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What does “possession is 9/10ths of the law” mean?

Dear Cecil:

Where does the term "possession is 9/10s of the law" come from and what does it mean?

Richard Simons, Blaine, MNDear Cecil:You know the expression "posession is nine tenths of the law"? Well, no one ever mentions what the other tenth is. Care to hazard a guess? Tom Kutlow

Cecil replies:

Interesting questions, Richard, the answers to which are closely related. You’re talking about a proverb that has evolved a good deal over the centuries, and only by turning to the earliest version do we get a sense of what it originally meant.

In a 1999 article in Proverbium: Yearbook of International Proverb Scholarship, Nancy Magnuson Geise traces the phrase to a “play of uncertain authorship” (some credit Shakespeare) called The Raigne of King Edward the Third, dating from 1596. Edward III of England is challenging the throne of King John of France. Phillip, one of John’s sons, says, “I say, my Lord, claim Edward what he can, And bring he ne’er so plain a pedigree, Tis you are in the possession of the Crown, And that’s the surest point of all the Law.”

Geise finds the next variant, “[possession is] eleven points of the law,” in A Dictionary of the Proverbs in England in the Sixteenth and Seventeenth Centuries: A Collection of the Proverbs Found in English Literature and the Dictionaries of the Period by Morris Tilley, who credits William Camden circa 1623. Tilley doesn’t give the full quotation, Geise notes, and doesn’t say which of Camden’s works the phrase can be found in.

Geise says Thomas Adams, in his Works (1630), includes the phrase: “The Devill hath Eleven poynts of the law against you; that is, possession.” This is the first confirmed example that associates “11 points of the law” with possession. Geise quotes other examples of the “11 points” theme from 1639, 1650, 1678, and on up through 1855.

Meanwhile, in 1616, Thomas Draxe, in his book of proverbs, Bibliotheca Scholastica Instructissima, shaves a couple points off the total: “Possession is nine points in the law.” After this instance and maybe one other, this variant of the proverb was dormant until 1809, Geise says.

A problem with early versions of the proverb was that nobody was really sure what the ten or twelve points of the law were. Some proposed lists of points, failing to grasp that the proverb was almost certainly meant ironically — if possession is nine points, the points are 1. possession; 2. possession; 3. possession … you get the picture. Tom, in fact, has asked the more interesting question: what’s the point that isn’t possession? Nobody could satisfactorily answer that, either. No doubt it was confusion over the “points” that led to the modern version. As Geise puts it, “The jump … to the latest, and today by far the most prevalent form, possession is nine-tenths of the law, is logical. Unable to have a clear idea of what the legal points are that the original proverb could refer to, the proverb took on a more familiar form as a fraction: the implication of ‘points’ became superfluous.”

Geise was unable to locate more than three literary examples of the nine-tenths version, but it appears in plenty of judicial opinions. Of course, none of this answers Tom’s question: What’s the other point (or tenth or twelfth) of the law? That depends on what the proverb means, and it’s to that we now turn.

In the oldest known version of the proverb, the meaning of possession is primitive: If I’ve got my mitts on something, I’m already ahead in the fight to keep it. To put it more bluntly, might makes right. It’s easy to believe this is the original meaning of the expression.

But it’s not the only possible interpretation. The Dictionary of English Law (1959) offers a more nuanced take on the matter: “the adage … means that the person in possession can only be ousted by one whose title is better than his; every claimant must succeed by the strength of his own title and not by the weakness of his antagonist’s.” As we’ll see, if someone has something that I want, and I sue them for it, I’ve got to show that I have a right to it (a legal concept called title). If I don’t, the other guy gets to keep it, even if a third party has a better claim than either of us. I’ll call this the finders keepers rule.

On yet another hand, possession can sometimes be used as an indicator of ownership or even to create ownership.

Whatever fraction you care to assign, possession is a major part of property law. In many cases the court must decide when possession of an object started, in order to settle a dispute between the guy who found it first and the guy that ‘found’ it after the first guy. Other times courts are called upon to determine when someone’s possession of an item ended — this is often an issue in cases involving shipwrecks, for example.

One of the best known cases on when possession begins is Pierson v. Post (1805). Post was chasing a fox with his dogs “upon a certain wild and uninhabited, unpossessed and waste land, called the beach.” Pierson spotted the fox Post was after and snagged it for himself. Post sued Pierson for the value of the fox. The trial court found for Post, but the appellate court reversed the verdict. In an opinion still studied by American law students, the appellate court reasoned that foxes were wild animals (ferae naturae), and that mere pursuit did not amount to possession. Such an animal could only be possessed by capture, which to the court meant the claimant had to show he had deprived the animal of its “natural liberty” and subjected it “to the control of [the] pursuer.” The court conceded that a hunter who had mortally wounded the animal he was chasing might have possession.

