Possession

Question 1

Types of possession

Answer 1

• 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)

Question 2

Physical control

Answer 2

• Factual / actual possession
• Indivisible between adverse parties

Question 3

Young v Hitchens

FACTS

Answer 3

• 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:

Question 4

Young v Hitchens

HELD

Answer 4

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

Question 5

State of Ohio v Shaw

Answer 5

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.’

Question 6

Popov v Hayashi

Answer 6

• 1. Object must be lost or abandoned
• 2. Intention to control to the exclusion of others
• 3. 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

Question 7

Practical limits of physical control

Answer 7

• 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?

Question 8

Intention to possess

Answer 8

• 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

Question 9

JA Pye v Graham

Answer 9

• 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

Question 10

Presumption of intention

Answer 10

• 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

Question 11

Flack v National Crime Authority

Answer 11

• 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

Question 12

Parker v British Airways Board

Answer 12

• 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

Question 13

Waverly Borough Council v Fletcher

Answer 13

• 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”

Question 14

Bridges v Hawkesworth

Answer 14

• 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)

Question 15

Does it matter how you acquire something?

Answer 15

No, possession is a question of fact

Question 16

Castello v Derbyshire Constabulary

Answer 16

• Police had taken possession of car they believed had been stolen. After statutory period elapses, Q is whether they have to return it to claimant, who, they believed, knew it was stolen
  
  • Lightman J: “The fact of possession of a chattel of itself gives to the possessor a possessory title and the possessor is entitled to rely on such title without reference to the circumstances in which such possession was obtained: his entitlement to do so is not prejudiced by the fact that he obtained such possession unlawfully or under an illegal transaction**.”
  • Even though the car was acquired unlawfully, he had a better title than anyone coming after

Question 17

Asher v Whitlock

Answer 17

• Testator devises plot, of which he is in possession, to his widow for as long as she remains a widow, and thence to his daughter. Widow remarries, then dies, leaving 2^nd husband in possession. Sued by daughter’s husband. Latter argues that as he is in factual possession, the land is his, but Court finds for plaintiff - testator’s possession was an interest that he had the power to devise by will as he saw fit. Once widow remarried, she was in wrongful possession and would have to cede to her daughter, who had received the right

Question 18

Common law meaning of land

Answer 18

• “T**he world of the common lawyer has always been a curious blend of the physical and the abstract, a mixture of the earthly pragmatic and the deeply conceptual” (Gray & Gray, Elements of Land Law)
  
  • The location of our abstract property rights is the physical world

Question 19

Cujus est solum, ejus est usque ad coleum et ad infernos

Answer 19

• Whoever owns the soil also owns to the sky and to the depths [Accursius of Bologna]
• Bocardo SA v Star Energy UK: this maxim should not be applied literally. There are inherent limits on the content of that right
  
  • “The registered freehold proprietor of the surface will also be the owner of strata beneath the surface of his land, including minerals, unless there has been some express or implied alienation of the whole or a particular part of the strata to another”
• Bernstein v Skyviews & General Ltd: property into space above land must be limited to “such as necessary for the ordinary use and enjoyment of the land,” per Griffiths J
• NB: natural substances in the land belong to the owner except coal, natural gas, gold and silver (Treasure Act 1996)

Question 20

Quicquid plantatur solo solo cedit

Answer 20

• Whatever is affixed to the soil belongs to the soil
• If an artworks meaning is dependent on its location, it is land, if it isn’t, its chattel
  
  • Independent objects / chattels: tangible things that can be owned but which are not land
  • An initially independent object can lose its separate identity and become part of the land as a fixture: it loses its independent identity and is no longer a chattel, but is instead part and parcel of the land

Question 21

The Creative Foundation v Dreamland Leisure Ltd

Answer 21

• Banksy painted on Dreamland’s wall (which they were renting), and Dreamland sold the wall. The owner of the building sued Dreamland for it.
  
  • The artwork is a fixture, an object which are affixed to the land but can be removed without damaging the land; it often becomes part of the land

Question 22

Annexation

Answer 22

• Degree: to what extent is the thing affixed to the land?
  
  • If the thing is fixed, this is prima facie evidence of intention for it to be part of land, but this can be rebutted
    
    • E.g. If fixing was intended only to protect the thing, and the thing could be removed as a whole [Gilpin v Legg]
  • If the thing is not fixed, it is prima facie evidence of chattel, but this too can be rebutted
    
    • Fixing is not necessary; the thing would change its nature if it was removed
• Purpose: for what end was it affixed to the land?
  
  • This must be supported by evidence (provided by degree of annexation, or evidence to rebut prima facie conclusions)

Question 23

Leigh v Taylor

Answer 23

• Some tapestries were nailed to a wall; are the tapestries to be passed with the freehold of the estate to the person taking over the property?
  
  • Earl of Halsbury LC: the purpose of attaching the tapestries to the wall was for the better enjoyment of them as tapestries. It not was intended for them to become part of the fabric of the house
  • Lord Macnaughten: “the mode of annexation is only one of the circumstances of the case, and not always the most important”

Question 24

Berkley v Poulett

Annexation

Answer 24

• “An object resting on the ground by its own weight alone is not a fixture … conversely, an object affixed to realty but capable of being removed without much may yet be a fixture, if, for example, the purpose of its affixing be that of creating a beautiful room as a whole”

Question 25

*Elitestone v Morris* Annexation

Answer 25

* “*A**n object which is brought onto land may be classified under one of three broad heads. It may be: (a) a chattel; (b) a fixture; or (c) part and parcel of the land itself. Objects in categories (b) and (c) are treated as being part of the land*”

Question 26

What is part of land?

Answer 26

* Wild animals cannot be property unless they are captured or killed [*Case of Swans*] * Plants, trees, shrubs, flowers and other things naturally found in the soil are part of the land * Treasure is not part of the land – Treasure Act 1996 * If you find treasure, you cannot keep it but you will get compensation for giving it to the authorities * S1 defines treasure as “an object at least 300 years old and containing at least 10% precious metals, or 10 or more coins at least 300 years old, or other objects at least 200 years old and have ‘outstanding archaeological important.’ But the owner of the land can receive an ex gratia payment from the state” * Oil, gas, minerals, gold or silver will belong to the state * Petroleum Act 1998 s1(a): any mineral oil or relative hydrocarbon and natural existing in its natural condition in strata belongs to the crown