Lapas attēli

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;(2) 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.(3) Land comprehends all things of a permanent, substantial nature;(4) being a word of a very exten

sive signification, as will presently appear more at large. Tenement is *17] a word of still greater extent, and though in its vulgar accep*tation it

is only applied 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.(5) Thus liberum tenementum, frank tenement,

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for the purpose of acting on land exclusively, as railroad, canal, and turnpike companies, are real estate. Drybutter v. Bartholomew, 2 P. Wms. 127. Buckeridge v. Ingram, 2 Ves. Jr. 651. It is so held in Kentucky also. Price v. Price, 6 Dana, 10%. It is most convenient, however, to consider the share as a transmissible and assignable franchise of the personal kind, giving the proprietor a right to his proportion of the profits in money in the shape of annual dividends, and to a return of his capital in money upon the dissolution of the corporation or expiration of the charter.-SHARSWOOD.

For the title of chattels personal the choice of two reasons is given to the reader by Sir Edward Coke, 'because, for the most part, they belong to the person of a man, or else for that they are to be recovered by personal actions.' But it is submitted that the latter reason is most probably the true one. When goods and chattels began to be called personal they had become too numerous and important to accompany the persons of their owners. On the other hand, the bringing and defending of actions has always been the most prevailing business of lawyers; from the different natures of actions, the nomenclature of the law is therefore most likely to have proceeded.” Williams on Personal Property, 2, 3 (4 Am. ed. 1872). “Personal property consists of money, goods, and movables, and such rights and profits as relate to movables.” 1 Pingrey on Real Property, 24 (1895).

“The class of things real comprise land, and all the separate uses, profits and interests in land which are capable of being treated as separate subjects of property. The class of things personal comprises goods and all things movable. The terms real property and personal property follow for the most part this division of things the subject of property." Leake's Digest of the Law of Property, 8 (1874).

Under the term chattel is included every species of property not of a freehold nature, and a lease for a term of years, while a chattel real, is but personal estate. Devecmon v. Devecmon, 43 Md. 347 (1875).

(2) “ The proper and technical meaning of estate is the degree, quantity, nature and extent of interest which one has in lands, tenements and hereditaments, or in real property. i Pingrey on Real Property, 1 (1895).

(3) Boone's Law of Real Property, sect. 1 (1883). Lands, tenements and hereditaments are the subjects of_real property, and the only things in which an estate of that pature can exist. Van Rensselaer v. Poucher, 5 Denio (N.Y.) 40 (1847). The terms "lands,” “tenements," and "hereditaments," and other names describing real property, are fully explained in Co. Litt. 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 terms “ tenements" and "hereditaments." 3 Atk. 464. Ca. Temp. Talb. 143. See also Gully v. Bishop of Exeter, 4 Bing. 296, and 12 Moore, 597 (Eng. 1827).

(4) 1 M'Kinney's Justice, 34 (4 ed. 1887). Reversions are comprised under the name of “lands.” Humphreys v. Humphreys, 1 Yeates, 429 (Pa. 1791). When used to describe the quantity of the estate "land" is understood to denote a freehold estate at the least. Johnson v. Richardson, 33 Miss. 464 (1867).

(5) Boone's Law of Real Property, & 1 (1883). 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. East, 441. 8 East, 357. The terms, "any lands or tenements devisable by law,” in section 301, of article 93, of the Maryland Code, were held not to include leasehold estates, in Devecmon v. Devecmon, 43 Md. 335, 347 (1875); but in New York, by the Act of 1837, provisions of the Revised Statutes relative to the sale and redemption of real estate were extended to leasehold property when the lessee, or his assignee has an unexpired term of at least five years, or is possessed of any building erected on the premises. People v.

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or freehold, is applicable not 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. (6)(6) 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. (7) Thus an heirloom, 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;(8) and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament.(d)(9)

Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses; such

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Westervelt, 20 Wend. 420 (N. Y. 1838). It seems that “the more comprehensive meaning of the word tenement is still attached to it in legal interpretation whenever the sense requires."

