Possession

Possession requires both a degree of physical control appropriate to the natre of the thing possessed and an intention to possess... factual possession + animus possidendi

Authority for this can be found in Young v Hichens where the plaintiff’s claim that he should be entitled to recover damages for the loss fish he hadn’t caught yet fell on the grounds that he didn’t have factual possession.

The American case Popov v Hayashi introduces a number of interesting dimensions into the notion of possession such as “intentional abandonment” though it is contested that the case has weak authority in English courts as an American case which, James Penner describes as “an atrocity of a judgement”.

In the case Flack v National Crime Authority a substantial sum of money was found in Mrs Flack’s house which was confiscated and held by the police. Mrs Flack was allowed to keep the money as the court ruled she manifested an intention to exercise control over any chattels in her house, whether or not she was aware of them as her house was not public and entrance was fairly restricted

This ruling seems to fly in the face of Parker v British Airways where finders keepers applied to jewelry found in an airport lounge, though it was deemed that BA hadn’t manifested an intention to exercise control over any chattels found in the lounge and entrance was not sufficiently restricted.

Interference with possession

The main torts for interfering with land (real property) are trespass, nuisance and novel disseissin. The main torts for interfering with goods are trespass and conversion, called the intentional torts though honest and unknowing people can commit them.

Tort #1 – conversion, which Fresno Air Service v Wood established was the wrongful exercise and actual interference of dominion over the personal property of others. Wrongful withholding of property can constitute actual interference (Edwards v Jenkins).

Tort #2 – trespass to chattel. This exists where there has been damage to property or the owners usage of the property has been interfered with (Popov v Hayashi)

Marcq v Christies – Christies failed to sell a painting they didn’t know was stolen – if it had been sold Chrusties would have transferred a right to chattel and committed a conversion.

The Winkfield – Establishes rights of possession for a bailee as the ship The Winkfield was allowed to recover damages as if the owner.

Adverse Possession

A person with a better right to possession than another might lose that right if they do not enforce it in time. The Limitations Act (1980) sets time limits in which claims may be commenced including claims based on the torts of trespass and conversion.

Adverse possession is becoming more and more obscure for a number of reasons. Firstly, the limitations act doesn’t apply to registered land and secondly judges do not like the doctrine, viewing it as anachronistic and potentially unjust, Robert Chambers described the judge’s decision in favour of the Graham’s in JA Pye v Graham as one he took with “considerable reluctance”.

Despite this, Adverse possession was given a breath of fresh air when the grand chamber of the ECHR ruled that it did not violate the protection of Human Rights and fundamental freedoms.

N.B.

While possession does give title, it should be noted that in English law, title is relative.

A person can have a title to something without having possession and a court doesn’t decide who has the best claim but which of the claimants does, that is, unless jus tertii is invoked (which it rarely is). This means that, complex though it may be, ownership does not directly equate to ownership and indeed, as can be seen from these cases, a person can acquire a possessory title merely by taking possession.

Armory v Delamirie – Chimney sweep takes probably stolen jewellery, jeweller takes stones from him, boy awarded jewellery. They’re only judging on competing claims. Also establishes that the greatest value should be assumed when awarding damages unless proved otherwise.

Costello v Derbyshire Constabulary – Almost undoubted that Costello knew car in his possession was stolen but still allowed to keep car based on principles established in Webb... possessor has possessory title, the party with the better title is entitled to succeed and the limited right of the police to retain property is unaffected by any perceived public policy consideration.

Waverley Borough Council v Fletcher – Clash of finders keepers and lawful possessors of land again but blurry line now. Owner of land has rights to articles found in or attached to the land (Elwes v Brigg gas co) but finder has rights against all but real owner. Judgement held on the fact that Mr Fletcher was a trespasser, usage of the park was supposed to be limited to recreational purposes and without a license digging is outside his remit.

Perry v Clissold – Judge orders Minister of Public Instruction for New South Wales to pay compensation ot the executors of an estate which included land that was acquired with a compulsory order... the hope was that this would prevent further “shaking of title”, where people try and claim land for nothing.