possession

The detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name. The owning or having a thing in one's power. 64 N. Y. 80. "Possession of land is the holding of and exercise 'of exclusive dominion over it." 25 Iowa, 177. By the possession of a thing, we always conceive the condition in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded. Thus, the seaman possesses his ship, but not the water in which it moves, although he makes each subserve his purpose. (1) Actual possession' exists where the thing is in the immediate occupancy of the party. 3 Dev. (N. C.) 34. (2) Constructive possession is that which exists in contemplation of law, without actual personal occupation. 11 Vt. 129; 64 N. Y. 80. And see 1 Mc Lean (U. S.) 214, 265; 2 Bl. Comm. 116. (3) Adverse possession is possession inconsistent with the right of the true owner. See "Adverse Possession." (4) Naked possession, called also "bare possession," is actual possession without shadow or pretense of right. 3 Colo. 360. In Louisiana. (1) Civil possession exists when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession." It is the detention of a thing by virtue of a just title, and under the conviction of possessing as owner. Civ. Code La. arts. 3392, 3394. (2) Natural possession is that by which a man detains a thing corporeal; as, by occupying a house, cultivating ground, or retaining a movable in his possession. Natural possession is also defined to be the corporeal detention of a thing which we possess as belonging to us, without any title to that possession, or with a title which is void. Civ. Code La. arts. 3391, 3393.

WRIT OF. See Habere Facias Possessionem.

The detention and control or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. See Staton v. Mullis, 92 N. C. 632; Sunol v. Hepburn, 1 Cal. 263; Cox v. Devin-ney, 65 N. J. Law, 389, 47 Atl. 570; Churchill v. Onderdonk, 59 N. Y. 136; Rice v. Frayser (C. Ct) 24 Fed. 460; Travers v. McElvain, 181 111. 382, 55 N. El 135; Emmerson v. State, 33 Tex. Or. R. 89, 25 S. W. 289; Slater v. Rawson, 6 Mete. (Mass.) 444.

— Actual possession. This term, as used in the provisions of Rev. St. N. Y. p. 312, § 1, authorizing proceedings to compel the determination of claims to reni property, means a possession in fact effected by actual entry upon the premises; an actual occupation. Churchill v. Onderdonk, 59 N. Y. 134. It means an actual occupation or possession in fact, as contradistinguished from that constructive one which the legal title draws after it. The word "actual" is used in the statute in opposition to virtual or constructive, and calls for an open, visible occupancy. Cleveland v. Crawford, 7 Hun (N. Y.) 616.

— Adverse possession. The actual, open, and notorious possession and enjoyment of reni property, or of any estate lying in grant, continued for a certam length of time, held adversely and in denial and opposition to the title of another claimant, or under circumstances which indicate an assertion or color of right or title on the part of the person maintaining it, as against another person who is out of possession. Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Taylor v. Philippi, 35 W. Va. 554, 14 S. E. 130; Pickett v. Pope, 74 Ala. 122; Martin v. Maine Cent. R. Co.., 83 Me. i00, 21 Atl. 740; Dixon v. Co.ok, 47 Miss. 220.

— Chose in possession. A thing (subject of personal property) in actual possession, as distinguished from a "chose in action," which is not presently in the owner's possession, but which he has a right to demand, receive, or recover by suit.

— Civil possession. In modern civil law and in the law of Louisiana, that possession which exists when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession. It is the detention of a thing by virtue of a just title and under the conviction of possessing as owner. Civ. Code La. art. 3391 et seq.

— Constructive possession. Possession not actual but assumed to exist, where one claims to hold by virtue of some title, without having the actual occu-pahey, as, where the owner of a tract of land, regularly laid out, is in possession of a part, he is constructively in possession of the whole. Fleming v. Maddox, 30 Iowa, 241.

— Derivative possession. The kind of possession of one who is in the lawful occupation or custody of the property, but not under a claim of title of his own, but under a right derived from another, as, tor example, a tenant, bailee, licensee. etc.
—-Dispossession. The act of ousting or removing one from the possession of property previously held by him, which may be tortious and unlawful, as in the case of a forcible amotion, or in pursuance of law, as where a landlord "dispossesses" his tenant at the expiration of the term or for other cause by the aid of judicial process.

— Estate in possession. An estate whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency; an estate where the tenant is in actual pernancy or receipt of the rents and profits.

