The word “possession” denotes such a group of facts.  Hence, when we say of a man that he has possession, we affirm directly that all the facts of a certain group are true of him, and we convey indirectly or by implication that the law will give him the advantage of the situation.  Contract, or property, or any other substantive notion of the law, may be analyzed in the same way, and should be treated in the same order.  The only difference is, that, [215] while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts.  When we say that a man owns a thing, we affirm directly that he has the benefit of the consequences attached to a certain group of facts, and, by implication, that the facts are true of him.  The important thing to grasp is, that each of these legal compounds, possession, property, and contract, is to be analyzed into fact and right, antecedent and consequent, in like manner as every other.  It is wholly immaterial that one element is accented by one word, and the other by the other two.  We are not studying etymology, but law.  There are always two things to be asked:  first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group.  The former generally offers the only difficulties.

Hence, it is almost tautologous to say that the protection which the law attaches by way of consequence to possession, is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription, or to a promise for value or under seal.  If the statement is aided by dramatic reinforcement, I may add that possessory rights pass by descent or devise, as well as by conveyance, 1 and that they are taxed as property in some of the States. 2

We are now ready to analyze possession as understood by the common law.  In order to discover the facts which constitute it, it will be found best to study them at the moment when possession is first gained.  For then they must [216] all be present in the same way that both consideration and promise must be present at the moment of making a contract.  But when we turn to the continuance of possessory rights, or, as is commonly said, the continuance of possession, it will be agreed by all schools that less than all the facts required to call those rights into being need continue presently true in order to keep them alive.

To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent.  These relations and this intent are the facts of which we are in search.