CHAPTER III. OT THE RIGHT OF PRIVATE PROPERTY. 37. Of the Right of Property. The right of private property is the right which every man has to use and dispose of all his own property, subject to no control save that of the law. To the protection of this right, and the redress of the wrongs by which it is violated, the law devotes by far the greater share of its attention. (The rules, which govern the two preceding rights, are clear and few in number; the wrongs against them are infrequent; and the remedies are simple and easily applied.) The rules, which govern the right of private property, are, on the contrary, numerous and difficult; the right itself is constantly invaded; and the methods of redress are manifold and intricate. Read 1 Bl. Comm., pp. 138-140. 2 Bl. Comm., pp. 1-15. 2 Kent Comm., Lect. xxxiv, pp. 317-340. § 38. Of Property in General. Property includes whatever can be exclusively possessed or enjoyed. Certain material objects, such as the ocean, light or air when unconfined, and the forces of nature, cannot be thus exclusively enjoyed, and, therefore, are not property. With a few such exceptions everything that exists, whether physically tangible or not, can be subjected to the ownership of man, and, while so subjected, is protected by the law as private property. Read 2 Bl. Comm., pp. 14, 15. 1 Kent Comm., Lect. ii, pp. 26-29. $39. Of Corporeal Property. Property, as to its intrinsic character, is of two kinds; Corporeal and Incorporeal. Corporeal property is that which has a substantive existence. It includes lands, buildings, animals, and all other material objects, which are capable of being owned by man. It can be physically possessed and enjoyed, and can be transferred from one man to another by the act known as delivery. Read 2 Bl. Comm., p. 17. 1 Cruise Dig., Tit. i, § 2. Will. R. P., pp. 11, 12. 1 Wash. R. P., B. i, Ch. i, §§ 35-39. § 40. Of Incorporeal Property. Incorporeal property is that which has no substantive existence, but exists merely in contemplation of law. It includes all rights to corporeal property, or to the use of such property. It cannot be physically possessed, although its enjoyment may consist in the performance of physical acts, or may result in the physical possession of corporeal property. It can be transferred from one man to another only by an agreement, or something equivalent thereto, in pur suance of which the former owner ceases, and the present one begins, to exercise the right and to receive its benefits. Read 2 Bl. Comm., pp. 17, 20, 21, 317. 1 Cruise Dig., Tit. i, § 10. 4 Cruise Dig., Tit. xxxii, Ch. iv, §§ 39, 40, 43. Will. R. P., pp. 11, 12, 220, 221. 1 Wash. R. P., B. i, Ch. i, §§ 37-40. § 41. Of Real Property. Property, as to its legal character, is of two kinds; Real and Personal. (Real property is that which, in contemplation of law, is immovable. It is so called because, anciently, the owner of it, when dispossessed, could recover, in a suit at law, the possession of the real thing itself. It is said to consist in lands, tenements, and hereditaments. Hereditament is a general term, including everything that can be inherited; that is, everything which will vest in the heir, by operation of law, upon the death of the ancestor. Tenement is a term of more limited signification, including such hereditaments as, under the feudal law, can be holden of some superior lord. Land is a term of still narrower meaning, including only such tenements as are corporeal. Real property thus embraces not only land, and all objects which, in contemplation of law, are immovably attached to land, but also all those rights, the period of whose duration is unascertainable, and which the law, therefore, regards as permanent and without end. Read 2 Bl. Comm., pp. 16, 17. 1 Cruise Dig., Tit. i, § 1. 4 Cruise Dig., Tit. xxxii, Ch. xx, §§ 54, 55. 3 Kent Comm., Lect. lii, p. 401. Will. R. P., pp. 1-10. 1 Wash. R. P., B. i, Ch. i, §§ 2, 3, 36. Walker Am. Law, § 21. § 42. Of Personal Property. Personal property is that which, in contemplation of law, is movable. It is so called because, anciently, the owner of it, when dispossessed, could not recover the possession of the real thing itself, but could only recover damages, to be enforced against the person of the dispossessor. The reason of this name has long since disappeared; movable property, as well as immovable, being generally now recoverable in specie, when it can be found. Personal property is also known as chattels. It includes every object which, in contemplation of law, is not immovably attached to land, and all those rights whose period of duration is fixed or ascertainable, and which the law, therefore, regards as movable and transitory. Read 2 Bl. Comm., pp. 384–387. 2 Kent Comm., Lect. xxxv, pp. 340–342. § 43. Of Fixtures. The legal character of property is liable to change without any change in its intrinsic character. An object which, considered in itself, is personal, may enter into such relations with real property as to become also real; and objects, in their nature real, may by severance from the realty become personal. Trees growing on the land are real; when cut, and lying in logs on the land, are personal. The materials, of which a house is to be built, are personal; but, when constructed into a building, may become real. These changes in the legal character of property give rise to many serious and difficult questions, the rules governing which are usually known as the law of fixtures. Read 2 Kent Comm., Lect. xxxv, pp. 343-347. 1 Wash. R. P., B. i, Ch. i, §§ 4-32. § 44. Of Corporeal Real Property. Land. Corporeal real property is land. Land embraces not only the surface of the earth and everything that grows upon it, or is, in law, permanently attached to it, but everything that lies beneath it, or is included in the space above it. Water in marshes, ponds or streams; woods, rocks, and buildings; metals within their native beds; the atmosphere that rests above the surface, are land: and, by a deed of land, all objects of this character will pass without specific mention. The owner of land is thus truly said to own from the centre of the earth to the highest heavens; and no other person can lawfully, without his consent, appropriate any portion of the space above the surface, or of the minerals below it. Read 2 Bl. Comm., pp. 17-19. 1 Cruise Dig., Tit. i, §§ 3, 6–9. 1 Wash. R. P., B. i, Ch. i, § 3. Sec. 4, § 31. § 45. Of Incorporeal Real Property; Incorporeal Here-. ditaments. Incorporeal real property embraces all those permanent rights which concern, or are annexed to, or are exercisible within, or result in the enjoyment of, corporeal property. As these rights pass by descent, from ancestor to heir, they are called incorporeal hereditaments. The principal ones, known to ancient English law, were: (1) Advowsons; (2) Tithes; (3) Commons; (4) Ways; (5) Offices; (6) Dignities; (7) Franchises; (8) Corodies or Pensions; (9) Annuities; (10) Rents. Read 2 Bl. Comm., pp. 20, 21. 3 Cruise Dig., Tit. xxi, Ch. i, §§ 2, 3. 2 Wash. R. P., B. ii, Ch. i, Sec. 1, §§ i, 2. |