The notion of possession has been tested and modified over the years as questions arose about possession of sunken ships, buried treasure (see below), underground water and mineral rights, underground storage rights, wildlife regulation, and pollution. In many cases, one can gain possession by capturing an item in less than literal fashion, but questions still come up about how much control is enough.

In a recent case, Popov v. Hayashi, two fans argued about who owned the the 73rd home run ball hit by Barry Bonds. According to the court:

it landed in the upper portion of the webbing of a softball glove worn by Alex Popov. While the glove stopped the trajectory of the ball, it is not at all clear that the ball was secure. Popov had to reach for the ball and in doing so, may have lost his balance.

Popov was overwhelmed by a crowd as the ball entered his glove, and he went down.

Some people intentionally descended on him for the purpose of taking the ball away, while others were involuntarily forced to the ground by the momentum of the crowd.

In the melee, Popov lost the ball.

Hayashi, an innocent bystander, was knocked down by the mob, saw the ball, and grabbed it. He and Popov wound up in court over the ball. The court acknowledged the rule of capture discussed in Pierson (including the possible exception for mortally wounded animals), and other cases that relaxed the control requirement. It noted that baseball cases were different from many of the exceptions. “It is impossible to wrap ones arms around a whale, a fleeing fox or a sunken ship.” Baseball requires different treatment. “Not only is it physically possible for a person to acquire unequivocal dominion and control of an abandoned baseball, but fans generally expect a claimant to have accomplished as much. The custom and practice of the stands creates a reasonable expectation that a person will achieve full control of a ball before claiming possession.”

The court found that Popov did not achieve full possession: “the actor must retain control of the ball after incidental contact with people and things. Mr. Popov has not established … that he would have retained control of the ball after all momentum ceased and after any incidental contact with people or objects.” According to the court, Hayashi was the first to possess the ball. But here is where we come to the final point, or tenth, of the law.

Sometimes bare possession doesn’t win the day. In this case, the court found that someone who does his best to capture a piece of property, but fails because of the illegal acts of third parties, has a right to possess the property. The crowd had interfered with Popov’s attempt to capture the ball. But the court also found it unfair to give the ball to Popov. The court reasoned that Hayashi would have owned the ball by virtue of being the one who wound up with it had it not been for Popov’s claim. Because the court found problems with awarding the ball to either party, it awarded it to them both equally.

So possession is important, but is it nine-tenths of the law? Sometimes it’s more — it’s the whole thing. That’s especially true of the law of finders.

Possession is important in cases involving finders of ownerless property (like wild animals) or, more commonly, lost and abandoned property. The general rule is that the finder of lost property doesn’t “own” it; he or she merely has a better claim than any but the rightful owner — the person who had it to start with.

In other words, if A steals a lamp from O, and B later takes it from A, A can recover the lamp from B, and B is not allowed to attack A’s title to the lamp; that’s called a jus tertii argument. If B is to win, B will have to establish her own superior title to the lamp, and she can’t do it by pointing out that someone had it before A.

But what about the original owner’s claims? In most cases the original owner wins, but there are exceptions under some circumstances. One is the statute of limitations. It varies from state to state, but every state places a time limit on claims for possession of property. Getting property by taking it and holding onto it until the statute runs is called adverse possession.

Another exception is abandonment — the original owner can abandon the property. Abandonment isn’t all that easy to establish, but sometimes the owner unequivocally relinquishes possession, in which case he forfeits any subsequent claim.

In fact, the only reason Hayashi and Popov fought over the ball is that the ball club didn’t claim it. Baseball teams have treated foul balls as abandoned since the 1920s, when a boy named Robert Cotter was acquitted of larceny after he refused to return a foul ball he caught, and Reuben Berman sued the New York Giants for mental anguish after they ejected him for a similar transgression. In response to these cases, the teams decided not to request fans to return foul balls, a doctrine known as “Reuben’s Rule.” In a recent article, Ben Walker says professional tennis still insists on the return of tennis balls, so the case wouldn’t come up between two spectators at a tennis match unless the owner of the ball gave up his or her claim.

