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First, the several sorts. Land.

Subject of In treating of things real, let us consider, first, their several real proper 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 na

ture; being a word of a very extensive signification, as will Tenement.

presently appear more at large. Tenement is a word of still

greater extent, and though in its vulgar acceptation is only ap[ 17 ] plied to houses and other buildings, yet in its original, proper,

and legal sense it signifies every thing that may be holden, provided it be of a permanent 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

that of corporeal hereditaments I think is improper to describe the property they are not properly referable ; for, sought to be recovered as a tenement, though corporeal hereditaments are their unless with reference to a previous more subject, yet, while the rights remain certain description. 1 East, 441; 8 distinct and undivided from the right of East, 357. By the general description actual possession, I see nothing substan- of a messuage, a church may be recortial in their nature, nor do I comprehend ered. 1 Salk., 256. The term close, how they can be considered as invested without stating a name or number of with any degree of corporeality. On acres, is a sufficient description in ejectthe contrary, they seem clearly to fall ment. (11 Coke, 55.). In common acwithin that predicament which I take ceptation it means an 'inclosed field, but to be the criterion of an incorporeal in- in law it rather signifies the separate inheritance-tangi non potest, nec videri.” terest of the party in a particular spot

“ There are also other properties com- of land, whether inclosed or not. (7 mon to them with other estates, which East, 207 ; Doct. and Stud., 30.) If a are universally and expressly arranged in man make a feoffment of a house" with the class of incorporeal inheritances; as, the appurtenances,” nothing passes by for instance, they do not lie in livery, the words with the appurtenances but and, when once created and subsisting the garden, curtilage, and close adjoinas such, can not be transferred without ing to the house, and on which the house deed." (Posthumous Works, p. 8.) is built, and no other land, although

usually occupied with the house ; but (2) The terms lands, tenements, and by a devise of a messuage, without the hereditaments, and other names describ- words “ with the appurtenances," the ing real property, are fully described in garden and curtilage will pass, and, Co. Lit., 4, a, to 6, b. It will be found where the intent is apparent, even other material to attain an accurate knowl- adjacent property. (See 2 Saund., 401, edge of them. An advowson in gross n. 2; 1 B. & Cr., 350; 12 Ad. & E., will not pass by the word “ lands” in a 442; and, further, as to the effect of the will, but it is comprehended under the word “appurtenant," 15 East, 109; 3 term tenements. Hob., 304; Fort., 351; Taunt., 24, 147; 1 B. & P., 53, 55 ; 2 3 Atk., 464; Ca. temp. Talb., 143; 11 T. R., 498, 502; 3 M. & S., 171; 1 Cr. Moore, 139 ; 4 Bing., 297.—[Chitty.] & M., 439; 6 Nev. & M., 282.) The

term farm, though in common accepta (3) As to the term permanent being tion it imports a tract of land with a part of this definition, sce 1 Prest. Est., house, outbuildings, and cultivated land, 10, and H. Chitty on Descents, 11, 12. yet in law, and especially in the descrip-[Cutty.]

tion in an action of ejectment, it signifies

the leasehold interest in the premises, (4) Therefore, in an action of eject- and does not mean a farm in its comment, which, with the exception of tithe mon acceptation. (See post, p. 318.) and commou appurtenant, is only sus- [Chitty.] tainable for a corporeal hereditament, it

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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; and a franchise, 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 Edward Coke,c is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus, an heir-loom, or implement of furniture, which by custom descends to the heir together with a house, is neither land nor tenement, but a mere movable; 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.dk

Hereditaments, then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects 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 Corporeal permanent objects; all of which may be comprehended 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; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth, also, all castles, houses, and other buildings; [ 18 ] for they consist, saith he, of two things: land, which is the foundation, and structure thereupon; so 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 can not 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 a Co. Litt., 6.

c1 Inst., 6. [See 10 M. & W., • Ibid., 19, 20. [See Cro. El., 116; 742.] 1 Leon., 188; 1 Str., 625; Ld. Raym., d 3 Rep., 2. 1384.]

e 1 Inst., 4.

beredita ments.

(5) By a condition is here meant a dition that, if his heir should pay the qualification or restriction annexed to a feoffee 20s., he and his heir should reconveyance of lands, whereby it is pro- enter; this condition would be an hervided that, in case a particular event editament descending on A.'s heir after does or does not happen, or a particular A.'s death ; and if such heir after A.'s act is done or omitted to be done, an es. death should pay the 20s. he would be tate shall commence, be enlarged, or de- entitled to re-enter, and would hold the feated. As an instance of the condition land as if it had descended to him. (Co. here intended, suppose A. to have en- Litt., 201, 214, b.)-[COLERIDGE.] feoffed B. of an acre of ground upon con

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 movable, wandering thing, and must of necessity continue common 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 immovable; and therefore in this I may have a certain, substantial property, of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite extent, upward as well as downward. Cujus est solum, ejus est usque ad cælum, is the maxim of the law, upward; therefore no man may erect any building, or the like, to overhang another man's land; and downward, 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 every thing 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

i Brownl., 142.

(6) See 2 Cr. & J., 156. “If a man prove an actual grant or license from grant aquam suam, the soil shall not the proprietors affected by his operapass, but the pischary [right of fishing] tions, or must prove an uninterrupted within the water passeth therewith.” enjoyment of twenty years." (Co. Litt., 4, b.)

