Being therefore derived from the crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant.(71) The kinds of them are various, and almost infinite. (72) I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many; but the same identical franchise that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant. (w)(73)

To be a county palatine is a franchise, vested in a number of persons. It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic; with a power to maintain perpetual succession, and do other corporate acts:(74) and each individual member of such corporation is also said to have a franchise or freedom. (75) Other franchises are, to hold a court-leet: to have a manor or lordship; (76) or, at least, to have a lordship paramount: to have waifs, wrecks, estrays, treasure-trove, royal fish, forfeitures, and deodands: to have a court of one's own, or liberty of holding pleas and trying causes: to have the cognizance of pleas; which is a still greater liberty, being an exclusive right, so that no other court shall try causes arising within that jurisdiction: to have a bailiwick, or liberty exempt from the sheriff of the county; *wherein the grantee only, [*38 and his officers, are to execute all process: to have a fair or market; with the right of taking toll, either there or at any other public places, as at bridges, wharfs, or the like; (77) which tolls must have a reasonable cause of commencement, (as in consideration of repairs, or the like,) else the

(w) 2 Roll. Abr. 191. Keilw. 196.

(71) Milton v. Haden, 32 Ala. 30, 38 (1858). 1 Pingrey on Real Property, 119 (1895). It is essential to the character of a franchise that it should be a grant from the sovereign authority, and in this country no franchise can be held which is not derived from a law of the State. Bank of Augusta v. Earle, 13 Peters, 519, 595 (U. S. 1839). In the U. S. franchises" are conferred by grant from the government, and are vested in individuals." Horst, Mayor etc. v. Moses, 48 Ala. 129, 146 (1872).

(72) Queen v. County Court Judge of Halifax, 1 Q. B. Div. 793, 797 (Eng. 1891). C. R. R. & Bkg. Co. v. State of Georgia, 54 Ga. 401, 409 (1875).

(73) Dartmouth College v. Woodward, Wheat. 518, 658 (U. S. 1819). Sellers v. Union Lumbering Co., 39 Wis. 525, 528 (1876). Charles River Bridge v. Warren Bridge, 7 Pick. 344, 520 (Mass. 1829).

(74) Regents of the Univ. of Md. v. Williams, 9 G. & J. 365, 407 (Md. 1838). People v. Tibbets, 4 Cow. 358, 380 (N. Y. 1825). A franchise created by act of incorporation, unlimited in duration, and springing out of the combined use of lands and personalty, should be denominated and classed as real estate. Price v. Price's Heirs, 6 Ky. 107 (1838).

A municipal corporation is one that has for its object the government of a portion of the state, and although in such cases it involves some private interest, yet as it is endowed with a portion of political power, the term public has been deemed appropriate. Luehrman v. Taxing District, 2 Lea, 425, 454 (Tenn. 1879).

(75) Dartmouth College v. Woodward, 4 Wheat. 518, 657, 701 (U. S. 1819). Myers on Vested Rights, 529 (1892). Spring Valley W. W. v. Schottler, 62 Cal. 69, 106 (1882). Henry v. Simard, 16 Lower Canada, 273, 285 (1866). Each individual member of a corporation is said to be the owner of the franchise, and his privilege of membership is, therefore, property. M. & S. Soc. of Montgomery County v. Weatherly, 75 Ala. 248, 253 (1883).

(76) People v. Van Rensselaer, 5 Seld. 291, 304 (N. Y. 1853).

(77) Caldwell v. City of Alton, 33 Ill. 416, 419 (1864). City of Jacksonville v. Ledworth, 26 Fla. 163, 188 (1890). Ketchum v. City of Buffalo, 21 Barb. 294, 296 (N. Y. 1854). Leedom v. Plymouth R. R. Co., 5 W. & S. 265, 266 (Pa. 1843). The right to collect tolls upon logs put into a river, granted by statute, is a franchise. Sellers v. Union Lumbering Co., 39 Wis. 525, 527 (1876). Other examples of franchises are the right to make a road or bridge and take tolls thereon. Davis v. Mayor etc. of New York, 4 N. Y. 506, 523 (1856). West River Bridge Co. v. Dix, 6 How. 507, 541 (U. S. 1848); to build and maintain a railroad or canal, Blake v. W. & St. P. R. R. Co., 19 Minn. 418, 425 (1872,) to exercise the right of eminent domain; or to establish and keep a ferry. Trustees of Maysville v. Boone, 2 J. J. Marsh, 225, 227 (Ky. 1829); Prosser v. Wapello County, 18 Iowa, 327, 333 (1865), which is a subject within the control of the government and not a

