The error was made easier by a different use of the phrase in a different connection.A bailee was in general liable for goods stolen from his custody, whether he had a lien or not.But the law was otherwise as to a pledgee, if he had kept the pledge with his own goods, and the two were stolen together. This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. The same expression was used in discussing the pledgee's right to assign the pledge, In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods.
With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land.For although the plaintiff in ejectment must recover on the strength of his own title as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespass.5 And although the early remedy by assize was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory.
Before closing I must say a word concerning ownership and kindred conceptions.Following the order of analysis which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner.But that presupposes ownership already existing, and the problem is to discover what calls it into being.
One fact which has this effect is first possession.The captor of wild animals, or the taker of fish from the ocean, has not merely possession, but a title good against all the world.But the most common mode of getting an original and independent title is by certain proceedings, in court or out of it, adverse to all the world.At one extreme of these is the proceeding in rem of the admiralty, which conclusively disposes of the property in its power, and, when it sells or condemns it, does not deal with this or that man's title, but gives a new title paramount to all previous interests, whatsoever they may be.The other and more familiar case is prescription, where a public adverse holding for a certain time has a similar effect.A title by prescription is not a presumed conveyance from this or owner alone, it extinguishes all previous and inconsistent claims.The two coalesce in the ancient fine with proclamations where the combined effect of the judgment and the lapse of a year and a day was to bar claims. So rights analogous to those of ownership may be given by the legislature to persons of whom some other set of facts is true.
For instance, a patentee, or one to whom the government has issued a certain instrument, and who in fact has made a patentable invention.
But what are the rights of ownership? They are substantially the same as those incident to possession.Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference.The owner is allowed to exclude all, and is accountable to no one.The possessor is allowed to exclude all but one, and is accountable to no one but him.The great body of questions which have made the subject of property so large and important are questions of conveyancing, not necessarily or generally dependent on ownership as distinguished from possession.They are questions of the effect of not having an independent and original title, but of coming in under a title already in existence, or of the modes in which an original title can be cut up among those who come in under it.These questions will be dealt with and explained where they belong, in the Lectures on Successions.
