I have always wondered why this expression is so enduring. It is scarcely enshrined in the law, but the common law apparently gives effect to this adage by showing that one who claims ownership of any chattel must prove that ownership. In some jurisdictions, apparently, where ownership is disputed, the possessor must prove his right to ownership.
My interest was aroused by a passage in a novel of 1936. And I quote from that book:
“…possession is, roughly actual, physical control, with the intention of exercising it, and may be either rightful or wrongful. The Law protects possession, whether rightful or wrongful, by granting remedies in respect of its arbitrary disturbance. If I take away your umbrella without leave, you continue to own it, though I possess it. You have a right of action against me for taking it, of which you may or may not choose to avail yourself. But I also have a right of action against anyone in the world, except you or your agents, who interferes with my possession by taking the umbrella away from me. In such a case the new thief would have possession, I should have right of possession against him, and you would have ownership. After you have acquiesced in my wrong for six years the Law takes away its remedy of an action, but the umbrella is still yours. You have what is called a right without a remedy. The umbrella is then in rather a peculiar position; I am almost its owner, in that no-one can by legal action get it away from me, and I can myself recover it by legal action from anyone, except you, who takes it away from me. But if you chance to see it in a rack somewhere and take it back, then I have no action against you, because, despite the loss of your remedy, you never lost the property in it but remained the owner [peaceful recaption]. Further, by recovering possession, you have restored yourself to your original position, and if I manage to take the umbrella away from you again you will have a new action for this new wrong and will continue to have it for a further six years.……”
“……having by lapse of time lost her right to recover the letter from the plaintiff by action at law…… was nevertheless still its lawful owner. She had resolved to recover possession of her property by the somewhat unusual but perfectly lawful method of peaceful recaption………”
