In speaking of change of possession without consent, we mean to exclude only that present consent of the parties which is essential to delivery. An entry or taking without immediate consent may be justified, or may purport to be justified, under a title or authority created by the dispossessed party himself. But even so it is practically more akin to an exercise of paramount authority than to acceptance from a willing transferor.
In this sense, then, acquisition of possession without the consent of the former possessor may be of the following kinds:
1. Rightful: which may be by title,
- created by the former possessor, as when a mortgagee takes possession;
- paramount, as when an abator has entered, and afterwards the heir enters, or when the true owner of goods retakes them.
2. Justified or excused,
- by authority of law (distress, execution, and the like; and, in some cases, public necessity);
- as being for the true owner’s benefit, or presumed so to be.
3. Wrongful: by trespass amounting to disseisin, ouster, or asportation.
The difference between an assumption of possession which is fully rightful and one which is only justified or excused is that, according to the strict theory of the common law, a possession which has once begun rightfully cannot afterwards become wrongful, but a justified trespass has still the nature of trespass, and if the justification ceases or fails or is abused the possession not only becomes wrongful but is deemed to have been wrongful from the first; in the technical phrase the wrongdoer is a trespasser ab initio. It will however be convenient to speak of both possession by title and possession under a justification as rightful, except when it
is necessary to advert to this difference. Both branches of the rule are subject (besides the effects of modern legislation) to exceptions which can be accounted for only by the peculiar history of our criminal law. Wrongful asportation of personal chattels, when accompanied by the wrongful intent described as animus furandi, constitutes the criminal offence of Larceny. The word ‘taking’ is commonly appropriated to personal chattels, but we shall find it convenient to use it now and then in a more general sense.