Monday, July 6, 2009

Possession in Property Law and Theory

I'm presently working on a paper on possession.  What follows is my current thinking on the different roles that possession plays in property law and theory.  Comments of any sort would be very welcome.

The idea of possession plays three important, but distinct, roles in property law and theory.  First, possession is central to theories justifying individual ownership of objects that previously had been unowned.  These theories seek to explain and defend the origin of a system of private ownership.  In Locke’s theory of property, for example, people gain ownership of objects by possessing those objects and mixing labor with them.  Initial ownership theories rest on an idea of first possession, in which the first possessor becomes the first owner of an object.

Second, the idea of prior possession lies at the heart of many property law doctrines.  Under the rule of prior possession, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor.  If formal ownership cannot be established between two claimants for the same object, the rule of prior possession states that the prior possessor will be given ownership of the object.  There are many disputes in property law about what actually constitutes possession.  For example, the famous case of Pierson v. Post involved a dispute about whether pursuit of an animal by a hunter was sufficient to establish possession, or whether the actual killing or grabbing of the animal was necessary to possess it.  All cases agree, however, that once the issue of possession is resolved, a prior possessor typically will win over a subsequent possessor.

Prior possession bears a resemblance to first possession, in that both are consistent with the maxim “first in time, first in right” and give superior claim to an object to the earliest person to lay claim to it.  First possession and prior possession, however, tend to do different types of work.  First possession is concerned with the initial ownership of an object, and in a world where there are few unowned objects, first possession is largely relevant to theoretical debates about the idea of ownership itself.  Prior possession, in contrast, is a working doctrine reflected in the operation of property law.  It assumes the big-picture normative justification of a system of private ownership, and addresses the competing claims of ownership of two possessors, neither of whom in the typical case was the first to own the object in question.  This is not to say that the rule of prior possession is without normative content – it reflects a normative position that prior possessors should have superior rights to current possessors.

Third, possession plays an evidentiary role in disputes about ownership.  Absent other evidence about ownership, current possession may create a presumption of ownership.  This evidentiary role of possession is reflected in Lord Mansfield’s famous observation that “Possession is very strong; rather more than nine points of the law.”   Despite its evidentiary significance, however, current possession plays little substantive role in property law.  If person B has current possession, and person A can demonstrate prior possession, then the rules of property law will generally operate to vindicate A’s ownership of the object.

The difference between prior possession and current possession is reflected in the basic operation of property law.  The essential function of property law is to vindicate prior rights in an object.  If B has current possession and A had prior possession or other evidence of ownership, the law will force B to return the object to A.  We could imagine an alternative set of ownership rules that protects current possession over prior possession.  This alternative ownership law would be consistent with the playground maxim “finders keepers, losers weepers.”  (Despite its popularity with the six-to-ten-year-old set, this maxim is not reflected in the actual law of finding, and the original owner or possessor does not lose ownership to the finder.).  Under this alternate ownership regime, whoever currently possesses the object would own the object.  If B has current possession and A had prior possession, the alternate approach would protect B’s possession and would not force a return to A.  This approach is exactly the opposite of the current law of property.

Ben Barros

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I am a licensed land surveyor from Wisconsin and your premise is, sadly, growing in popularity and it does not agree with basic principles of private land ownership here in the U.S..

All private an ownership here in the U.S. is based on adverse possession, your claim of ownership is adverse to a claim that could be made by anyone else for that same parcel of land.

One of the 'sticks' in the 'bundle of rights' cited in Black's definition of fee simple is 'the unconditional right of disposition' of the land and there are no conditions specified that modify the term 'unconditional'.

Also Black's provides th definition of Alienation ans Restraint on Alienation as follows:
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

Restraint on Alienation

A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.

The relevant sentence in the Alienation definition: "Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.", means that the owner is the one responsible for preserving his ownership rights and the legal system provides any necessary assistance but it cannot supplant the owner. If you ever need assistance to eject a trespasser from your property, it will do you little good to stand on your porch waving your deed and saying, "here is my property line"; the police will rightfully state that the trespasser is not standing on that piece of paper and you must have a clearly visible physical boundary.

You might find some relevance in an article written by Atty Judon Fambrough for the April 2006 edition of Tierra Grande, a quarterly publication of the Mays Business School of Texas A&M titled; "Use it or Lose it" which is an explanation of section 16 of the Texas Civil Procedures and Remedies act.

I think it might also be helpful for you to review the frontspiece to the fourth edition of Cooley's Blackstone titled 'Some Suggestions for the Study of the Law' in which the following paragraph appears:


All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant.


In the U.S., the citizen is the source of soveriegn authority, not an agency government.

Richard Schaut

Posted by: Richard Schaut | Jul 14, 2009 8:22:32 AM

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