It will now be easy to deal with the question of power as to third persons.This is naturally a power coextensive with the intent.But we must bear in mind that the law deals only or mainly with manifested facts; and hence, when we speak of a power to exclude others, we mean no more than a power which so appears in its manifestation. A ruffian may be within equal reach and sight when a child picks up a pocket-book; but if he does nothing, the child has manifested the needful power as well as if it had been backed by a hundred policemen.Thus narrowed, it might be suggested that the manifestation of is only important as a manifestation of intent.But the two things are distinct, and the former becomes decisive when there are two contemporaneous and conflicting intents.Thus, where two parties, neither having title, claimed a crop of corn adversely to each other, and cultivated it alternately, and the plaintiff gathered and threw it in small piles in the same field, where it lay for a week, and then each party simultaneously began to carry it away, it was held the plaintiff had not gained possession. But the first interference of the defendant had been after the gathering into piles, the plaintiff would probably have recovered. So where trustees possessed of a schoolroom put in a schoolmaster, and he was afterwards dismissed, but the next day (June 30) re-entered by force; on the fourth of July he was required by notice to depart, and was not ejected until the eleventh; it was considered that the schoolmaster never got possession as against the trustees. We are led, in this connection, to the subject of the continuance of the rights acquired by gaining possession.To gain possession, it has been seen, there must be certain physical relations, as explained, and a certain intent.It remains to be inquired, how far these facts must continue to be presently true of a person in order that he may keep the rights which follow from their presence.The prevailing view is that of Savigny.He thinks that there must be always the same animus as at the moment of acquisition, and a constant power to reproduce at will the original physical relations to the object.Every one agrees that it is not necessary to have always a present power over the thing, otherwise one could only possess what was under his hand.
But it is a question whether we cannot dispense with even more.
The facts which constitute possession are in their nature capable of continuing presently true for a lifetime.Hence there has arisen an ambiguity of language which has led to much confusion of thought.We use the word "possession," indifferently, to signify the presence of all the facts needful to gain it, and also the condition of him who, although some of them no longer exist, is still protected as if they did.Consequently it has been only too easy to treat the cessation of the facts as the loss of the right, as some German writers very nearly do. But it no more follows, from the single circumstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance.When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance, the reasons for conferring the particular right have great weight in determining what facts shall be to be so.Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present.On the same principle, it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights.It does not stand on the same ground as a new possession adversely taken by another.We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation.It abhors the absence of proprietary or possessory rights as a kind of vacuum.Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up. Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison.The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it.The finder's power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt act, had manifested his power and intent to exclude others from the purse.The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession.The law deals, for the most part, with overt acts and facts which can be known by the senses.
So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor's power of excluding him, he has not manifested his power.It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.
