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Hereditaments are of two kinds, corporeal and incorporeal.

the benefit of which may descend to a man from his ancestor, is also an hereditament (d).

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal (6). Corporeal con

(d) 3 Rep. 2.

(6) Mr. Fearne, in his learned "Read- tion of hereditaments, not from the ing on the Statute of Inrolments,” (27 things themselves, but from the inheHen. VIII. c. 16), observes, " the word ritable rights of which they are the subhereditaments, in our law, though ap- ject: for riglıts are of an incorporeal plicable both to real and to personal nature. Incorporeal hereditaments property, applies to the two species of therefore comprise the two divisions of things in a different mode or degree of mixed and personal hereditaments alrelation. When applied to things real, ready noticed, and under the same deit generally denotes the things them- scription I would include such real heselves which are the subjects of proper. reditaments as consist of rights to the ty, without regard to the nature or ex- future enjoyment of lands, divided from tent of property therein; but when used the present possession; for though corin relation to personal things, the word poreal hereditaments are their subject, kereditaments does not import or signi- yet, whilst the rights remain distinct fy the things themselves, but is only from the right of actual possession, I applicable to them in respect of some see nothing substantial in their nature; inheritable right, of which they are in on the contrary, they seem clearly to some mode or other the subject. Of a fall within that predicament which I nature in some measure intermediate take to be the criterion of an incorporeal between the two already noticed, there inheritance, tangi non potest, nec videri. is a third application of the word here. There are also other properties common ditaments, wherein it is used to denote to them with other estates, which are inheritable rights respecting lands, or universally arranged in the class of insomething issuing therefrom, or exer- corporeal inheritances; for instance, eisable therein, or having at least some they do not lie in livery, and cannot local connection or relation separate and be transferred without deed, except in distinct from the enjoyment of the lands some special instances, similar to some themselves. Hence we obtain the di- of those in which corporeal inheritances vision of hereditaments into real, pero may be passed at common law, without sonal, and mixed. Besides this distri- livery of seisin.” bution, there is another general division It is proper to add, that one of the of hereditaments into corporeal and in- opinions held by Mr. Fearne in the corporeal. The first description is con- work from which the above quotations fined to those subjects of property which are taken, has been controverted; (in are comprised under the denomination 2 Prest. on Abst. 85, in 2 Saund. on of things real. Incorporeal heredita- Uses, 38, and in Sugden's note to Gilb. ments are such as derive the denomina. on Uses, 226); the objection, however,

“ land.”

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 Corporeal hereand permanent objects; all which may be comprehended ditaments con

of under the general denomination of land only. For land, substantial and says Sir Edward Coke (e), comprehendeth in its legal sig- jects.

permanent obnification any ground, soil, or earth whatsoever (7); as arable, 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; What is com

prehended in land, which is the foundation, and structure thereupon: so the term that, if I convey the land or ground, the structure or ing 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 by the law of nature; so that I can only have a temporary, transient, usu(e) 1 Inst. 4.

(S) Brown). 142.


does not at all apply to any of the pas- strictly taken, only signifies arable land. sages here cited.

For in every antient præcipe we conMr. Fearne's criterion of an incorpo- stantly find the words, terra, pratum, real hereditament, he adopted from Lord et pastura-land, meadow, and pasture. Coke's 1st Instit. 9 a.. And see our au- (And see Silly V. Silly, 1 Vent. 260.) thor's account of the same subject, in But this confined meaning of the word the chapter next following.

land was only adopted when used in (7) Mr. Cruise, (in his Dig. 4, tit. 32, a præcipe in an adversary suit.” ch. 20, p. 321), says, " the word land,


fructuary, 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 per-
manent, fixed, and immoveable: and therefore in this I
have a certain substantial property; of which the law will

take notice, and not of the other, Extent of its Land hath also, in its legal signification, an indefinite legal significa- extent, upwards as well as downwards. Cujus est solum,

ejus est usque ad cælum, 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 centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries (8). So that

(8) The passage in the text requires 336). From the same čase it may also a little qualification. The result of be collected, that, if in a grant of an esexperience in the mining countries is tate by the Crown there be a bare renot uniform. In Curtis v. Daniel, servation of royal mines, without any 10 East, 274, Bayley, J., held, that, proviso for right of entry, (which would " although the presumption of law, ge- be essential in the case of a private innerally speaking, is that all mines un- dividual), it is competent to the Crown der freehold belong to the freeholder, to grant a licence to any person to in Cornwall it might be otherwise as to come upon the estate so granted, and tin mines, which are governed by pe- dig up the soil in search of such mines. culiar laws and customs." On a mo- Lord Hardwicke, it is true, (in Lyddal tion for a new trial, Lord Ellenborough, v. Weston, 2 Atk. 20), held a contrary C. J., asked, “Why may there not be doctrine; but Lord Eldon (in Seaman two customs, one for the lord of the v. Vawdrey, 16 Ves. 393), repudiated manor to have the tin, and another for Lord Hardwicke's attempt to unsettle the tenants to have the copper under what had been resolved by the twelve their estates?" And it is perfectly well Judges, in the case in Plowden. established, that, all mines of gold and The freehold of customary lands, and silver within the realm, though in the lands held by copy of court roll, is in lands of subjects, belong to the Crown the lord of the manor. In such lands, by prerogative, with liberty to dig and unless the act be authorized by special carry away the ores thereof, and with custom, (Whitchurch v. Holworthy, 19 all other such incidents thereto as are Ves. 214. S. C. 4 Mau. & Sel. 340), it necessary to be used for getting the ore. is neither lawful for the customary ten(The Queen and The Earl of Northum- ant, or copyholder, to dig and open new berland, in the case of Mines, Plowd. mines, without the licence of the lord

