possession – detention or use of a physical thing with intent to hold it as one’s own; asserting dominion

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possession:
(14c.)

1. The fact of having or holding property in one’s power; the exercise of dominion over property.

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.

4. (usually plural) Something that a person owns or controls; PROPERTY (2).

5. A territorial dominion of a state or country. [1]

1. Occupancy and exercise of dominion over property. 42 Am J2d Prop § 42.

The exercise of dominion over land, even without a residence thereon. Morrison v Kelly, 22 Ill 610.

A holding of land legally by one’s self or through another, such as a lessee, under title, estate, or interest of any kind. Whithed v St. Anthony & Dakota Elevator Co. 9 ND 224, 83 NW 238

Respecting real property, possession involves exclusive dominion and control such as owners of like property usually exercise over it.  The existence of such possession is largely a question of fact dependent on the nature of the property and the surrounding circumstances. 35 Am J2d Fore E & D § 20.

To constitute possession, within the meaning of a reconveyance act requiring a tax title holder, in order to preserve his interest against redemption, to take possession or institute a proceeding to secure possession within the time provided, the land must be appropriated to the individual use in such a manner as to apprise the community that it is in the exclusive use and enjoyment of the person so appropriating it. Pickens v Adams, 7 111 2d 283, 131 NE2d 38, 56 ALR2d 605.

What amounts to possession and what to mere custody in the law of larceny cannot be determined according to any settled formula, but the question in any particular case must depend largely upon the capacity in which the accused was given access to or dominion over the property taken, and upon the powers or duties which the owner gave or imposed upon him with respect thereto. For example, one to whom property is delivered by the owner for some limited, special, or temporary purpose may be regarded as having its custody only, and as capable of committing larceny thereof.  Hence, if the owner gives property to another to take to the owner’s house, and such other person wrongfully sells it, he is guilty of larceny, although he conceived the intent and purpose so to dispose of it after he had received it. 32 Am J1st Larc § 56[2]

1. Occupancy and dominion over property; a holding of land legally, by one’s self (actual possession) or through another person such as a tenant (constructive possession).  The holding may be by virtue of having title or an estate or interest of any king.  one need not have a residence on th eland to be in actual possession of it. [3]

     Excerpt from Frederick Pollock & Robert Samuel Wright, An Essay on Possession in the Common Law 1-2 (1888):

     “[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, & 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 hs 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 someone else, to denote as having possession the person to whom they attach. Law takes this popular conception as a provisional groundwork, *& builds up on it the ntion of possession in a technical sense, as a definition legal relation to something capable of having an owner, which relation is distinct separable both from real & from apparent ownership, though often concurrent with one or both of them.” [4]

      Excerpt from John Salmond, Jurisprudence 285 (Glanville L. Williams ed., 10th ed. 1947):

     “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, & since their day the problem has formed the subject of a voluminous literature, while it still continues to tax the engenuity of jurists. Nor is the question oe of the mere curiosity or scientific interest, for its practical importance is not less than its difficulty. The legal consequences which flow from the acquisition & loss of possession are many & serious. Possession, for example, is evidence of ownership; the the possessor of a thing is presumed to be the owner of it, & may put all other claimants to proof of their title.” [5]

Various Forms of Possession:

adverse possession – continuous, exclusive, hostile, open, and notorious enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim; the doctrine by which title may be obtained by doing so for a specified period of time. —aka adverse dominion, though not considered an unlawful form of adverse dominion. Cf. PRESCRIPTION (5).

  • claim of right – entry and occupation of land with intent to claim and hold it for one’s own. — aka  claim of title; claim of ownership.
  • constructive adverse possession – a type of adverse possession in which the claim arises from the claimant’s payment of taxes under color of right rather than by actual possession of the land,
  • prescription – the acquisition of title to a thing by open and continuous possession over a statutory period, or the extinction of a title or right by failure to claim or exercise it over a long period.
    • prescriptive– what must or should be done based on ancient custom or long-standing use, having existed so long as to have become a matter of right.

actual possession – in adverse possession cases, actual entry upon the premises, physical occupancy and control over property such as to indicate exclusive ownership. – aka possession in fact

corporeal possession (18c.) Possession of a material object, such as a farm or a coin. — aka natural possession; possessio corporis. [1]

natural possession – exercise of physical detention or control over a thing, as by occupying a building or cultivating farmland, with or without intent to keep it permanently. — aka possessio naturalis; naturalis possessio; nuda detentio; detentio; possession in fact.

lawful possession – possession based on a good-faith belief in and claim of right.

