is a possession in law or a matter of law depends on the situation and the opinion of
the concerned.
80 As such, the thought of occupatio as de facto possession invokes
two important questions. The first question is whether occupatio was adverse to the
true owner’s right? The latter question is whether occupatio was exercised on a
property that was relinquished, given up or renounced? If occupatio was an adverse
action against the true owner’s right, then the control or de facto possession could be
termed as “adverse possession” which involves a statutory period. This form of
occupatio is a question of law since “actual possession” weighs heavier than
“constructive possession”. Since occupatio or control is the actual possession of
the property or the thing, the possession in law of that property or thing will need to
be adjudged by the court to establish true title.
81 As for the second question—the
answer is quite apparent. If the property had been voluntarily abandoned, then the
legal maxim occupantis flunt derelicta would come into context. Occupantis flunt
derelicta i.e., deserted things become the property of the person who is the first to
occupy them,
82 is founded in dereliction cases and formed from abandonment that is
comprised of free consent—a principle that remains at an opposite end to those
principles that constitute the doctrine of abandonment.
83 Again, de facto possession
can be lost in a number of ways. It is only then the courts delve into the facts to
observe continuance or discontinuance and continuance without interference or
interruption.
84 These are important actions that need to be taken into account to
understand the doctrine of abandonment with regard to a res that is considered
ownerless i.e., res nullius. In maritime law, a ship that is discarded or neglected until
the owner takes all proper and necessary actions to abandon it. Even if the discarded,
neglected or unattended ship is in peril, it does not denote the fact that it has been
abandoned. There needs to be a clear indication of abandonment intentions, otherwise the ship remains the property of the owner and as such, does not become res
nullius.
and use the thing in question is practically capable; b) with what intention the acts in question were
done; and c) whether the knowledge or intention of any other person was material to their effect, and
if so, what that person did know and intend”.
80 Ibid.
81 This explanation contradicts the proposition forwarded by Pollock and Wright (1888).
82 Adeleye and Acquah-Dadzie (1999), p. 280.
83 Warder v La Belle Creole [Case No. 17, 165].
84 Pollock and Wright (1888). The authors clearly state “It is needless to point out further that
physical possession may be lost in various ways without any other person gaining it; but we must
carefully guard ourselves against hastily applying the same idea to legal possession. The law does
not . . . always or necessarily attach the rights of possession to physical control; and in like manner,
when physical and legal possession coincide, it does not necessarily follow that the loss of control in
fact shall involve the loss of possession in law. The continuance or discontinuance of physical
control is a fact, though not always an obvious fact; the continuity or interruption of legal possession
cannot be affirmed without applying to the facts, when ascertained, positive rules of law. Indeed, the
rules are quite different in the Roman law and the Common Law, so that the detailed comparison of
them is profitable, here as elsewhere, only when we bear in mind that each stands on its own ground
[endnote omitted].”
An Exposé of Canadian “Abandoned Vessels &. . .
357
the concerned.
80 As such, the thought of occupatio as de facto possession invokes
two important questions. The first question is whether occupatio was adverse to the
true owner’s right? The latter question is whether occupatio was exercised on a
property that was relinquished, given up or renounced? If occupatio was an adverse
action against the true owner’s right, then the control or de facto possession could be
termed as “adverse possession” which involves a statutory period. This form of
occupatio is a question of law since “actual possession” weighs heavier than
“constructive possession”. Since occupatio or control is the actual possession of
the property or the thing, the possession in law of that property or thing will need to
be adjudged by the court to establish true title.
81 As for the second question—the
answer is quite apparent. If the property had been voluntarily abandoned, then the
legal maxim occupantis flunt derelicta would come into context. Occupantis flunt
derelicta i.e., deserted things become the property of the person who is the first to
occupy them,
82 is founded in dereliction cases and formed from abandonment that is
comprised of free consent—a principle that remains at an opposite end to those
principles that constitute the doctrine of abandonment.
83 Again, de facto possession
can be lost in a number of ways. It is only then the courts delve into the facts to
observe continuance or discontinuance and continuance without interference or
interruption.
84 These are important actions that need to be taken into account to
understand the doctrine of abandonment with regard to a res that is considered
ownerless i.e., res nullius. In maritime law, a ship that is discarded or neglected until
the owner takes all proper and necessary actions to abandon it. Even if the discarded,
neglected or unattended ship is in peril, it does not denote the fact that it has been
abandoned. There needs to be a clear indication of abandonment intentions, otherwise the ship remains the property of the owner and as such, does not become res
nullius.
and use the thing in question is practically capable; b) with what intention the acts in question were
done; and c) whether the knowledge or intention of any other person was material to their effect, and
if so, what that person did know and intend”.
80 Ibid.
81 This explanation contradicts the proposition forwarded by Pollock and Wright (1888).
82 Adeleye and Acquah-Dadzie (1999), p. 280.
83 Warder v La Belle Creole [Case No. 17, 165].
84 Pollock and Wright (1888). The authors clearly state “It is needless to point out further that
physical possession may be lost in various ways without any other person gaining it; but we must
carefully guard ourselves against hastily applying the same idea to legal possession. The law does
not . . . always or necessarily attach the rights of possession to physical control; and in like manner,
when physical and legal possession coincide, it does not necessarily follow that the loss of control in
fact shall involve the loss of possession in law. The continuance or discontinuance of physical
control is a fact, though not always an obvious fact; the continuity or interruption of legal possession
cannot be affirmed without applying to the facts, when ascertained, positive rules of law. Indeed, the
rules are quite different in the Roman law and the Common Law, so that the detailed comparison of
them is profitable, here as elsewhere, only when we bear in mind that each stands on its own ground
[endnote omitted].”
An Exposé of Canadian “Abandoned Vessels &. . .
357