16 CHAPTER II. OF REAL PROPERTY; AND, FIRST, OF CORPO- THE objects of dominion or property are things, as contra- The objects of distinguished from persons: and things are by the law of property. England distributed into two kinds; things real and things personal. Things real are such as are permanent (1), fixed, Real. and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, Personal. and all other moveables; which may attend the owner's person wherever he thinks proper to go (2). (1) Mr. Preston, referring to the passage in the text, says, "In the language of Mr. Justice Blackstone, nothing is a tenement which is not of a permanent nature. The term, whether applied to the subject or the interest therein, is equally vague; perhaps it is not too much to add, erro neous. A rent-charge is not, in any respect, necessarily more permanent than an annuity; yet one is a tenement, and the other is not. (See post, p. 113, n.) These contrasted examples prove, that the epithet may be omitted, and that the definition which excludes it will, if not more certain and precise, be at least open to less objection." (Essay on Est., part 1, p. 10.) See post, p. 40, n. and Vol. III. c. 10, p. 167. (2) When he comes to the 24th chapter of this volume, (p. 385,) the reader will be taught, by Blackstone himself, that the definition of things Things real are Lands, In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it. First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification (3), as will presently appear more at large. Tenement is a word of still greater extent, and though in its vul[*17 ] gar acceptation it is only applied to houses and other Tenements, buildings, yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent (4) nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like (a): and, as lands and houses are tenements, so is an advowson a tenement (5); and a fran(a) Co. Litt. 6. The latter, only, it will be seen, come tainly was cited, without any expression of disapprobation, in Pocock v. The Bishop of Lincoln, 3 Bro. & B. 47; 6 Moo. 177; and in Kensey v. Langham, Ca. t. Talb.144, Lord Chancellor Talbot said, "he was not clear that the word tenement did extend to such incorporeal hereditaments advowsons:" but his Lordship by no means gave a decisive opinion on the subject; on the contrary, he said, "he did not think it necesary to enter into it at that time." The true as (3) Whatever may be the subject of a feoffment, and lies in livery, is a corporeal hereditament, in other words, land. (Prest. on Est. 1, p. 8, ground, however, on which the judgciting Shep. Touch. 202, 209.) (4) See note (1) to last page. ment in Kensey v. Langham proceeded, was, that the advowson did not pass, under the words of the will in that case, only because what was given to the trustees was given to raise money, and none could be raised from a void church. This is so stated in the recent case of Gully v. The Bishop of Exeter, 4 Bing. 297, in which all the previous leading authorities are ments, which clude the two whatsoever may whether corpo chise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements (b). But an hereditament, says Sir and HereditaEdward Coke (c), is by much the largest and most compre- not only inhensive expression; for it includes not only lands and tene- former, but also ments, but whatsoever may be inherited, be it corporeal, or be inherited, incorporeal, real, personal, or mixed. Thus, an heir-loom, real, or incoror implement of furniture, which by custom descends to the sonal, or mixed. heir together with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament (d). Hereditaments then, to use the largest of two kinds, corporeal and incorporeal (6). considered; and, by the result, it seems to be satisfactorily established, that an advowson in gross will pass in a will under the word tenement: it follows, à fortiori, that an advowson appendant to a manor lies strictly in tenure. The extra-judicial dictum in Hopewell v. Ackland, and the equally unnecessary declaration of uncertainty upon the subject expressed in Kensey v. Langham, cannot have any weight when opposed to the numberless cases (many of which are adverted to in Rennell v. The Bishop of Lincoln, 3 Bing. 233; 11 Moo. 139; 7 Barn. & Cress. 