No. 413.

Book 1, part 2, tit. 11, chap. 10.

No. 413.

has as good a right to the services of the apprentice as the other, and as he cannot serve both, he is perhaps not bound to serve either. (a)

4. On a complaint to the proper tribunal, and proof of some grave abuse of power, or great neglect in the performance of the covenants in the indenture, the indenture will be cancelled. This power is generally given to the courts by the local laws.

(a) Hiatt v. Gilmer, 6 Iredell, 450.

168

BOOK II.-OF THINGS.

PART I.-OF THE GENERAL NATURE OF THINGS.

414. Having considered the rights and duties of persons, which form the subject of the first book, it is proper now, in this second book, to examine, according to our plan, the things to which persons are entitled, leaving for the third, fourth, and fifth books, the consideration of actions, or the remedies for the infractions of the rights to those things or to property.

415. By the word things is understood whatever may become the object of a right, or of an obligation, whatever may belong to some one, all objects from which a man may receive some benefit, some advantage or something useful. Even man himself, his actions and his rights, in those states where slavery is admitted, may be considered things, because they may become the object of another's right.

416. Actions, also, which in another point of view, are the third object of law, may be classed with things when they are considered as a right belonging to a man, and making a part of his property, the object of the action being to obtain a thing belonging to us, though not in our possession. Hence a distinction is made between a thing in possession, or a chose in possession, and a thing not in possession, or a chose in action, for which an action must be brought to get possession.

417. Things and property are not in law synonymous expressions. The first is much more extended and general than the latter; it comprehends evey thing which exists, or which may be of some use to man, although he does not possess it, and, as yet, it makes no part of his patrimony. For example, the air, the sea, wild animals, and desert lands, which are possessed by no one, and to which no one has a title, are things, and not property. Property, on the contrary, comprehends whatever we possess or are entitled to, as a house, a

No. 418.

Book 2, part 1, chap. 2, sec. 1.

No. 422.

horse, a ring, &c., for it is nothing but the possession which we have, or to which we are entitled, which gives to things the character of property. In other words, things are every object which we may possess, and property whatever we possess or are entitled to.

CHAPTER I.-OF THINGS CORPOREAL AND INCORPOREAL.

418. The first division of things is in relation to their nature. It is into things corporeal and things incorporeal.

SECTION 1.-OF THINGS CORPOREAL.

419. Corporeal things are those which are visible and tangible, as a house, a field, a horse, a book, a jewel, &c.

SECTION 2.-OF THINGS INCORPOREAL.

420. Things incorporeal are those which are not the objects of sensation, but are the creatures of the mind, being rights issuing out of a thing corporeal, or concerning or exercisable within the same; as an obligation, a servitude, an easement, or a usufruct. (a) This subject will be considered under another head.

CHAPTER II.-OF THINGS WHICH ARE THE OBJECTS OF PROPERTY.

421. Things considered as to the property which may be had in them, are capable of being possessed by single persons exclusively of all others, by the Roman or civil law, then said to be in patrimonio; or incapable of being so possessed, when they are said to be extra patrimonium.

SECTION 1.-OF THINGS IN WHICH PROPERTY MAY BE HAD.

422.-—1. Things in patrimonio are divided into corporeal and incorporeal when considered as to their nature; and the corporeal are again divided into

(a) Domat, Lois Civiles, liv. prél. t. 3, s. 2, § 3; Poth. Traité des Choses, in princ.

No. 423.

Book 2, part 1, chap. 2, sec. 2, § 1, 2.

No. 426.

movable or personal, and immovable or real, when considered as to their kinds.

These things are capable of becoming objects of property, and may be transferred from hand to hand, and passed either by descent or by purchase. They are things in commerce, the title to which is guaranteed to their owners by the law.

SECTION 2.-OF THINGS WHICH CANNOT BE THE OBJECTS OF PRIVATE PROPERTY.

423.-2. Things extra patrimonium, or those in which no private property can be had by individuals, exclusively from the rest of mankind, are, 1, those which are common to all men; 2, those which belong to the public generally; 3, those which belong to cities or municipal corporations.

§ 1. Of things common.

424. Things common are the heavens, the light, the air, and the sea, which cannot be appropriated by any man or set of men, so as to deprive others of the use of them. (a) It is evident that no private property can be had in the heavens, the light, the air, and the sea, which belong equally to all men, and are indispensable to their existence. All men have the right to navigate the sea, and to fish there.(b)

§ 2. Of things public.

425. Res publica, or things public, are those the property of which is in the state, and their use is common to all its members, as navigable rivers, harbors, the sea shore, highways, bridges, and the like.

426.-1. A river is a natural collection of waters, arising from springs or fountains, which flow in a bed or canal of considerable width and length, toward the sea.(c) Rivers are public or private. A private

(a) Dom. Lois Civ. liv. prél. t. 3, s. 1, §§ 5, 6; Inst. 2, 1, 1. (b) Dom. Lois Civ. Droit Public, liv. 1, t. 8, s. 2.

(c) Reynolds v. McArthur, 2 Pet. 417; Jackson v. Halstead, 5 Cowen,

No. 427.

Book 2, part 1, chap. 2, sec. 2, § 2.

No. 430.

river is one which, owing to its shallowness, or in consequence of the obstructions which are in it, cannot commonly be navigated, and belongs to private individuals, but it is still subject to public use when it can be navigated. (a)

427. Public rivers are those in which the public have an exclusive right, that is, such as cannot be appropriated to private use. They are navigable or not navigable.

428. The term navigable rivers, in a technical sense, means a river in which the tide flows. The soil or bed of such a river belongs not to the riparian proprietor, but to the public.(b)

429. Public rivers, not navigable, are those which belong to the people in general, as public highways; the soil of these rivers, belongs generally to the riparian owner, but the public have the use of the stream, and the authors of nuisances or impediments on them may be punished. (c) But in some states, as Alabama and Pennsylvania, the bed of the great rivers belongs to the public, and not to the riparian owner.(d)

430. By the ordinance of congress of 1787, art. 4, relating to the north-western territory, it is provided, that the navigable waters leading into the Mississippi and the St. Lawrence, and the carrying places between the same, shall be common highways and forever free.(e) This provision does not deprive the owner of any such river, of the right to the bed of the river when he owns both the banks, or his right to the centre of the stream, the dividing line, or filum aquæ, when he owns one side only.(f)

(a) Executors of Cates v. Wadlington, 1 McCord's R. 580.

(b) Horne v. Richards, 4 Call. 441. See Pollard v. Hagan, 3 How. U. S. 212; Jackson v. Lewis, Cheves, 259.

(c) Ang. on Wat. Courses, 202; Call. on Sewers, 78.

(d) Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Co., 14 S. & R. 71; Bullock v. Wilson, 2 Port. 436.

(e) 3 Story's Laws of U. S. 2077.

(f) Gavitt v. Chambers, 3 Ohio Rep. 496. See Palmer v. Cuyabroga County, 3 McLean, 226.