— Naked possession. The actual occupation of real estate, but without any apparent or colorable right to hold and continue such possession; spoken of as the lowest and most imperfect degree of title. 2 Bl. Comm. 195; Birdwell v. Burleson, 31 Tex. Civ. App. 31, 72 S. W. 446.

— Natural possession. That by which a man detains a thing corporeally, as, by occupying a house, cultivating ground, or retaining a movable in possession; natural possession is also defined to be the corporeal detention of a thing which we possess as belonging to us, without any title to that possession or with a title which is void. Civ. Code La. 1900, arts. 3428, 3430. And see Railroad Co.' v. Le Rosen, 52 La. Ann. 192, 26 South. 854; Sunol v. Hepburn, 1 Cal. 262.

— Open possession. Possession of reni property is said to he "open" when held without concealment or attempt at secrecy, or without being covered up in the name of a third person, or otherwise attempted to be withdrawn from sight, but in such a manner that any person interested can ascertain who is actually in possession by proper observation and inquiry. See Bass v. Pease, 79 111. App. 318.

— Peaceable possession. See Peaceable.

— Possession money. In English law. The man whom the sheriff puts in possession of goods taken under a writ of fieri facias is entitled, while he continues so in possession, to a certain sum of money per diem, which is thence termed "possession money." The amount is 3s. 6d. per day if he is boarded, or 5s. per day if he is not boarded. Brown.

— Possession, writ of. Where the judgment in an action of ejectment is for the delivery of the land claimed, or its possession, this writ is used to put the plaintiff in possession. It is in the nature of execution.

— Quasi possession. to a right what possession is to a thing; it is the exercise or enjoyment of the right, not necessarily the continuous exercise, but such an exercise as shows an intention to exercise it at any time when desired. Sweet.

— Scrambling possession. By this term is meant a struggle for possession on the land itself, not such a contest as is waged in the courts, or possession gained by an act of trespass, such as building a fence. Spiers v. Duane, 54 CaL 177; Lobdell v. Keene, 85 Minn. 90, 88 N. W. 426; Dyer v. Reitz, 14 Mo. App. 45.

— Unity of possession. Joint possession of two rights by several titles, as where a lessee of land acquires the title in fee-simple, which extinguishes the lease. The term also describes one of the essential properties of a joint estate, each of the tenants having the entire possession as well of every parcel as of the whole. 2 Bl. Comm. 182.

— Vacant possession. An estate which has been abandoned, vacated, or forsaken by the tenant. In the older books, "possession" ls sometimes used as the synonym of "seisin;" but, strictly speaking, they are entirely different terms. "The difference betwcen possession and seisin is : Lessee for years is possessed, and yet the lessor is stlil seised; and therefore the terms of law are that of chattels a man is possessed, whereas in fcoffments, gifts in tail, and leases for Ilfe he is described as 'seised.'" Noy, Max. 64. "Possession" is used in some of the books in the sense of property. "A possession is an hereditament or chattel." Finch, Law, b. 2, C. 3. Possession is a good title where no better title appears. 20 Vin. Abr. 278. Possession is nine-tenths of the law. This adage is not to be token as true to the full extent, so as to mean that the person in possession can only be ousted by one whose title is nine times batter than his, but it places in a strong light the legal truth that every claimant must succeed by the strength of his own title, and not by the weakness of his antagonist's. Wharton.

The state of power, or under one's and constructive when V. Adverse possession.