Williams on Real Property, 13 (5 Am. ed. 1879). Thus a right of warren is a tenement. Earl Beauchamp v. Winn, 4 Chan. App. Cas. 571 (1869) s. c. 6 Law Rep. (E. & I. App.) 241 (1873). “Messuage " is a term of large significance, always including land. Riddle v. Littleton, 53 N. H. 509 (1823); and by the general description of a messuage a church may be recovered, 1 Salk. 256, or by a devise of a messuage, without the words "with the appurtenances” the garden and curtilage will pass, and where the interest is apparent, even other adjacent property. See cases, 2 Saund. 401, note 2. Barn & Cres. 350. See 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. 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 enclosed field; but in law it rather signifies the separate interest of the party in a particular spot of land, whether enclosed or not. 7 East, 207. Doctor v. Student, 30. The words " a certain house and appurtenances” import land within the meaning of the West Virginia statute (chap. 134, Code of 1860) to the extent of the land on which the house stands and the garden attached to it, but no further. Hawkins v. Wilson, 1 W. Va. 121 (1865). An appurtenance is not a portion of the principal thing, it is something belonging or pertaining to something else which is its principal. Ballew v. State, 26 Tex. Ct. App. 483, 485 (1888), and must be of an inferior nature to the thing to which it is appurtenant. Ballew v. State, 26 Tex. Ct. App. 483, 485 (1888). Mr. Chitty states that the "term ‘farm' though in common acceptation it imports a tract of land with a house, out-buildings, 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 common acceptation."

(6) Gully v. Bishop of Exeter, i Moo. C. P. 594, 597, (Eng. 1827); s. c. 4 Bing: 295. 1 Ballard's Real Property, sect. 109, p. 161 (1892). “ Tolls fall within the definition of tenements, and therefore, of course, within that of hereditaments.” Vauxhall Bridge Co. v. Sawyer, 6 Exch. 503, 508 (Eng. 1851).

(7) Canfield v. Ford, 28 Barb. 336, 338 (Ń. Y. 1858). Mitchell v. Warner, 5 Day, 518 (Conn. 1825). I Washburn on Real Property, 36 (5 ed. 1887). 2 id. 284. Boone's Law of Real Property, sect. 1 (1883). Hilliard's Law of Torts, 466 (3 ed. 1866). 6 Lawson's Rights, Remedies and Practice, sect. 1680 (1890). Mr. Sheppard says that the word "tenement" seems to comprehend as much as "hereditament." (Touchstone, p. 91, 1 Am. ed. 1808.) The better opinion, however, is that laid down in the text.

(8) Boone's Law of Real Property, sect. 3 (1883). (9) By a condition is here meant a qualification or restriction annexed to a conveyance of land, 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 condition that if his heir should pay the feoffer 20s. he and his heir should re-enter: this condition would be an hereditament descending on A.'s heir after A.'s death; and if such heir after A.'s death should pay the 2os. he would be entitled to re-enter, and would hold the land, as if it had descended to him. Co. Litt. 201, 214 b.--COLERIDGE.

as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. (10)

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only.(11) 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. (12) *18] *It legally includeth also all castles, houses, and other buildings: for

they consist, said 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.(13) 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 cannot 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 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.($)(14) 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:(15) wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. (16) 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

a will take notice, and not of the other. (17) (e) 1 Inst. 4.

(1) Brown). 142.

(10) i Washburn on Real Property, 36 (5 ed. 1887). Boone's Law of Real Property, sect. 2 (1883). Incorporeal property is said to lie in grant, corporeal in livery. 6 Lawson's Rights, Remedies and Practice, sect. 1680 (1890). (11) Johnson v. Richardson, 33 Miss. 462, 464 (1857).

( (12) Boone's Law of Real Property, sect. 2 (1883). 1 Pingrey on Real Property, 25 (1895). The strict and primary import of the word land is arable land. Williams on Real Property, 14 (5 Am. ed. 1879).

(13) Hoffman v. Armstrong, 48 N. Y. (3 Sickels) 201, 203 (1872). Caufield v. Ford, 28 Barb. 338 (N. Y.) 1858. Binn's Justice, 76 (10 ed. Brightly, 1895). "The word 'land' includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences.” McGhee Irrigation Ditch Co. v. Hudson, 85 Tex. 587, 592 (1893). Wolfley v. Lebanon Min. Co., 4 Col. 114 (1877). State v. Pottmeyer, 33 Ind. 403 (1870). Smith v. City of Atlanta, 92 Ga. 120 (1893). 1 Washburn on Real Property, 4 (1887). Bishop on NonContract Law, sect. 992.

(14) Boone's Law of Real Property, sect. 4 (1883). 6 Lawson's Rights, Remedies and Practice, sect. 2690 (1890).

(15) Sweet v. City of Syracuse et al., 129 N. Y. (84 Sickels) 316, 335 (1891). Mitchell v. Warner, 5 Day, 518 (Conn. 1825). Cowper v. Williams, 4 Ohio St. 287 (1831).

