CHAPTER II. OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS. and al. into real THE objects of dominion or property are things, as contra- Things dividistinguished from persons; and things are by the law of En- and person gland distributed into two kinds: things real and things personal. Things real are such as are permanent, fixed, and immovable, which can not be carried out of their place, as lands and tenements: things personal are goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go." (1) But there may, by the law of England, be estates or interests of a personal nature, although in immovable things. Such are estates for years in land, which have at common law all the incidents of personal property; see p. 385. Mr. Ferne, after noticing the distinction between things real and things personal, says, "Now the word hereditaments in our law is applicable to both these species of things, but in a different mode or degree of relation; for when applied to the first, viz., things real, it generally denotes the things themselves, which are the subject of property, without regard to the nature or extent of property therein. Thus things real, that is, land in all the extent of the above definition of them, are distinguished by the denomination of hereditaments real; but the word hereditaments, when used in relation to personal things, does not impart 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, and, in this sense, inheritable rights relative to personal things only, and distinct from any local connection, are called hereditaments personal. "Of a nature in some measure intermediate between the two already noticed, there is a third application of the word hereditaments, when it is used to denote inheritable rights respecting lands, or something issuing therefrom, or exercisable thereon, or at least having some local connection or relation separate and distinct from the enjoyment of the lands themselves. Inheritable rights of this description are termed hereditaments VOL. II.-B mixed, from their local relation on the one hand, and the personal perception, enjoyment, or exercise of them on the other. Hence we obtain the division of hereditaments into real, mixed, and personal." "Besides the distribution of hereditaments into real, mixed, and personal, there is another general division of them into corporeal and incorporeal, material to be attended to in this place. Corporeal hereditaments are such as are of à substantial corporeal nature. This denomination, therefore, is confined to those subjects of property which are comprised under the denomination of things real, as before mentioned. Incorporeal hereditaments are such as derive the denomination of hereditaments not from the things themselves, which are the subjects of the enjoyment, but from the inheritable rights of which they are the subject; for rights are of an incorporeal nature, and exist merely in the power and exercise of enjoyment. Incorporeal hereditaments, therefore, comprise the two divisions of mixed and personal hereditaments already noticed; and under the same denomination I would, in this place, be understood to include such real hereditaments as consist of rights to the future enjoyment of lands, divided from the immediate present possession; for though I do not recollect that remainders or reversions are any where expressly ranked under the division of incorporeal hereditaments, yet, unless we deny them to be hereditaments, our division must be defective if they are not comprised under the one or the other branch of it-and to 17 Subject of real property divided. First, the several Borts. 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.2 Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will Tenement. presently appear more at large. Tenement is a word of still Land. 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 permanent3 nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, lib-, erum tenementum, frank tenement, or freehold, is applicable not that of corporeal hereditaments I think they are not properly referable; for, though corporeal hereditaments are their subject, yet, while the rights remain distinct and undivided from the right of. actual possession, I see nothing substantial in their nature, nor do I comprehend how they can be considered as invested with any degree of corporeality. 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 and expressly arranged in the class of incorporeal inheritances; as, for instance, they do not lie in livery, and, when once created and subsisting as such, can not be transferred without deed." (Posthumous Works, p. 8.) (2) The terms lands, tenements, and hereditaments, and other names describing real property, are fully described in Co. Lit., 4, a, to 6, b. It will be found material to attain an accurate knowledge of them. An advowson in gross will not pass by the word "lands" in a will, but it is comprehended under the term tenements. Hob., 304; Fort., 351; 3 Atk., 464; Ca. temp. Talb., 143; 11 Moore, 139; 4 Bing., 297.-[CHITTY.] (3) As to the term permanent being part of this definition, see 1 Prest. Est., 10, and H. Chitty on Descents, 11, 12. -[CHITTY.] (4) Therefore, in an action of ejectment, which, with the exception of tithe and common appurtenant, is only sustainable for a corporeal hereditament, it is improper to describe the property sought to be recovered as a tenement, unless with reference to a previous more certain description. 