(8) “I recollect a case where I held (7) See 3 B. & Ad., 304; 5 Id., 24; that firing a gun loaded with shot into 2 Nev. & M., 764, adopting tho follow- a field was a breaking of the close. ing words of Sir J. Leach (1 Sim. & St., Would trespass lie for passing through 190): “The right to the use of water the air in a balloon over the land of rests upon clear and settled principles, another ?" Per Lord Ellenborough, 1 Primâ facie the proprietor of each bauk Stark., 58. In the case of mines, custom of a stream is the proprietor of half the has in many places made an exception land covered by the stream; but there to this rule. See Bainbridge on Mines, is no property in the water. Every pro- ch. 2. Of course any portion of the prietor has an equal right to use the space between the center of the earth water which flows in the stream; and, and the sky may be severed from the consequently, no proprietor can have the rest, and be capable of a distinct ownerright to use the water to the prejudice ship.. Thus, a man may bave a several of any other proprietor. Without the inheritance in the upper story of a house, consent of the other proprietors who or in a private box at a theater. (2 may be affected by his operations, no Gale & D., 435.) proprietor can either diminish the

quantity of water which would otherwise (9) Rowe v. Br m, 3 Man. & Ryl., descend to the proprietors below, or 133, 229. But mines of gold and silver throw the water back upon the proprie- and ores containing gold or silver, belong tors above. Every proprietor who claims to the crown, as an appendage to its a right either to throw the water back, prerogative of coining: (Plowd., 339.) above, or to diminish the quantity of The exercise of this right is controlled water which is to descend below, must, by the statutes 1 Will. & M., st. 1, c. in order to maintain his claim, either 20, s. 4, and 5 & 6 W. & M., c. 6, s. 2.

his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass [ 19 ] 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 ;-o but by the name of land, which is nomen generalissimum, every thing terrestrial will pass." & Co. Litt., 4.

b Ibid., 4, 5, 6.

(10) By the name of a castle one or used in such a sense. Thus, where a more manors may be conveyed; and, e conveyance, called a fine, was levied (i. converso, by the name of a manor a cas- e., made) of “twelve messuages, twelve tle may pass.

Inst., 5; 2 Inst., 31.- gardens, twenty acres of land, twenty [Christian.] See 1 Plowd., 168. acres of meadow, twenty acres of past

A messuage may include a garden and ure, five acres of wood, and five acres of curtilage, a dove-house, a mill, or shops. land covered with water, in a certain (Plowd., 171; 5 T. R., 48.) “When parish;" and the party who levied the land is built upon, it is a messuage, and fine was proved to be seized of two esif the building afterward fall to decay, tates in that parish, one of which conyet it shall not have the name of land, tained twelve messuages, and land, &c., although there be nothing in substance sufficient to satisfy the description in the left but the land, but it shall be called a fine, while upon the other estate were toft, which is a name superior to land seven other messuages; it was decided and inferior to messuage; and this name that the fine did not pass those seven it shall have in respect of the dignity messuages. Chief-justice Abbott, in dewhich it once bore.” (Plowd., 170.) livering judgment, said, “The term land A croft is an inclosed piece of land near may, for the purpose of the present case, to a messuage.

be allowed to be capable sometimes,

and according to some senses of it, of (11) See 12 J. B. Moore, 296. A passing land with houses upon it. No gross name may contain divers things body will doubt that if the word • land' corporeal, as a manor, monastery, rec- merely is used, without any qualificatory, castle, honor, and the like, are tion, it would be sufficient to pass meadthings compound, and may contain al- ow and pasture land, and land covered together messuages, lands, meadows, with water; but where we find that in woods, and such like; and a thing cor- this instrument twelve messuages are poreal may be parcel of a gross name mentioned; and where we find, also, not and of a thing compound; but one sim- merely that twenty acres of land are ple thing corporeal can not be parcel of mentioned, but also twenty acres of or appurtenant to another simple thing meadow, twenty acres of pasture, five corporeal ; as, land can not be parcel of acres of wood, and five acres of land cov. or appartenant to meadow, nor meadow ered with water, it is impossible not to parcel of or appartenant to pasture, nor see that the term land was not intended pasture parcel of or appurtenant to wood; to comprise meadow and pasture; à nor can land be parcel of or appurtenant multo fortiori, we must say, that it was to a messuage, nor to any other thing intended not to pass houses. That becorporeal." (Plowd., 170.).

ing, in my opinion, the true construction Although the words mentioned in the of the instrument, and that the fine is text, standing unexplained and uncon- capable of passing twelve houses, and no trolled, have the general meanings there more, the parol evidence was necessarily attributed to them, they are often inter- admitted to show what were the twelve preted in a more extended or a more houses which were intended to pass. contracted sense, where the context and That was a question of fact to be dethe circumstances of the case clearly cided by the jury upon the evidence.” point out that they were intended to be (8 Dowi. & Ryl., 549.)

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CHAPTER III.

OF INCORPOREAL HEREDITAMENTS.

Incorporeal An incorporeal hereditament is a right issuing out of a thing heredita

corporate (whether real or personal), or concerning, or anment defined. nexed to, or exercisable 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. 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 can not be de[ 21 ] livered 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 contingent, springing right, collateral to or issuing out of lands, can never be the object of sense: that casual share of the annual increase is not, till severed, capable of being shown to the eye, nor of being delivered

into bodily possession. Are of ten

Incorporeal hereditaments are principally of ten sorts: adsorts.

& Co. Litt., 19, 20.

(1) Not necessarily, as in the case of left no property or assets for the payment an annuity granted by one person to of it; and so indirectly it would be charg. another and his heirs, and not charged ed on property. Offices and dignities on any property. (Co. Litt., 20, 144, are also examples of incorporeal hereditb; 2 Ves. sen., 179.) It is true, that aments which do not issue out of any (where the annuity was not granted by thing corporate ; but, though so called, the crown or other corporation (2 Ves. they seem scarcely to partake of the nasen., 170)), after the death of the grant ture of property. (See 1 J. B. Moore, or, the annuity would cease, so far as he 353.)

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