But it no more follows, from the single circumstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance.  When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance, [237] the reasons for conferring the particular right have great weight in determining what facts shall be to be so.  Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present.  On the same principle, it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights.  It does not stand on the same ground as a new possession adversely taken by another.  We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation.  It abhors the absence of proprietary or possessory rights as a kind of vacuum.  Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up. 1

Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison.  The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it.  The finder’s power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt [238] act, had manifested his power and intent to exclude others from the purse.  The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession.  The law deals, for the most part, with overt acts and facts which can be known by the senses.  So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor’s power of excluding him, he has not manifested his power.  It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.