possession”, “civil possession” and “constructive possession” be kept apart and
studied separately.
52 Even after the seventeenth century Bentham era, significant
efforts coupled with a quantity of thick-lensed scholarship have gone into the matter
to settle the very loose terminology of possession. Authors Pollock and Wright have
maintained a downright viewpoint based on the impression that “possession” is an
inherent right of the owner ab ovo usque ad malas
53 whereby the inherent right is,
inter alia, a “right to restrain acts of interference with property”.
54,55 Possession,
according to Pollock and Wright is a legal emblem that mirrors ownership and as
such, ownership and possession are two logical components that complete the
owner’s absolute right over a property. This viewpoint does have its merits and
has been further substantiated by those authors in the following words:
For the present we start with this, that any 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. Possession, again, whether in the popular or in the legal sense, does not
necessarily concur with title. No plain man would hesitate to say that a squatter or a thief
possesses himself of the land occupied or the goods carried away; and the law says so too.
But the true owner, or some one claiming through him, ought to have the physical control of
whatever has been wrongfully occupied, and will recover it if the law be fulfilled. In other
words, the true owner or his delegate is entitled to possession; he is not possessor, but he
ought to be.
56
While the physical control aspect of the property is integral to ownership and one
that needs to be demonstrated by the true owner, it should be noted that the owner
may or may not always have physical possession of the property. Physical custody of
a property may remain with another person who is not the true owner; in other words,
the other person is only in possession without title to property. In this instance,
possession has shifted from the true owner to the custodian whereas the owner still
retains the right of resuming possession from the custodian. The right of the holder or
custodian of the property demonstrates a form of legal possession over the property
and without consent or prior permission; the governing law of that State will
denounce this custodianship as “illegal”. This is based on the legal ground that the
registered owner holds the title to the property whereby the title in itself establishes
the owner’s exclusive right to determine who can act as a custodian of the property in
question. If the owner is in possession, then that would be owner-possession where
both ownership and possession are infused in a single person.
57 This view would
52 Ibid. Tay (1963–1964), p. 477.
53 From beginning to end.
54 Coverdale v Charlton (1878) 4 Q. B. Div. 104; Eardley v Granville (1876) 3 Ch. D. 826.
55 Pollock and Wright (1888), pp. 22–35.
56 Ibid., p. 3.
57 Tay (1963–1964), p. 481. To explain ownership-possession, the author has cited Rudolf von
Ihering as translated by Salmond: “Possession is the objective realization of ownership. It is in fact
An Exposé of Canadian “Abandoned Vessels &. . .
351
studied separately.
52 Even after the seventeenth century Bentham era, significant
efforts coupled with a quantity of thick-lensed scholarship have gone into the matter
to settle the very loose terminology of possession. Authors Pollock and Wright have
maintained a downright viewpoint based on the impression that “possession” is an
inherent right of the owner ab ovo usque ad malas
53 whereby the inherent right is,
inter alia, a “right to restrain acts of interference with property”.
54,55 Possession,
according to Pollock and Wright is a legal emblem that mirrors ownership and as
such, ownership and possession are two logical components that complete the
owner’s absolute right over a property. This viewpoint does have its merits and
has been further substantiated by those authors in the following words:
For the present we start with this, that any 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. Possession, again, whether in the popular or in the legal sense, does not
necessarily concur with title. No plain man would hesitate to say that a squatter or a thief
possesses himself of the land occupied or the goods carried away; and the law says so too.
But the true owner, or some one claiming through him, ought to have the physical control of
whatever has been wrongfully occupied, and will recover it if the law be fulfilled. In other
words, the true owner or his delegate is entitled to possession; he is not possessor, but he
ought to be.
56
While the physical control aspect of the property is integral to ownership and one
that needs to be demonstrated by the true owner, it should be noted that the owner
may or may not always have physical possession of the property. Physical custody of
a property may remain with another person who is not the true owner; in other words,
the other person is only in possession without title to property. In this instance,
possession has shifted from the true owner to the custodian whereas the owner still
retains the right of resuming possession from the custodian. The right of the holder or
custodian of the property demonstrates a form of legal possession over the property
and without consent or prior permission; the governing law of that State will
denounce this custodianship as “illegal”. This is based on the legal ground that the
registered owner holds the title to the property whereby the title in itself establishes
the owner’s exclusive right to determine who can act as a custodian of the property in
question. If the owner is in possession, then that would be owner-possession where
both ownership and possession are infused in a single person.
57 This view would
52 Ibid. Tay (1963–1964), p. 477.
53 From beginning to end.
54 Coverdale v Charlton (1878) 4 Q. B. Div. 104; Eardley v Granville (1876) 3 Ch. D. 826.
55 Pollock and Wright (1888), pp. 22–35.
56 Ibid., p. 3.
57 Tay (1963–1964), p. 481. To explain ownership-possession, the author has cited Rudolf von
Ihering as translated by Salmond: “Possession is the objective realization of ownership. It is in fact
An Exposé of Canadian “Abandoned Vessels &. . .
351