  • claim of right – entry and occupation of land with intent to claim and hold it for one’s own. — aka  claim of title; claim of ownership.

constructive possession – control or dominion over a property without actual possession or custody of it, or possession of an entire property by virtue of occupying a portion of it. — aka possessio fictitia; possession in law.

derivative possession (1851) Lawful possession by one who does not own title.

pedal possession (1839) Actual possession, as by living on the land or by improving it.  This term usually appears in adverse-possession contexts.

possession amino domini (1830) Civil law. Possession with the intent to own a thing, movable or immovable; possession as an owner.

possession by relation of law(1830) A person’s legally recognized possession of land despite the person’s not having actual possession after being improperly or unlawfully dispossessed by another.

pedis possessio[LATIN] (1816) A foothold; an actual possession of real property, implying either actual occupancy or enclosure or use. — aka substantial possession.

possession of a right (17c.) 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. — aka possessio juris or INCORPOREAL POSSESSION.”

incorporeal possession(1964) 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. — aka 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, & 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 & even inconsistency on this point.  They sometimes include both forms under the title of possessio, while at other times they are careful to quality incorporeal possession, as quasi possessio— something which is not true possession, but is analogous to it.  The question is one of 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 288-289 (Glanville L. Williams ed. 10th ed. 1947)

precarious possession(1831) 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 or 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 & precarious possession, that is, detention. 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, Property: The Law of Things — Real Rights — Real Actions § 319, at 629 (4th ed. 2001)7

scrambling possession (1823) 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.

simple possession (1959) Criminal law. The possession of a controlled substance with no aggravating circumstances such as intent to sell.

substantial possession See pedis possessio under POSSESSIO.

temporary innocent possession (1975) The inadvertent possession of something prohibited, such as contraband, esp. when, upon discovery, the possessor intended to turn it over to the police.

possession unity See unity of possession under UNITY.

possessio pedis See pedis possessio under POSSESSIO.

possessor (15c) Someone who has possession of real or personal property; especially, a person who is in occupancy of land with the intent to control it or has been but no longer is in that position, but no one else has gained occupancy or has a right to gain it.possessorial, adj.

  • legal possessor (17c) One with the legal right to possess property, such as a buyer under a conditional sales contract, as contrasted with the legal owner who holds legal title.  See legal owner under OWNER.
  • possessor bona fide (17c) A possessor who believes that no other person has a better right to the possession.
  • possessor mala fide (1852) A possessor who knows that someone else has a better right to the possession.

possessorium – See possessory action (1) under ACTION (4).

possessory (pa-zes-a-ree), adj. (15c) Of, relating to, or having possession.

possessory action. See ACTION (4).

possessory claim. (1833) Title to public land held by a claimant who has filed a declaratory statement but has not paid for the land.

possessory conservator. See noncustodz’al parent under PARENT.

possessory estate. 1. ESTATE (1). 2. POSSESSORY INTEREST. possessory garageman’s lien. See LIEN. possessory interdict. See INTERDICT (1).

possessory interest. (18C) 1. The present right to control property, including the right to exclude others, by a person who is not necessarily the owner. 2. A present or future right to the exclusive use and possession of property. -Also termed present possessory interest; pos

sessory estate; present estate.

“We shall use the term ‘possessory interest’ to include both present and future interests, and to exclude such interests as easements and profits. The reader should note that the Restatement of Property uses the term ‘possessory’ to refer only to interests that entitle the owner to present possession. See Restatement, Property SS 7, 9, 153 (1936).” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 19-20 M (2d ed. 1984).

possessory lien. See LIEN. possessory warrant. See WARRANT (1). [1]

 

possession by inclosure. An actual adve s sion by inclosing or fencmg premi e , a om

by other acts evidencing claim of owne sh p Fa v Schrider, 72 App DC 308, 114 F d

possession in deed. Same as possessxon 1 fa

possession in fact. Actual pos e ion so called possession in deed,—-an actual and ous occupancy or exercise of full dom n o This may be either, first, an occupancy of the whole that is in pos e sion, Whth l o d called pedis pos essio, and may be call d ttal possessnon, or, second, an 0 up thereof in the name of the whol , w t suthcxent evidence of the bound of t h is claimed as one cut: e y and t c

are such that the law e e ds th

part that is occu ied 1 th b Prep § 42 p [2]

See adverse possession; consrucive possession; interupsion of possession; joint possession; naked possession; open and notorious possession; open possession; repossession; sole possession; unity of possession; writ of possession. [3]

References:

Disclaimer: All material throughout this website is compiled in accordance with Fair Use.

[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Frederick Pollock & Robert Samuel Wright, An Essay on Possession in the Common Law 1-2 (1888).

[5]: John Salmond, Jurisprudence 285 (Glanville L. Williams ed., 10th ed. 1947)

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