It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership.
The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent.It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. Bearing in mind what was said on the question whether possession was a fact or right, it will be seen that such an antithesis between possession and right cannot be admitted as a legal distinction.The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights a mere possessor are less extensive than those of an owner.
Conversely, rights spring from certain facts supposed to be true of the person entitled to such rights.Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed.But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true--in the case supposed, the original contractee,--because no one but the original contractee can fill the situation from which they spring.
It will probably be granted by English readers, that one of the essential constituent facts consists in a certain relation to a material object.But this object may be a slave, as well as a horse; and conceptions originated in this way may be extended by a survival to free services.It is noticeable that even Bruns, in the application of his theory, does not seem to go beyond cases of status and those where, in common language, land is bound for the services in question, as it is for rent.Free services being so far treated like servile, even by our law, that the master has a right of property in them against all the world, it is only a question of degree where the line shall be drawn.It would be possible to hold that, as one might be in possession of a slave without title, so one might have all the rights of an owner in free services rendered without contract.
Perhaps there is something of that sort to be seen when a parent recovers for the seduction of a daughter over twenty-one, although there is no actual contract of service. So, throughout the whole course of the canon law and in the early law of England, rents were regarded as so far a part of the realty as to be capable of possession and disseisin, and they could be recovered like land by all assize. But the most important case of the so-called possession of rights in our law, as in the Roman, occurs with regard to easements.An easement is capable of possession in a certain sense.A man may use land in a certain way, with the intent to exclude all others from using it in any way inconsistent with his own use, but no further.If this be true possession, however, it is a limited possession of land, not of a right, as others have shown.But where an easement has been actually created, whether by deed or prescription, although it is undoubtedly true that any possessor of the dominant estate would be protected in its enjoyment, it has not been so protected in the past on the ground that the easement was in itself an object of possession, but by the survival of precedents explained in a later Lecture.Hence, to test the existence of a mere possession of this sort which the law will protect, we will take the case of a way used de facto for four years, but in which no easement has yet been acquired, and ask whether the possessor of the quasi dominant tenement would be protected in his use as against third persons.It is conceivable that he should be, but I believe that he would not.
The chief objection to the doctrine seems to be, that there is almost a contradiction between the assertions that one man has a general power and intent to exclude the world from dealing with the land, and that another has the power to use it in a particular way, and to exclude the from interfering with that.
The reconciliation of the two needs somewhat artificial reasoning.However, it should be borne in mind that the question in every case is not what was the actual power of the parties concerned, but what was their manifested power.If the latter stood thus balanced, the law might recognize a kind of split possession.But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an easement must still be explained by a reference to the facts mentioned in the Lecture referred to.
