Possession Flashcards
Types of possession
- De facto (physical) possession with intention to possess
- Legal possession (may or may not have physical possession – e.g. bailor/bailee)
- Constructive possession – the right to take physical possession from someone who has it (e.g. the holder of a bill of lading from a bailee or purchaser to whom title has passed)
Physical control
- Factual / actual possession
- Indivisible between adverse parties
Young v Hitchens
FACTS
- Plaintiff, while fishing for pilchards, had nearly encompassed the fish with a net; but defendant, by rowing his boat to the opening, disturbed the fish and prevented the capture. Plaintiff brought trespass; and, issues being joined, 1, on plaintiff’s possession of the fish: 2, on the fish being plaintiff’s, in manner, etc:
Young v Hitchens
HELD
Held that he was not entitled to recover; no special custom of the fishery being proved].
C was not in possession first, so it is not his property
First come first served
State of Ohio v Shaw
Three men were charged with stealing 730 pounds of fish worth $41. They had removed the fish from unattended nets in Lake Eerie. The nets had a funnel-like entrance through which the fish would swim. There was nothing preventing them from swimming out again, and in stormy weather, some fish would escape over the top of the nets. The trial judge directed a verdict of not guilty on the basis that the victims did not have possession of the fish (that is, the fish had not been stolen since they did not belong to anybody at the time). This was reversed on appeal]
Davis J: ‘To acquire a property right in animals ferae naturae [of a wild disposition], the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large.’
Popov v Hayashi
- Object must be lost or abandoned
- Intention to control to the exclusion of others
- Actual / physical control
- The Court found that even if only 1 and 2 were present, but actual control is prevented by an illegal act, the court may find a pre-possessory right based in equity
Practical limits of physical control
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The Tubantia: inquiries to include
- Kinds of physical control practically available
- Could physical control be applied to things as a whole
- Was occupation sufficient for practical purposes to exclude strangers from intervening?
Intention to possess
- Sometimes called animus possidendi
- Possession is control, directly or indirectly through another either of the asset itself or some larger object or some larger object in which it is contained, with the intention of asserting such control against others, whether permanently or temporarily
JA Pye v Graham
- Pye owned farmland and in 1983 allowed Graham to graze his cattle on the land under a 6-month lease. When the lease ended, P refused to grant a new lease, as he thought he might want to develop the land one day. Nevertheless, G continued to occupy the land, enclosing it and farming and grazing it. They periodically approached P for a lease, but P did not respond. In 1997 G registered a caution against P’s title. P sought to cancel it. G had acquired possession over time
- Intention is a necessary and separate element of occupation
- It is not the nature of the acts but the intention with which they are done that determined whether or not the occupier in possession
Presumption of intention
- A finder obtains possessory title to whatever he finds, even if he has found it during the commission of a wrong
- A land owner has possession and therefore title to everything in or on her land
- Flack v National Crime Authority
- Parker v British Airways Board
- Waverly Borough Council v Fletcher
- Bridges v Hawkesworth
Flack v National Crime Authority
- Mrs Flack had possession of a briefcase containing nearly $1.2m before the police took possession of it. She was unaware of its existence before the police seized it. Did her denying prior knowledge of it mean that she had no intention to possess it?
- HELD: The owner of a premises does not need to prove they own the chattels, ownership of the premises is sufficient
- Access to a residential property is so restricted that people do not need to show the animus posidendi
Parker v British Airways Board
-
If you control the premises, then you are presumed to have possession of everything within the premises
- BA were licensees of a business class lounge at HA, and Mr Parker was a business passenger and he finds a valuable bracelet on the floor of the lounge. He gives it to the lounge, and tells them to give it back to him if it is not claimed. BA sold the bracelet, Mr Parker sued BA for the money
- The claim must be based on a manifest intention to exercise control over the building and the things which may be upon or in it so as to acquire rights superior to those of a finder
- Possession must entail an ability to exclude the world
Waverly Borough Council v Fletcher
- Defendant, using a metal detector, finds a valuable medieval brooch in parkland owned by the claimant, who claims prior possession
- Because the brooch was under the soil, he was trespassing because he did not have the right to dig. The local authority had complete control over who was allowed to go underground
- “**In practice possession of land should generally be taken as carrying with it an intent to possession of objects in or attached to it”
Bridges v Hawkesworth
- Finder of a bunch of bank notes had no intention of giving up title when he handed the banknotes to the shopkeeper
- Had the bank notes been found behind the counter, the shopkeeper could have claimed possession (they were found in the main area of the shop)
Does it matter how you acquire something?
No, possession is a question of fact
