« EdellinenJatka »
The distinction of movable and immovable seems to be of small importance in itself. Much personal property is as immovable as land, either in a literal sense or in the sense by which we denote a want of complete power over the property. Thus houses on leased land, growing crops, heavy fixed machinery, etc., are actually immovable. Shares in the public funds, or in railroads and other local works, are immovable in so far that the owner cannot at pleasure remove them from under the control of whatever government rules the territory; in this partaking to a most important degree of the peculiarity of real estate. We must then look elsewhere for the basis of a distinction, if one is to be made.
There is nothing in the physical nature of land differing widely from other property. Houses would of course become chattels at once, severed from the soil; but so would the soil itself if displaced. There is no part of a man's land that he may not under some circumstances sever and sell as personal property. The surface soil may be carted off to build a railroad, or enrich other land, and quarries and mines might exhaust all the contents of a close as deep as men could go under the physical conditions, leaving nothing but a hole. Still the hole would remain, and remain the owner's; it would have all the legal qualities of real estate; over that section of the earth's surface he wouldhave the same control as ever.
On the other hand, this very permanency is a limit of the owner's right. He cannot by any means whatever destroy or transmute his property in land. He may destroy houses, and remove, as we have just seen, the physical contents of his close; but he would be obliged to leave the close itself, the section of space, just as he found it. Everything properly embraced within the description of personal property is both movable and perishable. Land is immovable and imperishable. Personal property is at the absolute dis
'posal of the owner. He can use, transport, or destroy. Real property can only be used. It is not the subject of transportation or destruction. The surface of the earth may be changed and occupied for different purposes; it may be forced to yield up portions of its wealth, in mineral and agricultural products, to the hand of man; but the foundation, the thing itself, will remain forever. An individual may hold the right of possession for a period, but in the progress of time he must pass along and leave that right behind him for the enjoyment of others. Hence the rule naturally follows that no person can by any possible arrangement become invested with the absolute ownership of land. . . . . It has therefore become an accepted rule of public law that the absolute and ultimate right of property shall be regarded as vested in the sovereign or corporate power of the state where the land lies, because it is the only one which is certain to survive the generations of men as they pass away." (Bingham on Real Estate, pp. 2, 3.)
From this train of thought, then, we reach a conclusion as to what constitutes the peculiar nature of real estate. Not its immobility merely, but the permanency and unchangeability, of which the immobility is only an outward sign. But in what does the permanency inhere? Not in the earth or rocks of the soil, nor in the houses thereon; all these may be changed and taken away, may be converted into personal chattels and other chattels fixed in their places, and thus converted into real estate. What is permanent is simply the space-the definite part of the earth's surface. That which makes real estate differ from all other kinds of property is that it consists in the owner's control over a certain defined part of the earth on which we dwell. In this respect no other property has anything in common with what lawyers mean by land.
But municipal law treats it as a part not of the earth's
surface in general, but of the national domain-the territory occupied by the state. All its important legal qualities are derived from this relation. The state for its very existence must have a territory-must exercise sovereign power over that territory-must therefore be brought into peculiar relations with all individuals exercising other powers over portions of the same. Here is the cardinal distinction. All other kinds of property may or may not bring its owner into contact with the state. Real property must do so, because both the state and the private owner must control it. It is not necessary for our purpose to enumerate all the points of contact between the two owners. The chief of them are these: (1) As to all foreign nations the state is the owner in chief. It may cede any portion of its domain to a conqueror, and the rights of the private owner will be at the mercy of the latter, except so far as the rights of conquest are controlled by modern laws of war. In other cases any foreign power that wishes to make any use of private land must have permission from the state. The individual owner has no right to transfer his title to a foreign power without the sanction of his own government. Until recently it has been the general rule that he could not even transfer it to the individual subject of a foreign power. (2) The state may take any part of its own territory out of the hands of an individual owner when it pleases, subject only to such restrictions as the state itself imposes by constitution or otherwise. (3) If the land is left without an individual owner, the state must for its own safety and welfare take charge of it. (4) The state must control the owner's use of it so as to prevent its being a nuisance to others.
Beside these necessary points of control, history shows that the ownership of the soil gives the possessor a relation to the state different from and superior to every other kind of property.
CHAPTER THE THIRD.
OF INCORPOREAL HEREDITAMENTS. [See note 8, p. 76.]
* An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same.a It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled : incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses.t And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them.‡ An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the  produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they, being merely a a Co. Litt. 19, 20.
*-* Quoted, 10 Mass. 325; 1 Gill & J. 378.
See 73 Ill. 409.
contingent right, collateral to or issuing out of lands, can never be the object of sense: they are neither capable of being shewn to the eye, nor of being delivered into bodily possession.*
Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.†
I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatío, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned, arose the division of parishes) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron.c
This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and it's
b Vol. I. pag. 112.
c This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 956.9 t. 12. c. 2. Nov. 118. c. 23.
9 The misprint "Nov. 26" in recent editions dates from the ninth edition.
9 Ninth edition inserts here, "springing."
9 Ninth edition reads, "that casual share of the annual increase is not, till severed."
*Cited, 68 N. Y. 555.
+Cited, 6 How. 534; 41 N. H. 498; 1 R. I. 428; 6 Dana, 107; 92 Ill. 428; 38 Ga. 610; 95 Am. Dec. 410.
- Quoted with one omission, 6 Call, 131.