possession

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Possession

The ownership, control, or occupancy of a thing, most frequently land or Personal Property, by a person.The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapons—for example, whether a renter is entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property.

The idea of possession is as old as the related concepts of private property and ownership. Our modern possession laws originated in the ancient Roman doctrines of possessio. English Natural Law inherited most of the Roman possession ideas, and later the British brought their law of possession to the American colonies. Following the War of Independence, state and federal courts continued to use and expand upon the historical notions of possession.

Possession versus Ownership

Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.

The myriad distinctions between possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times these modifiers are combined, as in "joint constructive possession." All these different kinds of possession, however, originate from what the law calls "actual possession."

Actual Possession

"Actual possession is what most of us think of as possession—that is, having physical custody or control of an object" (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y. 1988]). Actual possession, also sometimes called possession in fact, is used to describe immediate physical contact. For example, a person wearing a watch has actual possession of the watch. Likewise, if you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of possession, however, is by necessity very limited. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly deal with these situations, courts have broadened the scope of possession beyond actual possession.

Constructive Possession

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. Constructive possession is frequently used in cases involving criminal possession.

Criminal Possession

Both federal and state statutes make possession of many dangerous or undesirable items criminal. For example, the federal statute 26 U.S.C.A. § 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, Burglary tools, and stolen property, is also made criminal under various laws. Criminal possession, especially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item.

Historically, actual possession was required for a criminal possession conviction. Beginning in the 1920s, however, courts began expanding criminal possession to include constructive possession. The federal Prohibition of intoxicating liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 [1920]). Subsequent cases, especially narcotics cases, have continued to expand the law of criminal possession.

Possession and Intent

In civil cases intent is rarely a part of possession. However, in criminal cases possession usually requires conscious possession. In other words, the person must be conscious of the fact that the item is illegal and that he or she possesses it. A person with possession of illegal drugs may avoid conviction if he or she believed the drugs were legal. Generally, to be guilty of criminal possession, a person must either know the item is illegal when it is received or must keep possession of the object after learning it is illegal.

Further readings

Lafave, Wayne R., and Austin W. Scott, Jr. 1995. Substantive Criminal Law. St. Paul, Minn.: West.

Singer, George H. 1992. "Constructive Possession of Controlled Substances: A North Dakota Look at a Nationwide Problem." North Dakota Law Review 68.

Snyder, David V. 1992. "Symposium: Relationships Among Roman Law, Common Law, and Modern Civil Law." Tulane Law Review 66.

Cross-references

Adverse Possession; Drugs and Narcotics.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

possession

n. any article, object, asset or property which one owns, occupies, holds or has under control. "Constructive possession" involves property which is not immediately held, but which one has the right to hold and the means to get (such as a key to a storeroom or safe deposit box). "Criminal possession" is the holding of property which it is illegal to possess such as controlled narcotics, stolen goods or liquor by a juvenile. The old adage "possession is nine-tenths of the law" is a rule of force and not of law, since ownership requires the right to possess as well as actual or constructive possession. (See: possess)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

possession

1 physical control or detention of a thing.
2 legal possession recognized and protected by law; inherent in this is animus possidendi, the intention to hold the thing against others.
3 one of the elements of ownership.
Collins Dictionary of Law © W.J. Stewart, 2006

POSSESSION, intern. law. By possession is meant a country which is held by no other title than mere conquest.
     2. In this sense Possession differs from a dependency, which belongs rightfully to the country which has dominion over it; and from colony, which is a country settled by citizens or subjects of the mother country. 3 Wash. C. C. R. 286.