(16) Mason v. Hill, 27 Eng. Com. Law Reps. (5 B. & Ad.) 11, 21 (1833). Eddy v. Simpson, 3 Cal. 252 (1853). Saiver v. Smith, 30 Hun. 129, 137 (N. Y. 1883). 2 Waterman on Trespass, 160, 161 (1875).

(17) “The right to the use of water rests upon clear and settled principles. Primâ 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 unin. terrupted enjoyment of twenty years." Sir John Leach, (1 Sim. & Stu. 190). Weston v.

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.(18) Cujus est solum, ejus est usque ad cælum, is the maxim of the law;(19) upwards, therefore no man may erect any building, or the like, to overhang another's land: and downwards, 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;(20) as is every day's experience in the mining

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Alden, 8 Mass. 136. Buddington v. Bradey, 10 Conn. 213. Aqua currit et debet currere ut currere solebat [Water runs and ought to run as it was accustonied to run] is the language of the law. Though the proprietor may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. 3 Kent, 537. Norton v. Valentine, 14 Verm 239. Arnold v. Foot, 12 Wend. 330. Wadworth v. Tillotson, 15 Conn. 366. The water-power to which a riparian owner is entitled consists of the fall in the stream when in its natural state, as it passes through his land or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it. This natural power is as much the subject of property as is the land itself, of which it is an accident; and it may, in the same way, be occupied in whole, or in part, or not at all, without endangering the right or restricting the niode of its enjoyment, unless where there has been an actual adverse occupancy or enjoyment for a period commensurate with that required by the statute of limitations; and, as to a right by prior appropriation, that has regard to the quantum of water withdrawn from a stream common to both parties, and not to the quantum of fall. The latter can be augmented only by subtracting from the proprietor above, by swelling back on him; or by appropriating a part of the adjoining proprietor's fall below, by excavating the channel within his boundary and carrying out the bottom on a level to some point in the inclined line of the natural descent. C. J. Gibson, in McCalmont v. Whitaker, 3 Rawle, 90.SHARSWOOD.

(18) Boone's Law of Real Property, sec. 1 (1883). I Barbour's Rights of Persons and Property, 296, 297 (1890). The grant of land eo nomine will convey buildings and fences, as well as trees and herbage upon, or mines and quarries in, the ground. Thus the roadbed, the rails fastened to it, and the buildings at the depots of railroads, are real property. I Washburn on Real Property, 4 (5 ed. 1887).

(19),(Whoever has the land possesses all the space, upwards as well as downwards, to an indefinite extent.] Williams on Real Property, 14 (5 Am. ed. 1879). Boone's Law of Real Property, sec. 1 (1883). It is clear that this maxim ought not to apply to cases of overhanging branches of trees or to walls or other fixtures. The title to the fixture at the surface of the land determines that of everything connected with, and which is superincumbent above the surface where the base of the fixture rests. 2 Waterman on Trespass, 143 n. (1875). Hoffman v, Armstrong, 46 Barb. 337, 339 (N. Y. 1866) and affirmed in 48 N. Y. (3 Sickels) 201, 203 (1872).

Knight v. Indiana Co., and Lightfoot v. Grove (5 Heiskell), Tenn. 478 (1871). Boone's Law of Real Property, sec. 6 (1883). Williams on Real Property, 14 (5 Am. ed. 1879).

(20) The passage in the text requires a little qualification.

The freehold of customary lands, and lands held by copy of court-roll, is in the lord of the manor. In such lands, unless the act be authorized by special custom, (Whitchurch v. Holworthy, 19 Ves. 214, S. C. 4 Maul. & Sel. 340,) it is neither lawful for the customary tenant or copyholder to dig and open new mines without the license of the lord of the manor, nor for the lord, without the consent of the tenant, to open new mines under the lands occupied by such tenant. Bishop of Winchester v. Knight, 1 P. Wms. 408. And see, as to the latter point, the opinion of two judges against one, in the Lord of Rutland v. Greene, 1 Keble, 557, and infra. The acts which a lord of a manor may do by custom, to enable him profitably to work mines, previously opened, under lands which are parcel of his manor, must not be unreasonably oppressive upon the occupier of the lands, or the custom cannot be maintained. Wilkes v. Broadbent, I Wils. 64. And the lord of a manor cannot open new mines upon copyhold lands within the manor without a special custom or reservation; for the effect might be a disinherison of the whole estate of the copyholder. The lord of a manor may be in the same situation with respect to mines as with respect to trees,—that is, the property may be in him,-but it does not follow that he can enter and take it. The lord must exercise a privilege over the copyholder's estate if during the continuance of the copyhold he works mines under it, and a custom or reservation should be shown to authorize such a privilege; but as soon as the copyhold is at an end the surface will be the lord's, as well as the minerals, and he will have to work upon nothing but his own property. Grey v. The Duke of Northumberland, 13 Ves. 237. 17 Ves. 282; and S. P., at law, under the title of Bourne v. Taylor, 10 East, 205, where all the leading cases on the subject are discussed. The BOOK II.-2.



