The word "possession" denotes such a group of facts. Hence, when
we say of a man that he has possession, we affirm directly that
all the facts of a certain group are true of him, and we convey
indirectly or by implication that the law will give him the
advantage of the situation. Contract, or property, or any other
substantive notion of the law, may be analyzed in the same way,
and should be treated in the same order. The only difference is,
that, [215] while possession denotes the facts and connotes the
consequence, property always, and contract with more uncertainty
and oscillation, denote the consequence and connote the facts.
When we say that a man owns a thing, we affirm directly that he
has the benefit of the consequences attached to a certain group
of facts, and, by implication, that the facts are true of him.
The important thing to grasp is, that each of these legal
compounds, possession, property, and contract, is to be analyzed
into fact and right, antecedent and consequent, in like manner as
every other. It is wholly immaterial that one element is accented
by one word, and the other by the other two. We are not studying
etymology, but law. There are always two things to be asked:
first, what are the facts which make up the group in question;
and then, what are the consequences attached by the law to that
group. The former generally offers the only difficulties.
Hence, it is almost tautologous to say that the protection which
the law attaches by way of consequence to possession, is as truly
a right in a legal sense as those consequences which are attached
to adverse holding for the period of prescription, or to a
promise for value or under seal. If the statement is aided by
dramatic reinforcement, I may add that possessory rights pass by
descent or devise, as well as by conveyance, /1/ and that they
are taxed as property in some of the States. /2/
We are now ready to analyze possession as understood by the
common law. In order to discover the facts which constitute it,
it will be found best to study them at the moment when possession
is first gained. For then they must [216] all be present in the
same way that both consideration and promise must be present at
the moment of making a contract. But when we turn to the
continuance of possessory rights, or, as is commonly said, the
continuance of possession, it will be agreed by all schools that
less than all the facts required to call those rights into being
need continue presently true in order to keep them alive.
To gain possession, then, a man must stand in a certain physical
relation to the object and to the rest of the world, and must
have a certain intent. These relations and this intent are the
facts of which we are in search.
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