Actual possession often loses out to constructive possession. If I own a house with a yard, there may be items buried or concealed on the premises that I don’t know about, ranging from dead bodies (which belong to their families) to chests full of coins and gold, boats, or other valuable items. If someone finds something valuable in my backyard, I may claim it because it was on my property (I had constructive possession of it). If the person was a trespasser, I will usually win.

A well-known exception is treasure trove. According to a recent case from Idaho, “Treasure trove is a category exclusively for gold or silver in coin, plate, bullion, and sometimes its paper money equivalents, found concealed in the earth or in a house or other private place. Treasure trove carries with it the thought of antiquity, i.e., that the treasure has been concealed for so long as to indicate that the owner is probably dead or unknown.” In jurisdictions that recognize the treasure trove rule (only a minority do), a trespasser can keep buried treasure he dug up without the landowner’s consent. But treasure trove as a legal doctrine may be on the way out. In “The Slow Death of Treasure Trove,” Richard Cunningham notes that courts are increasingly reluctant to apply it. Instead, they award the property to the landowner on the theory that the owner of the property mislaid the item and may come looking for it.

In the Idaho case, Mr. Corliss was working on a driveway at the residence of Rolling Stone publisher Jann Wenner. He and Anderson, his boss, were excavating soil for the driveway when they unearthed a glass jar containing paper-wrapped rolls of gold coins. Anderson and Corliss collected, cleaned, and inventoried the gold pieces, which dated from 1857 to 1914. After some intrigue, Corliss sued Wenner and Anderson for the coins. The court rejected Corliss’s claim, refusing to apply the treasure trove rule in Idaho. In ruling against Corliss, the Idaho court of appeals explained the different types of finds, based on the inferred intention of the person who lost or misplaced the property:

Abandoned Property — that which the owner has discarded or voluntarily forsaken with the intention of terminating his ownership, but without vesting ownership in any other person.

Lost Property — that property which the owner has involuntarily and unintentionally parted with through neglect, carelessness, or inadvertence and does not know the whereabouts.

Mislaid Property — that which the owner has intentionally set down in a place where he can again resort to it, and then forgets where he put it.

Treasure Trove — [we already discussed this one]

Embedded Property — that personal property which has become a part of the natural earth, such as pottery, the sunken wreck of a steamship, or a rotted-away sack of gold-bearing quartz rock buried or partially buried in the ground.

Under these doctrines, the finder of lost or abandoned property and treasure trove acquires a right to possess the property against the entire world but the rightful owner regardless of the place of finding. The finder of mislaid property is required to turn it over to the owner of the premises who has the duty to safeguard the property for the true owner. Possession of embedded property goes to owner of the land on which the property was found.

Actually, the part about finders of lost or abandoned property taking the property regardless of the place of finding is an overgeneralization. Trespassers and tenants usually lose against the owner of the property where the find occurs. Treasure trove is pretty much the only doctrine under which a trespasser can keep property taken without the landowner’s permission.

The court noted that the treasure trove rule was counterintuitive: “the notion that a trespassing treasure hunter, or a hired handyman or employee, could or might have greater possessory rights than a landowner in objects uncovered on [the latter’s] property runs counter to the reasonable expectations of present-day land ownership.” The rule really wasn’t part of English common law, either. Instead of a “finders keepers” rule, English law originally gave the find to the finder, but “the crown, as early as the year 1130, exercised its royal prerogative to take such property for itself. Only after the American colonies gained their independence from England did some states grant possession of treasure trove to the finder.” For these reasons, among others, the court decided that treasure trove did not apply in Idaho. Gold or silver in coins, bullion, or plate found in the ground is treated as embedded in the soil and belongs to the landowner. So Corliss was out of luck.

The law of finds has been further modified by statute in some states. For example, California Penal Code Section 485 says: “One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.” Around 20 states have provisions that require a finder to turn found property over to local law enforcement authorities. The authorities then try to locate the true owner. If the owner does not appear, then in many cases the finder gets the property. Courts have not interpreted these statutes uniformly — some still apply the common-law rules and categories despite them.

A finder holds the property subject to the rights of the true owner. Lawyers call this concept a bailment — the owner is the bailor, and the finder is the bailee. If the property is damaged and the owner shows up, the finder may have to compensate the owner. Moreover, if the finder gives the property to someone else (even if the finder mistakenly believes that the recipient is the true owner), the finder is liable to the owner for the misdelivery.

As I say, we could argue about the percentage. But possession is a very important concept in modern property law.

Cecil Adams

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