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countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it.(21) 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 his houses, as well as his fields *19] and meadows. Not but the particular names of the things are *equally

sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing:(g)(22) but the capital distinction is this, that by the name of a castle,(23) messuage,(24)

(9) Co. Litt. 4.



right to mines may be distinct from the right to the soil. In cases of copyholds, a lord may have a right under the soil of the copyholder: but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil will pass every thing under it. Townley v. Gibson, 2 T. R. 705.-CHITTY.

“Mines of gold and silver, by royal prerogative from time immemorial, have belonged to the crown.

" Williams on Real Property, 14 n. (5 Am. ed. 1879). Therefore, the royal patents for lands in New York "never included by implication the royal right to mines. By the common law the king had here, as elsewhere in his dominions, mines of gold and silver as part of his prerogative of coining.” Fowler's History of the Law of Real Property, 48 (1895).

Pennsylvania at all times granted her lands in fee simple. She fixes the boundaries of every grant. The grantee and his successors hold upwards as well as downwards. The grant includes everything terrestrial above or beneath except one-fifth of the gold and silver which were specially reserved in the grants. Painter V. Reece, 2 Pa. 128 (1845).

(21) Murphy v. Bolger, 60 Vt. 723, 726 (1888). Newell on Ejectment 51 11. (1892). 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, i Stark. 58. In the case of mines, custom has in many places made an exception to this rule. See Bainbridge on Mines, ch.

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. Gal. & D. 435.—SWEET. And minerals are capable of a possession distinct from that of the surface, and may form a separate corporeal hereditament and a subject of a distinct inheritance. 6 Lawson's Rights, Remedies and Practice, % 2683 (1890).

(22) Rogers v. Jones, i Wend. 255 (N. Y. 1828). In re Seager Estate, 92 Mich. 194 (1892). Or the right to use the water, as in the case of rivers and mill-streams. Twenty years' exclusive enjoyment of the water in any particular manner by the occupier of thie adjoining lands affords a conclusive presumption of right in the party so enjoying it; and he may maintain an action if the water be diverted from its course, so that the quantity he has thus been accustomed to enjoy is diminished, although the fishery may not be injured, (6 East, 208. 7 East, 195.. I Wils. 175;) and hé may legally enter the land of a person who has occasioned a nuisance to a watercourse, to abate it. 2 Smith's Rep. 9. Com. Dig. Pleader. 3 M. 41.-CHITTY. By the expressions waters,' watercourses,

rivers, fishings,” etc., the soil is never conveyed. East Haven v. Hemingway, 7 Conn. 186, 200 (1828).

(23) By the name of a castle, one or more manors may be conveyed; and, e converso [On the other hand,] by the name of a manor, a castle may pass. I Inst. 5. 2 inst. 31. CHRISTIAN.

“Land may be parcel of a castle: castle, honor, and the like, are things compound, and may comprise messuages, lands, meadows, woods, and such like.” Hill v. Grange, i Plowd. 168, 170.–CHITTY.

(24) A messuage, in intendment of law, primâ facie comprehends land; and it will be presumed that a curtilage, at least, belongs thereto. Scholes v. Hargreaves, 5 T. R. 48. Hockley v. Lamb, I L. Raym. 726. Scanler v. Johnson, T. Jones, 227. Patrick v. Lowre, 2 Brownl. 101. It should be observed, however, that North v. Coe, Vaugh. 253, is contra. Rights of common, and even of several, pasturage, may be appurtenant to a messuage, (Potter v. Sir Henry North, 1 Ventr. 390,) or to a cottage, (Emerton v. Selby, I L. Raym. 1015;) and where common is appurtenant, in right, to a tenement, it goes with the inheritance. i Bulst. 18. So a garden may be said to be parcel of a house, and by that name will pass in a conveyance. Smith v. Martin, 2 Saund. 401, a. S. C. 3 Keb. 44. It has also been held that land may pass as pertaining to a house, if it hath been occupied therewith for ten or twelve years; for by that time it has gained the name of parcel or belonging, and shall pass with the house in a will or lease. Higham v. Baker, Cro. Eliz. 16. Wilson v. Armourer, T. Raym. 207. Loftes v. Barker, Palm. 376. **1d by the devise of a messuage, a garden and the curtilage will pass, without saying

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