50 OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 



Why certainly not. Wlien yon come to personal property what is pos- 

 session ? Why the possession of a watch, of a diamond, of a bank note, 

 of a coin is one thing, the ])ossessiou of articles which are moveable, 

 but which cannot be carried about the person, as the contents of a 

 house is another; and so you go on from article to article. Possession 

 is sometimes symbolical. The delivery of a key is the delivery of pos- 

 session. The supervision of au agent may be possession. In short the 

 only definition, that is to say the nearest approach to a definition, of 

 the term "possession" that has ever been successfully given in any 

 book that I ever saw, or in any Court whose judgment I ever heard or 

 read, is that it is such occupation or control indicating ownership as 

 the nature of the property admits of, and its usefulness requires. 



I have spoken of possession of the air and light. What is my pos- 

 session of running water? Ho interest in property is better defined 

 than that — I do not mean navigable water, but small streams — the mill 

 streams that approach or run along past my property — the mill rights, 

 the water privileges as they are called. It is the right to use that water 

 fur mechanical purposes; for irrigation; for the use of animals; for 

 any purpose for which Avater is valuable. The water is not mine. 

 1 cannot do anything with it that destroys the value of it to my 

 neighbour up-stream; I cannot do anything with it that destroys the 

 value of it to my neighbour down stream. Their rights are as good 

 as mine. My right to use must be consistent with their rights to use. 

 I may use it, but I must pass it along nnpolluted, so that the use of my 

 neighbour below is as good as mine. So with my neighbour oi)posite. 

 He has a mill privilege on one side; I have one on the other. 1 may 

 have two-thirds of it ; 1 may have the paramount, he the subordinate use 

 or otherwise. It may be divided in all forms. He may or I may have the 

 right to it for a particular mill, for a particular purpose, and no other. 

 All that is property. When am I in possession of it? When am I in 

 possession of the stream that is running on to the ocean, not a drop of 

 which remains'? I am in possession of it when I am employing it in 

 any way that is consistent with its use, and of which the nature of it 

 admits. I am in possession of it when it is turning a water-mill; I am 

 in i)ossession of it when it is watering my animals. Now these illustra- 

 tions make it perfectly apparent that when you talk about "possession 

 and control", you are using a term that is absolutely indefinite, and 

 that must be defined according to the nature of the property. My 

 learned friends cited, as authority, from Pollock and Wright's excel- 

 lent treatise on Possession in the Common Law. I have the passage 

 which they cited. They cite this passage in the printed authorities 

 they have submitted to the Tribunal pending the discussion. I am read- 

 ing now from page 231. 



On the same ground trespass or tlioft cannot at common law be committed of liv- 

 ing animals/rra' natiww unless tliey are tame or conllned. They may be in the park 

 or pond of a person who has the exclusive riijht to take them, but tliey are not in 

 his possession unless they are either so confined or so powerless by reason of imma- 

 turity that they can be taken at pleasure with certainty. 



That is copied. In the haste of the preparation of the ease my friends 

 omitted to read a little further. 



An animal once tamed or reclaimed may continue in a man's possession although 

 it Jly or run abroad at its will, if it is in the habit of returning regularly to a place 

 where it is under his complete coutrol. Such habit is commonly called animus 

 revertendi. 



That is what the author meant. But it is not for that I took up the 

 book at this moment — it was on the subject of possession; and perhaps 



