §§ 482–485, 517.]

civil possession. 1.Civil law. Possession existing by virtue of a person’s intent to own property even though the person no longer occupies or has physical control of it. 2.Louisiana law. The continuation of possession through the possessor’s presumed intent to continue holding the thing as his or her own, after the possessor ceases to possess the thing corporeally. La. Civ. Code arts. 3431–3432. • Civil possession may be evidenced by such things as paying taxes on the property and granting rights of interest in it. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.]

constructive possession. 1. Control or dominion over a property without actual possession or custody of it. — Also termed effective possession. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.] 2.Civil law. Possession by operation of law of an entirety by virtue of corporeal possession of a part. • When a possessor holds title to a property and physically possesses part of it, the law will deem the possessor to hold constructive possession of the rest of the property described in the title. La. Civ. Code art. 3426. — Also termed possessio fictitia. Cf. actual possession.

corporeal possession.Possession of a material object, such as a farm or a coin. — Also termed natural possession; possessio corporis; (Ger.) Sachenbesitz. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.]

criminal possession. The unlawful possession of certain prohibited articles, such as illegal drugs or drug paraphernalia, firearms, or stolen property.

derivative possession. Lawful possession by one (such as a tenant) who does not hold title. direct possession.See immediate possession.

double possession. The doctrine that, in a bailment, both the bailor and the bailee have possession of the item that has been bailed. • This doctrine does not apply in most Anglo-American jurisdictions.

“It has been suggested that the essence of bailment is that the bailee secures possession and therefore that the bailor loses possession. This elementary proposition is sometimes obscured by the fact that some dicta treat the possession of the bailee as the possession of the bailor. The theoretical justification for this is the doctrine of ‘double possession’ — a principal may have possession through the possession of an agent. This view is in accord with some foreign systems, but it does not suit the basic principles of English law which treats possession as exclusive.” G.W. Paton, Bailment in the Common Law 6 (1952).

effective possession. See constructive possession.

exclusive possession. The exercise of exclusive dominion over property, including the use and benefit of the property.

hostile possession. Possession asserted against the claims of all others, esp. the record owner. See ADVERSE POSSESSION. [Cases: Adverse Possession 58–85. C.J.S. Adverse Possession §§ 59–143, 145–148, 206–209, 263–264, 266–267, 269–274, 276–280, 282–288, 290, 292–293, 295–296, 298, 329–330, 333–338.]

immediate possession. Possession that is acquired or retained directly or personally. — Also termed direct possession.

immemorial possession. Possession that began so long ago that no one still living witnessed its beginning.

incorporeal possession. Possession of something other than a material object, such as an easement over a neighbor’s land, or the access of light to the windows of a house. — Also termed possessio juris; quasi-possession.

“It is a question much debated whether incorporeal possession is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of possessio, while at other times they are careful to qualify incorporeal possession as quasi possessio — something which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal ownership.” John Salmond, Jurisprudence 288–89 (Glanville L. Williams ed., 10th ed. 1947).

indirect possession. See mediate possession.

insular possession. An island territory of the United States, such as Puerto Rico. [Cases: Territories 7. C.J.S. Territories §§ 2, 5, 7, 9–10.] joint possession.Possession shared by two or more persons.

mediate possession (mee-dee-it). Possession of a thing through someone else, such as an agent. • In every instance of mediate possession, there is a direct possessor (such as an agent) as well as a mediate possessor (the principal). — Also termed indirect possession.

“If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me, when my possession becomes immediate.” John Salmond, Jurisprudence 300 (Glanville L. Williams ed., 10th ed. 1947).

naked possession.The mere possession of something, esp. real estate, without any apparent right or colorable title to it. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.]

natural possession.Civil law. The exercise of physical detention or control over a thing, as by occupying a building or cultivating farmland. • Natural possession may be had without title, and may give rise to a claim of unlawful possession or a claim of ownership by acquisitive prescription. The term “natural possession” has been replaced by the term “corporeal possession” in the Louisiana Civil Code, by virtue of a 1982 revision. La. Civ. Code Ann. art. 3425. See corporeal possession; PRESCRIPTION(2). Cf. possessio naturalis under POSSESSIO. [Cases: Property 10. C.J.S. Property §§ 27–31, 33.]

notorious possession.Possession or control that is evident to others; possession of property that, because it is generally known by people in the area where the property is located, gives rise to a presumption that the actual owner has notice of it. • Notorious possession is one element of adverse possession. — Also termed open possession; open and notorious possession. See ADVERSE POSSESSION. [Cases: Adverse Possession 28–33. C.J.S. Adverse Possession §§ 48–53, 263–264, 266–269, 274, 276, 278–281, 293–294.]

open and notorious possession. See notorious possession.

open possession. See notorious possession.

peaceable possession. Possession (as of real property) not disturbed by another’s hostile or legal attempts to recover possession; esp., wrongful possession that the rightful possessor has appeared to tolerate. Cf. scrambling possession (1). Cf. ADVERSE POSSESSION.

pedal possession. Actual possession, as by living on the land or by improving it. • This term usu. appears in adverse-possession contexts.

possession animo domini. Civil law. Possession with the intent to own a thing, movable or immovable; possession as an owner. See La. Civ. Code art. 3427.

possession by relation of law. A person’s legally recognized possession of land despite the person’s not having actual possession after being improperly or unlawfully dispossessed by another.

possession in fact. Actual possession that may or may not be recognized by law. • For example, an employee’s possession of an employer’s property is for some purposes not legally considered possession, the term detention or custody being used instead. — Also termed possessio naturalis.

possession in law. 1. Possession that is recognized by the law either because it is a specific type of possession in fact or because the law for some special reason attributes the advantages and results of possession to someone who does not in fact possess. 2. See constructive possession. — Also termed possessio civilis.

“There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced.” John Salmond, Jurisprudence 287 (Glanville L. Williams ed., 10th ed. 1947).

possession of a right.The continuing exercise and enjoyment of a right. • This type of possession is often unrelated to an ownership interest in property. For example, a criminal defendant possesses the right to demand a trial by jury. — Also termed possessio juris; (Ger.) Rechtsbesitz.

precarious possession.Civil law. Detention of property by someone other than the owner or possessor on behalf of or with permission of the owner or possessor. • A lessee has precarious possession of the leased property.

“[Article 3437 of the Louisiana Civil Code defines precarious possession as] ‘exercise of possession over a thing with the permission of or on behalf of the owner or possessor.’ The definition indicates the difference between possession in the proper sense of the word and precarious possession, that is, detention. A possessor is one who possesses as owner, whereas a precarious possessor or detainer is one who exercises factual authority over a thing with the permission of or on behalf of another person.” A.N. Yiannopoulos, Civil Law Property § 319, at 629 (4th ed. 2001).

quasi-possession. See incorporeal possession.

scrambling possession. 1. A wrongful possession that the rightful possessor has not appeared to tolerate. Cf. peaceable possession. 2. Possession that is uncertain because it is in dispute. • With scrambling possession, the dispute is over who actually has possession — not over whether a party’s possession is lawful. substantial possession.See pedis possessio under POSSESSIO.

[Blacks Law 8th]