the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a

of the manor; nor for the lord, without subject are discussed). The right to the consent of the tenant, to open new mines may be distinct from the right mines under the lands occupied by such to the soil. In cases of copyholds, a tenant. (Bishop of Winchester v. Knight, lord may have a right under the soil of 1 P. Wms. 408. And see, as to the late the copyholder: but where the soil is ter point, the opinion of two Judges in the lord, all is resolvable into the against one, in the Lord of Rutland v. ownership of the soil, and a grant of Greene, 1 Keble, 557, and infra). The the soil will pass every thing under it. acts which a lord of a manor may do (Townley v. Gibson, 2 T. R. 705). by custom, to enable him profitably to It seems, then, that royal mines do work mines, previously opened, under not belong to the owner of the surface: lands which are parcel of his manor, that with respect to other minerals, even must not be unreasonably oppressive under freehold land, “every day's exupon the occupier of the lands, or the perience in the mining countries” is custom cannot be maintained. (Wilkes not uniform: and that as to mines unv. Broadbent, i Wils. 64). And the der customary or copyhold lands, nei. lord of a manor cannot open new mines ther the lord of the manor, who has upon copyhold lands within the manor, the freehold, nor the tenant who has the without a special custom or reservation; enjoyment of the surface, can open fresh for the effect might be a disinherison mines, without a special custom or exof the whole estate of the copyholder. press compact. The lord of the manor The lord of a manor may be in the same has, indeed, in a certain sense, the prosituation with respect to mines as with perty in such mines; but if the estate respect to trees: that is, the property of the customary or copyhold tenant of may be in him, but it does not follow the surface be an estate of inheritance, that he can enter and take it. The the lord may never be able to make his lord must exercise a privilege over the qualified property in the mines availcopyholder's estate, if during the con- able, except by purchasing the right to tinuance of the copyhold he works work them. This may, perhaps, serve mines under it; and a custom or reser- to explain the dictum in Lord Cullen's vation should be shewn to authorize case, (2 Str. 1142), that " mines are a such a privilege: but as soon as the distinct possession, and may be different copyhold is at an end, the surface will inheritances." be the lord's as well as the minerals, If the owner of a fee grants, by inand he will have to work upon nothing denture, liberty to dig for minerals but his own property. (Grey v. The throughout certain lands therein deDuke of Northumberland, 13 Ves. 237. scribed, and to raise and dispose of the 17 Ves. 282; and S. P., at law, under same for their own use, and to make the title of Bourne v. Taylor, 10 East, adits necessary for the exercise of that 205, where all the leading cases on the liberty, habendum for twenty-one years:


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 *equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing (g) (9): but the capital distinction is this, that by the name of a castle †,

[ *19 ]

(8) Co. Litt. 4.


this deed operates as a licence only that, however indisputable it may be, and not as a demise of the metals and that, by a grant of waters, nothing passes minerals, so as to vest in the lessee a but a right of fishing therein; it is not legal estate therein during the term. equally well settled, whether, by grant By such a deed, the grantor does not of a several piscary, the soil does, or part with all the ores then existing with- does not pass. Lord Coke observes, in the land, but such parts thereof only (1 Inst. 5 b), “ by grant of a vivarye, as should, under the power given to not only the privilege, but the land itsearch and get, be found within the de- self passes.” And, in his note on the scribed limits, which is nothing more 11th chapter of the statute of Merton, than a licence to search and get, with (2 Inst. 100,) he says, Vivarium is a a grant of such of the ore only as should word of large extent. Most commonly be found and got, the grantor parting in law it signifieth parks, warrens, and with no estate or interest in the rest. pischaries or fishings; here it is taken The grantee, therefore, has no estate or for warrens and fishings.” Probably, property in the land itself, or in any the term vivarye is most correctly appart of the minerals ungot therein; he plied to places in which animals that has a right of property only as to such have been deprived of the full liberty part thereof, as upon the liberties grant of their natural state are preserved; ed to him should be dug and got. This and, where fishes are the subjects, a is no more than a right to a mere per vivarye may only mean an inclosed sonal chattel, being very different from fish-pond, or stew, not an open stream. a grant or demise of the mines, or mine- + By the name of a castle, one or rals, in the land. (Doe v. Wood, 2 Barn. more manors may be conveyed; and & Ald. 736). In the case just cited, it e converso, by the name of a manor, a was held, that, under the circumstances castle may pass. 1 Inst. 5. 2 Inst. 31.stated in that case, the grantee could Ch. “ Land may be parcel of a castle ; not maintain an action of ejectment. castle, honour, and the like, are things

(9) The different rights of free fish- compound, and may comprise messuaery, several fishery, and common of ges, lands, meadows, woods, and such piscary, are enlarged upon, post, in the like.” (IIill v. Grange, 1 Plowd. 168. 7th section of the next chapter, and the 170).-Ed. notes thereto. It will there be


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