Sivut kuvina

solum, ejus est usque ad cœlum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line between the surface of any land and the center of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but everything under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are [19] equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing; ¶ but the capital distinction is this; that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, everything terrestrial will pass.h


g Co. Litt. 4.

h Ibid. 4, 5, 6.

- Quoted, 4 Colo. 114; but under Act of Congress of July 26, 1866, this rule does not apply to lode mining claim.

- Quoted, 33 Ind. 403; 5 Heisk. 479. Cited, 9 Conn. 378; 23 Am. Dec. 362; 8 Ired. 284; 49 Am. Dec. 381; 2 Pa. St. 128.

- Quoted, 73 Ill. 409; 3 Dev. 390. Cited as to minerals, 6 Wis. 348; 68 Wis. 352.

Contra, 2 N. H. 255, 259. Cited, 8 Conn. 374; 23 Am. Dec. 362; 1 Wend. 255; 19 Am. Dec. 496; 12 N. J. Eq. 552.

**Cited as to crops, 1 Denio, 554; as to trees, 48 N. Y. 203; as to buildings, 8 Conn. 384; 23 Am. Dec. 362; 1 Har. (N. J.) 213; 31 Am. Dec. 235; 1 W. Va. 120; generally, 10 Mass. 325; 43 Md. 347; 33 Miss. 464.


(7) Things real are such as are permanent, fixed, and immovable. . . . things personal are goods, money, and all other movables, page 16.

Is the distinction between real and personal property a natural and essential one, or is it merely the creature of positive law? Mr. Austin (Lectures on Jurisprudence, I. 59, 60) and some other recent writers take the latter view, and even call it "needless and accidental." But it is evident that property in land differs from any other kind of property. It is the control of a certain portion of the earth's surface (or of the nation's territory) without reference to the physical substance occupying the space. We may remove the buildings, the soil itself, the strata under the soil, and they cease to be real property and become personal. But the space itself remains, and is still our close. We cannot remove or change it. We cannot destroy it as we can all other property. However complete our ownership may be by the law, nature has fixed limits to it that belong to no other kind of property. Moreover real property must necessarily be held subject to the rights of the state. Every nation must for its own existence as such have a territory and be lord paramount of that territory. Each individual proprietor must hold all his rights subject to the rights of the state: for it is on the power of the state to maintain its own territorial existence that his title depends. (United States v. Repentigny, 5 Wall. 211.)

In England (where out of twenty million inhabitants only thirty to thirty-five thousand own a foot of the soil, and the number is constantly diminishing, while that of the landless increases) the practical enforcement of the state's rights is fast becoming a question of intense interest, though it addresses itself more directly to legislators and economists than to practicing lawyers. Many thinking men are disposed to advocate the theory

that the state is, as a matter of necessity, the only proprietor of the soil, and that individual rights are and must always be subordinate. An able statement of this view is in an article on "The Tenure of Land." (West. Rev. July, 1864. See, also, J. S. Mill's Principles of Political Economy. Yet Mr. Mill quotes, apparently with approbation, Austin's attack "on the darkening distinction between real and personal property a distinction which has no foundation in the philosophy of law, but solely in its history, and which Austin emphatically characterizes as a cause of complexness, disorder, and darkness, which nothing but the extirpation of the distinction can thoroughly cure." [Ed. Rev. Oct. 1863, p. 226, note.] This illustrates the disregard of all connection between law and life common alike to legal and lay writers.)

"Landed property is felt even by those most tenacious of its rights to be a different thing from other property, and where the bulk of the community have been disinherited of their share of it, and it has become the exclusive attribute of a small minority, men have generally tried to reconcile it to their sense of justice by endeavoring to attach duties to it, and erecting it into a sort of magistracy, either moral or legal. But if the state is at liberty to treat the possessors of land as public functionaries, it is only going one step further to say that it is at liberty to discard them. The claim of the land-owners to the land is altogether subordinate to the general policy of the state. The principle of property gives them no right to the land, but only a right to compensation for whatever portion of their interest in the land it may be the policy of the state to deprive them of." (Prin. of Pol. Econ. i. p. 285.) "To me it seems almost an axiom that property in land should be interpreted strictly, and that the balance in all cases of doubt should incline against the proprietor. The reverse is the case with the property in movables,

and in all things the product of labor; over these the owner's power, both of use and exclusion, should be absolute, except where positive evil to society would result from it; but in the case of land no exclusive right should be permitted in any individual which cannot be shown to be productive of positive good. To be allowed any exclusive right at all over any portion of the common inheritance, while there are others who have no portion is already a privilege. No quantity of movable goods which a person can acquire by his labor prevents others from acquiring the like by the same means; but from the very nature of the case, whoever owns land keeps it from somebody else." (Prin. of Pol. Econ. i. p. 287.)

The general tendency of our law at present, especially in the western states, is to do away with all distinction, and regard individual ownership of real estate as precisely of the same character with personal. "We in general own our land in simple absoluteness, and need not talk of allodium, or free and common socage." (Per Woodward, J., in Pierson v. Armstrong, 1 Iowa, 294.) Yet there is unquestionably a distinction in the nature of things between the two. The community as a whole has a right of control over the territory as a whole very different from any it possesses over the personal fortunes of its citizens. It must have this for its safety; it cannot help having it, so far as other nations are concerned. Each individual proprietor of land must hold all his rights subject to the rights of the state. No matter what may be the changing forms under which these paramount rights may appear, we find them always existing and founded in the very nature of the case. The common ownership of the early Saxons and other Germanic tribes, the feudal tenures of the middle ages, the eminent domain of modern law, are only so many varying expressions of a single principle. Real property law is now often treated as if it related only to individual estates, but this is an

arbitrary division of the subject. We cannot fully discuss the rules of law relating to a piece of land to-day without taking account of those which regulate the action of government in taxing it, forfeiting it, confiscating it to its own use, etc. We cannot even define accurately the rights of the individual owner without studying the same rules, which give and limit to the body politic rights as substantial and valuable as those held by a feudal lord-rights in some respects more arbitrary than any feudal lord ever claimed.

The power of the sovereign over the land of the country, and the dependence of all private titles upon that, are stated in the most forcible terms in Forsyth's Cases on C. L. p. 14, quoting Lord Mansfield in Campbell v. Hall, Cowp. 209; 20 St. Tr. 323. And see Smith v. Brown, 2 Salk. 666. The same expressions will be found in many American cases on the right of eminent domain. It is only when private property in land is the subject of discussion that this element seems forgotten.

Some of our recent jurists treat the distinction of land and chattels, or realty and personalty (in the English sense), as an unlucky attempt to express the scientific difference between res mobiles, immobiles, which they regard as the original or natural classification. (Amos, Systematic View, p. 131, et seq.; 2 Austin, Lecture xlvi, pp. 804, 805; Holland on Jurisprudence, pp. 135, 136.) But the distinction between mobilia, immobilia, was certainly not a primitive one in the Roman law. It is due to the classic jurists (Gaius, ii. 42; Ulpian, xix. 8; Dig. ii. 8, 15; Code, i. 2, 14, pr.), and even they use res soli oftener I think than res immobiles. Besides, they introduce a third term, se moventia, not having any counterpart in our classification. There is no evidence of any early use of motion as a criterion of legal qualities in the Roman more than in the English law. We find traces of it in the forms of writs (F. N. B. 88 B); but no rules of law based upon it.

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