POSSESSION, property. The detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name. By the possession of a thing, we always conceive the condition, in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded. Thus, the seaman possesses his ship, but not the water in which it moves, although he makes each subserve his purpose.
     2. In order to complete a possession two things are required. 1st. That there be an occupancy, apprehension, (q.v.) or taking. 2dly. That the taking be with an intent to possess (animus possidendi), hence persons who have no legal wills, as children and idiots, cannot possess or acquire possession. Poth. h. It.; Etienne, h.t. See Mer. R. 358; Abbott on Ship. 9, et seq. But an infant of sufficient understanding may lawfully acquire the possession of a thing.
     3. Possession is natural or civil; natural, when a man detains a thing corporeal, as by occupying a house, cultivating grounds or retaining a movable in his custody; possession is civil, when a person ceases to reside in the house, or on the land which he occupied, or to detain the movable he possessed, but without intending to abandon the possession. See, as to possession of lands, 2 Bl. Com. 116; Hamm. Parties, 178; 1 McLean's R. 214, 265.
     4. Possession is also actual or constructive; actual, when the thing is in the immediate occupancy of the party. 3 Dey. R. 34. Constructive, when a man claims to hold by virtue of some title, without having the actual Occupancy; as, when the owner of a lot of land, regularly laid out, is in possession of any part, he is considered constructively in possession of the whole. 11 Vern. R. 129. What removal of property or loss of possession will be sufficient to constitute larceny, vide 2 Chit. Cr. Law, 919; 19 Jurist, 14; Etienne, h.t. Civ. Code of Louis. 3391, et seq.
     5. Possession, in the civil law, is divided into natural and civil. The same division is adopted by the Civil Code of Louisiana.
     6. Natural possession is that by which a man detains a thing corporeal, as by occupying a house, cultivating ground, or retaining a movable in his possession. Natural possession is also defined to be the corporeal detention of a thing, which we possess as belonging to us, without any title to that possession, or with a title which is void. Civ. Code of Lo. art. 3391, 3393.
     7. Possession is civil, when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession. It is the detention of a thing, by virtue of a just title, and under the conviction of possessing as owner. Id. art. 3392, 3394.
     8. Possession applies properly only to corporeal things, movables and immovables. The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi. possession, and is exercised by a species of possession of which these rights are susceptible. Id. art. 3395.
     9. Possession may be enjoyed by the proprietor of the, thing, or by another for him; thus the proprietor of a house possesses it by his tenant or farmer.
    10. To acquire possession of a property, two things are requisite. 1. The intention of possessing as owner. 2. The corporeal possession of the thing. Id. art. 3399.
    11. Possession is lost with or without the consent of the possessor. It is lost with his consent, 1. When he transfers this possession to another with the intention to divest himself of it. 2. When he does some act, which manifests his intention of abandoning possession, as when a man throws into the street furniture or clothes, of which he no longer chooses to make use. Id. art. 3411. A possessor of an estate loses the possession against his consent. 1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from reentering. 2. When the possessor of an estate allows it to be usurped, and held for a year, without, during that time, having done any act of possession, or interfered with the usurper's possession. Id. art. 3412.
    12. As to the effects of the purchaser's taking possession, see Sugd. Vend. 8, 9; 3 P. Wms. 193; 1 Ves. Jr. 226; 12 Ves. Jr. 27; 11 Ves. Jr. 464. Vide, generally, 5 Harr. & John. 230, 263; 6 Har. & John. 336; 1 Har. & John. 18; 1 Greenl. R. 109; 2 Har. & McH. 60, 254, 260; 3 Bibb, R. 209 1 Har. & McH., 210; 4 Bibb, R. 412, 6 Cowen, R. 632; 9 Cowen, R. 241; 5 Wheat. R. 116, 124; Cowp. 217; Code Nap. art. 2228; Code of the Two Sicilies, art. 2134; Bavarian Code, B. 2, c. 4, n. 5; Prus. Code, art. 579; Domat, Lois Civ. liv. 3, t, 7, s. 1; Vin. Ab. h.t.; Wolff, Inst. Sec. 200, and the note in the French translation; 2 Greenl. Ev. Sec. 614, 615; Co. Litt. 57 a; Cro. El. 777; 5 Co. 13; 7 John. 1.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
References in classic literature ?
While, however, he discharged his functions with credit and fidelity, Marmaduke never seemed to lose sight of his own interests; for, when the estates of the adherents of the crown fell under the hammer, by the acts of confiscation, he appeared in New York, and became the purchaser of extensive possessions at comparatively low prices.
case, wherein a gentleman, after in vain trying to bridle his wife's viciousness, had at last abandoned her upon the seas of life; but in the course of years, repenting of that step, he instituted an action to recover possession of her.
To be in a state of 'possession' is, it appears, the opposite of being in a state of 'privation', just as 'positives' and 'privatives' themselves are opposite.
Jacopo could scarcely believe his senses at receiving this magnificent present, which Dantes hastened to account for by saying that he had merely been a sailor from whim and a desire to spite his family, who did not allow him as much money as he liked to spend; but that on his arrival at Leghorn he had come into possession of a large fortune, left him by an uncle, whose sole heir he was.
(at my own particular request, mind, and because it vexed me to see anybody but myself in possession of the key of the late Sir John's cellar)--then, I say, I fetched up some of our famous Latour claret, and set it in the warm summer air to take off the chill before dinner.
The expedition for the occupation of the Marquesas had sailed from Brest in the spring of 1842, and the secret of its destination was solely in the possession of its commander.
Captain Black, attended by his officers, entered the fort, caused the British standard to be erected, broke a bottle of wine and declared, in a loud voice, that he took possession of the establishment and of the country, in the name of his Britannic Majesty, changing the name of Astoria to that of Fort George.
I can only put you confidentially in possession of my private opinion, leaving you entirely free to draw your own inferences from it, and regretting that I cannot write more confidently and more definitely than I have written here.
But before I can resume my natural form, and take possession of the belongings of my forefathers, you must go out into the world and take service as a maidservant.'
Morris immediately; that he is to take possession before Michaelmas, and some of his servants are to be in the house by the end of next week."
the possession of me, I am yours; if not, forget my weakness, and
If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the Union.