147; 9 Dowl. & R. 813;) in which parties are judicially declared to be seised as in fee, or in tail, of an advowson for "seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure." (Per Lord Mansfield, in Taylor on dem. Atkyns v. Horde, 1 Bur. 107). Till the church becomes void, it is impossible, certainly, to acquire any thing more than a seisin in law of an advowson; but presentation to the church, when it is void, is allowed to be equivalent to a corporeal seisin of the land. (1 Inst. 29 a.) An advowson, poreal, real, per expression, are Hereditaments Corporeal con- corporeal and (d) 3 Rep. 2. then, is a tenement, of which seisin 66 (6) Mr. Fearne, in his learned "Reading on the Statute of Inrol-ments," (27 Hen. VIII. c. 16.) observes, the word hereditaments, in our law, though applicable both to real and to personal property, applies to the two species of things in a different mode or degree of relation. When applied to things real, it generally denotes the things themselves which are the subjects of property, without regard to the nature or extent of property therein; but when used in relation to personal things, the word hereditaments does not import or signify the things themselves, but is only applicable to them in respect of some inheritable right, of which they are in some mode or other the subject. Of are of two kinds, incorporeal. Corporeal hereditaments consist wholly of substantial and sist of such as affect the senses; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended permanent ob- under the general denomination of land only. For land, says Sir Edward Coke (e), comprehendeth in its legal signification any ground, soil, or earth whatsoever (7); as arable, jeets. (e) 1 Inst. 4. a nature in some measure intermediate between the two already noticed, there is a third application of the word hereditaments, wherein it is used to denote inheritable rights respecting lands, or something issuing therefrom, or exercisable therein, or having at least some local connexion or relation separate and distinct from the enjoyment of the lands themselves. Hence we obtain the division of hereditaments into real, personal, and mixed. Besides this distribution, there is another general division of hereditaments into corporeal and incorporeal. The first description is confined to those subjects of property which are comprised under the denomination of things real. Incorporeal hereditaments are such as derive the denomination of hereditaments, not from the things themselves, but from the inheritable rights of which they are the subject for rights are of an incorporeal nature. Incorporeal hereditaments therefore comprise the two divisions of mixed and personal hereditaments already noticed, and under the same description I would include such real hereditaments as consist of rights to the future enjoyment of lands, divided from the present possession; for though corporeal hereditaments are their subject, yet, whilst the rights remain distinct from the right of actual possession, I see nothing sub stantial in their nature; on the contrary, they seem clearly to fall within that predicament which I take to be the criterion of an incorporeal inheritance, tangi non potest, nec videri. There are also other properties common to them with other estates, which are universally arranged in the class of incorporeal inheritances; for instance, they do not lie in livery, and cannot be transferred without deed, except in some special instances, similar to some of those in which corporeal inheritances may be passed at common law, without livery of seisin." It is proper to add, that one of the opinions held by Mr. Fearne in the work from which the above quotations are taken, and where he laid it down that attornment was necessary to perfect a grant of a reversion, in hereditaments, has been clearly refuted (in 2 Prest. on Abst. 85, in 2 Saund. on Uses, 38, and in Sugden's note to Gilb. on Uses, 226); the objection, however, does not at all apply to any of the passages here cited. Mr. Fearne's criterion of an incorporeal hereditament, he adopted from Lord Coke's 1st Instit. 9 a. And see our author's account of the same subject, in the chapter next following, p. 20. (7) Mr. Cruise, (in his Dig. 4, tit. 32, ch. 20, p. 321,) says, "the word land, strictly taken, only signifies ara le land. For in every antient præcipe What is com the term meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, *houses, and [ *18 ] other buildings; for they consist, saith he, of two things; prehended in land, which is the foundation, and structure thereupon: soland." that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water (f). For water is a moveable wandering thing, and must of necessity continue common (8) by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other. (f) Brownl. 142. we constantly find the words terra, pratum, et pastura-land, meadow, and pasture. (And see Silly v. Silly, 1 Vent. 260.) But this confined meaning of the word land was only adopted when used in a præcipe in an adversary suit.” (8) See ante, p. 14, and post, p. 395. In Mason v. Wilson, 5 Barn. & Adol. 24, and 2 Nev & Man. 764. C. J. Denman said, "the Roman law considered running water, not as a bonum vacans, but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that parti cular portion which he might have ab- |