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Possession

Possession requires both physical control and intention to possess. In Young v Hichens, a claim for loss of uncaught fish failed because the plaintiff did not have factual possession. The case of Popov v Hayashi introduced concepts like "intentional abandonment" but is not strong authority in English courts. In Flack v National Crime Authority, money found in a private home was ruled possessed by the homeowner, while in Parker v British Airways, an airport lounge was not considered sufficiently private for lost items to be possessed by the lounge owner.

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Adam 'Fez' Ferris
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3K views

Possession

Possession requires both physical control and intention to possess. In Young v Hichens, a claim for loss of uncaught fish failed because the plaintiff did not have factual possession. The case of Popov v Hayashi introduced concepts like "intentional abandonment" but is not strong authority in English courts. In Flack v National Crime Authority, money found in a private home was ruled possessed by the homeowner, while in Parker v British Airways, an airport lounge was not considered sufficiently private for lost items to be possessed by the lounge owner.

Uploaded by

Adam 'Fez' Ferris
Copyright
© Attribution Non-Commercial (BY-NC)
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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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.

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