only to lands and other solid objects, but also to offices, rents, commons, and the like: 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, 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.ds 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. It 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. 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. 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 1 Inst., 6. [See 10 M. & W., 742.] dition that, if his heir should pay the 6 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. 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., t. 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 B 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 20 Ancorporeal hereditament defined. CHAPTER III. OF INCORPOREAL HEREDITAMENTS An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. 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 sorts. Incorporeal hereditaments are principally of ten sorts: ada Co. Litt., 19, 20. (1) Not necessarily, as in the case of an annuity granted by one person to another and his heirs, and not charged on any property. (Co. Litt., 20, 144, b; 2 Ves. sen., 179.) It is true, that (where the annuity was not granted by the crown or other corporation (2 Ves. sen., 170)), after the death of the grantor, the annuity would cease, so far as he left no property or assets for the payment of it; and so indirectly it would be charged on property. Offices and dignities are also examples of incorporeal hereditaments which do not issue out of any thing corporate; but, though so called, they seem scarcely to partake of the nature of property. (See 1 J. B. Moore, 353.) vowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents. ap 1. Advowson is the right of presentation to a church, or eccle- 1. Advowsiastical benefice. Advowson, advocatio, signifies in clientelam sons. 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 Origin of. of manors first built churches on their own demesnes, and pointed 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 canonical⚫ly 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 Incorporeal nature of an incorporeal hereditament. It is not itself the bod-nature of. ily possession of the church and its appendages, but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It can not be delivered from man to man by any visible bodily transfer, nor can corporeal possession be had of it. If [ 22 ] the patron takes corporeal possession of the church, the churchyard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can, therefore, be only conveyed by operation of law, by verbal grant, either oral or written, which is a kind of invisible mental transfer; and, being so vested, it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church. Advowsons are either advowsons appendant, or advowsons Are append b Vol. i., p. 109. This original of the jus patronatus, by building and endowing the church, appears, also, to have been allowed in (2) The late learned Vinerian pro- by a verbal feoffment, accompanied fessor, Mr. Wooddeson, has taken notice with livery of seizin. (Litt., 59.) of this inaccuracy, and has observed that And by such a verbal grant of manor, "advowsons, merely as such (i. e., in Mr. Wooddeson justly observes, before gross) could never, in any age of the En- the statute, an advowson appendant to glish law, pass by oral grant without it might have been conveyed. (Vol. ii., deed." (2 Woodd., 64.) Lord Coke 64.) But he who has an advowson, or says expressly, that "grant is properly a right of patronage in fee, may by deed of things incorporeal, which can not transfer every species of interest out of pass without deed." (1 Inst., 9.) But it, viz., in fee, in tail, for life, for years, before the Statute of Frauds, 29 Car. or may grant one or more presentations. II., c. 3, any freehold interest in cor- [CHRISTIAN.] poreal hereditaments might have passed ant, |