1 East, 441; 8 East, 357 By the general description of a messuage, a church may be recov ered. 1 Salk., 256. The term close, without stating a name or number of acres, is a sufficient description in ejectment. (11 Coke, 55.) In common acceptation it means an inclosed field, but in law it rather signifies the separate interest of the party in a particular spot of land, whether inclosed or not. (7 East, 207; Doct. and Stud., 30.) If a man make a feoffment of a house “with the appurtenances," nothing passes by the words with the appurtenances but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words "with the appurtenances," the garden and curtilage will pass, and, where the intent is apparent, even other adjacent property. (See 2 Saund., 401, n. 2; 1 B. & Cr., 350; 12 Ad. & E., 442; and, further, as to the effect of the word "appurtenant," 15 East, 109; 3 Taunt., 24, 147; 1 B. & P., 53, 55 2 T. R., 498, 502; 3 M. & S., 171; 1 Cr. & M., 439; 6 Nev. & M., 282.) The tion it imports a tract of land with a term farm, though in common acceptahouse, outbuildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. (See post, p. 318.)— [CHITTY.] 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 of fice, 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, 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.d5 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. heredita ments. 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, 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 c 1 Inst., 6. [See 10 M. & W., a Co. Litt., 6. b Ibid., 19, 20. [See Cro. El., 116; 1 Leon., 188; 1 Str., 625; Ld. Raym., 1384.] (5) By a condition is here meant a qualification or restriction annexed to a conveyance of lands, whereby it is provided that, in case a particular event does or does not happen, or a particular act is done or omitted to be done, an estate shall commence, be enlarged, or defeated. As an instance of the condition here intended, suppose A. to have enfeoffed B. of an acre of ground upon con 742.] d 3 Rep., 2. e 1 Inst., 4. dition that, if his heir should pay the 6 acres of water; or by general description, as for a pond, a wa tercourse, 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. 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 cœlum, 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 centre 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 f Brownl., 142. 8 (6) See 2 Cr. & J., 156. "If a man grant aquam suam, the soil shall not pass, but the piscary [right of fishing] within the water passeth therewith." (Co. Litt., 4, b.) (7) See 3 B. & Ad., 304; 5 Id., 24; 2 Nev. & M., 764, adopting the following words of Sir J. Leach (1 Sim. & St., 190): "The right to the use of water rests upon clear and settled principles. Prima facie the proprietor of each bank of a stream is the proprietor of half the land covered by the stream; but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above. Every proprietor who claims a right either to throw the water back, above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years." (8) "I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close. Would trespass lie for passing through the air in a balloon over the land of another?" Per Lord Ellenborough, 1 Stark., 58. In the case of mines, custom has in many places made an exception to this rule. See Bainbridge on Mines, ch. 2. Of course any portion of the space between the centre of the earth and the sky may be severed from the rest, and be capable of a distinct ownership. Thus, a man may have a several inheritance in the upper story of a house, or in a private box at a theatre. (2 Gale & D., 435.) (9) Rowe v. Brenton, 3 Man. & Ryl., 133, 229. But mines of gold and silver, and ores containing gold or silver, belong to the crown, as an appendage to its prerogative of coining. (Plowd., 339.) The exercise of this right is controlled by the statutes 1 Will. & M., st. 1, c. 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;10 but by the name of land, which is nomen generalissimum, every thing terrestrial will pass.h11 & Co. Litt., 4. (10) By the name of a castle one or more manors may be conveyed; and, e converso, by the name of a manor a castle may pass. 1 Inst., 5; 2 Inst., 31.[CHRISTIAN.] See 1 Plowd., 168. A messuage may include a garden and curtilage, a dove-house, a mill, or shops. (Plowd., 171; 5 T. R., 48.) "When land is built upon, it is a messuage, and if the building afterward fall to decay, yet it shall not have the name of land, although there be nothing in substance, left but the land, but it shall be called a toft, which is a name superior to land and inferior to messuage; and this name it shall have in respect of the dignity which it once bore." (Plowd., 170.) A croft is an inclosed piece of land near to a messuage. (11) See 12 J. B. Moore, 296. "A gross name may contain divers things corporeal, as a manor, monastery, rectory, castle, honor, and the like, are things compound, and may contain altogether messuages, lands, meadows, woods, and such like; and a thing corporeal may be parcel of a gross name and of a thing compound; but one simple thing corporeal can not be parcel of or appurtenant to another simple thing corporeal; as, land can not be parcel of or appurtenant to meadow, nor meadow parcel of or appurtenant to pasture, nor pasture parcel of or appurtenant to wood; nor can land be parcel of or appurtenant to a messuage, nor to any other thing corporeal." (Plowd., 170.) Although the words mentioned in the text, standing unexplained and uncontrolled, have the general meanings there attributed to them, they are often interpreted in a more extended or a more contracted sense, where the context and the circumstances of the case clearly point out that they were intended to be h Ibid., 4, 5, 6. used in such a sense. Thus, where a 21 |