266Property Law

control of a container, you must also be in physical control of its contents. However, complications can arise where the possessor of the container (which might be a box, or a locked room, or an area of land) is unaware of either the existence of its contents or their precise nature: see R. v. Cavendish [1961] 2 All ER 856, CA, and R. v. Warner [1969] 2 AC 256 (both extracted at www.cambridge.org/propertylaw/). Also, there can be difficulties where others have access to the ‘container’. We look at this point again in Chapter 11 in the context of the ‘finding’ cases, where we consider the relative claims to lost and abandoned goods that can be made by those who find and take possession of them, and those with freehold and leasehold interests in the land on (or in) which the goods are found. As will be seen in Chapter 11, the law has become considerably confused by a failure to appreciate that it is possession that forms the basis of any claim by finders and landowners.

7.1.3.2. Intention required

Intention to exclude

The difficulty of divorcing the acts said to constitute possession from the intention with which those acts were performed has already been noted. What then precisely is the intention required? It has been said that there must be an intention ‘in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow’ (Slade J in Powell v. McFarlane, extracted at www.cambridge.org/propertylaw/). It is important to clarify what is not required. First, it does not matter that the acts of possession were performed in the mistaken belief that the actor was owner. Ex hypothesi, such a person can have no intention to exclude the true owner. He does, however, have the intention to exclude the whole world, and that is all that is required. Those who take possession in the mistaken belief that they are entitled to do so are as much in possession as those who consciously take as trespassers (Lodge v. Wakefield Metropolitan Borough Council [1995] 38 EG 136, CA). Secondly, it is not necessary that the person assumed control with the intention of acquiring or assuming ownership: what is at issue here is possession (i.e. exclusive physical control).

However, this still leaves us with difficulties. Must the possessor’s intention be to exclude the whole world for ever, or is it sufficient that he intends to do so only for a limited time or until some future event occurs? Suppose, for example, a person enters into possession mistakenly believing that the paper owner has granted him a lease of the land in question. Is his possession adverse as against the paper owner? Or take the position of a person who consciously takes over land as a trespasser, knowing that the true owner will not be using the land until some future event occurs (the true owner might be serving a long prison sentence, or have bought the land for road widening purposes and have no use for it until the road is to be built). Assume also that the trespasser knows that she is likely to be evicted by the true owner when that future event occurs. Is the trespasser in