Control or custody of a thing; detention of any thing as one's own, and for enjoyment; occupation, actual or constructive, of subjects of property. The word possession, applied to lands, may mean an actual residence on the land, or such cultivation, use, and enjoyment of the same, by visible acts of ownership, as would give notice to the owner and others of the adverse possession of the land. Kimbro V. Hamilton, 28 Tex. 560. The " immediate right of possession " spoken of by the Michigan statute relative to the nature and qualities of estates in real property, in defining estates in possession, does not mean the absolute right of possession as against all possible rights or powers given for special purposes, and which have not been, but may or may not be, exerted or required for the accomplishment of such special purposes. The owner may be said to have an " estate in possession," unless there be some intervening estate in the land, the owner of which has a present paramount right of possession as against him. Campau v. Campau, 19 Mich. 116, 123. The entering upon, ditching, and making roads in a cypress swamp, for the purpose of getting shingles therein, and cutting down the timber-trees and making shingles out of them, is, in law, a possession of the swamp. Tredwell v. lleddick, 1 Ired. L. 56. In a stream not navigable, keeping up fish-traps therein, erecting and repairing dams across it, and using it every year, during the entire fishing season, for the purpose of catching fish, constitute an unequivocal possession thereof. Williams V. Buchanan, 1 Ired. L. 535. The phrase uninterrupted possession does not convey the idea of continued, incessant, unceasing possession, but that the occupant has not been interfered with or evicted by the assertion of an adverse title. Eeed v. Earnhart, 10 Ired. L. 516. cising continuous public acts of ownership, constitute actual possession which the courts will maintain in an action of trespass quare dattsum /regit, against a party intruding without superior title. Mc Lean v. Farden, 61 HI. 106. The occupation of pine-land, by annually making turpentine on it, is such an actual possession as will oust a constructive possession by one claiming merely under a superior paper title. Bynum v. Carter, 4 Ired. L. 310. Where a party takes possession of a tract of land, claiming a moiety as locator, such possession is not adverse, and, if it continues more than twenty years, does not operate as a bar. Oldhams v. Jones, 5 B. Mon. 458. Cutting trees on a tract of land susceptible of other uses and enjoyment, and feeding hogs on it, under color of title, for seven years, do not constitute such a possession as will bar an entry. Loftin ti. Cobb, 1 Jmes L. 406. Residence, though necessary to constitute a settlement, is not necessary to adverse possession. The latter may be, by cultivation and enclosure, by cultivation without enclosure, or by enclosure without cultivation; and in every case without regard to the design of the occupant, further than that it be to resist an entry by any one else. Stephens v. Leach, 19 Pa. St. 262. When a man enters upon, improves, fences, and occupies part of another man's tract of land, and has the boundaries of his claim surveyed and marked, including woodland not enclosed, and for twenty-one years openly and exclusively uses the woodland as his own, in connection with his improvement, and as farmers ordinarily use their woodland, this is an actual possession of the woodland, and excludes the constructive possession which the law usually attributes to the title, and to the owner's actual possession of the rest of his tract. Wolf V. Ament, 1 Grant Cas. 150. Occupying and cultivating land, and claiming title, is adverse possession. Robinson V. Douglass, 2 Aik. 364. The claiming title, and payment of taxes upon unoccupied lands, is no adverse possession. Reed e>. Field, 15 Vt. 672. Consult Adverse. Possession in statutes imposing a punishment for " having in possession " burglar's tools or other implements of crime cannot be limited to manual touch or personal custody. One who deposits the prohibited articles in a place of concealment may be deemed to have them in his possession. One who leaves them in care of his wife may be deemed to have them in possession jointly with her. State v. Potter, 42 Vt. 495. Secreting the coin within the county and having within one's control is a possession of counterfeit coin, within the meaning of Iowa code, § 2634. State v. Washburn, 11 Iowa, 245. exercise it by himself, or by another who keeps or exercises it in his behalf. But the word implies exclusive enjoyment. Redfield u. Utica & Syracuse R. R. Co., 25 Barb, 54. There are two kinds of possession: in fact, and by relation of law. Possession in fact is where the party is in the actual use and enjoyment of the land or other real estate at the commission of the injury. Possession by relation of law is where the party in actual possession becomes dispossessed, and is afterwards restored by reentry, or in some other lawful manner; he is then, during the period which has intervened between the dispossession and the restoration, deemed in possession by relation of law. Possession by relation is not so efficacious as possession in fact; for, while the latter affects all persons and reaches all purposes, the former extends, according to some of the books, only to some purposes and persons. Bacon v. Sheppard, 11 N. J. L. 197. The word possession, in the New York factor's act, means such control of or dominion over merchandise as enables a factor rightfully to take it into actual custody, without the aid of any new authority or document furnished by the owners; in contradistinction to a right derived from documentary evidence furnished by the owners or obtained by factors, by means of their right of possession of the goods. Pegram V. Carson, 10 Bosw. 505. Possession money. The man whom the sheriff puts in possession of goods taken under a writ oi fieri facias is entitled, whilst he continues so in possession, to a certain sum of money per diem, which is thence termed possession money. The amount is 3s. M. per day, if he is boarded, or 5s. per day, if he is not boarded. Brmm.