franchise is illegal and void;(78)(x) or lastly, to have a forest, chase, park, warren or fishery, endowed with privileges of royalty; (79) which species of franchise may require a more minute discussion.

As to a forest; this, in the hands of a subject, is properly the same thing with a chase; being subject to the common law, and not to the forest laws. (y) But a chase differs from a park, in that it is not enclosed, and also in that a man may have a chase in another man's ground as well as in his own, being indeed the liberty of keeping beasts of chase or royal game therein, protected even from the owner of the land, with a power of hunting them thereon. A park is an enclosed chase, extending only over a man's own grounds. The word park indeed properly signifies an enclosure; but yet it is not every field or common, which a gentleman pleases to surround with a wall or paling, and to stock with a herd of deer, that is thereby constituted a legal park: for the king's grant, or at least immemorial prescription, is necessary to make it so. (2) Though now the difference between a real park, and such enclosed grounds, is in many respects not very material: only that it is unlawful at common law for any person to kill any beasts of park or chase, (a) except such as possess these franchises of forest, chase, or park. Free warren is a similar franchise, erected for preservation or custody (which the word signifies) of beasts and fowls of warren; (b) which being feræ *39] naturæ, every one had a right to kill as he could; but upon *the introduction of the forest laws, at the Norman conquest, as will be shown hereafter, these animals being looked upon as royal game and the sole property of our savage monarchs, this franchise of free warren was invented to protect them; by giving the grantee a sole and exclusive power of killing such game so far as his warren extended, on condition of his preventing other persons. (80) A man therefore that has the franchise of warren is in reality no more than a royal gamekeeper; but no man, not even a lord of a manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free warren. (c) This franchise is almost fallen into disregard, since the new statutes for preserving the game; the name being now chiefly preserved in grounds that are set apart for breeding hares and rabbits. There are many instances of keen sportsmen in ancient times who have sold their estates, and reserved the free warren, or right of killing game, to themselves; by which means it comes to pass that a man and his

(x) 2 Inst. 220.

(y) 2 Inst. 314.

(z) Co. Litt. 233. 2 Inst. 199. 11 Rep. 86.

(a) These are properly buck, doe, fox, martin, and roe, but in a common and legal sense extend likewise to all the beasts of the forest; which, besides the other, are reckoned to be hart, hind, hare, boar, and wolf; and, in a word, all wild beasts of venary or hunting. Co. Litt. 233.

(b) The beasts are hares, coneys, and roes; the fowls are either campestres, [those frequenting fields]

as patridges, rails, and quails, or sylvestres, [those frequenting woods] as woodcocks and pheasants, or aquatiles, [water-fowls] as mallards and herons. Co. Litt. 233.

Manwood, For. L. c. 4, s. 3, gives a different account. He says (and supports his opinion by referring to the Regist. Brev. fol. 93) there are only two beasts of warren, the hare and the coney, and but two fowls of warren, the pheasant and the partridge. (c) Salk. 637.

matter of private right; and the government may exercise its powers by contracting with individuals. Mills v. St. Clair County, & How. 569, 581 (U. S. 1850). McRoberts v. Washburne, 10 Minn. 23, 27 (1865). The right to establish ferries does not belong to the riparian owners of the soil. 2 Washburn on Real Property, 305 (5 ed. 1887). But in Arkansas, riparian proprietors have by statute a right to a ferry over public waters. Haynes v. Wells, 26 Ark. 484.

(78) The right of the crown to authorize the collection of tolls cannot be imposed on the public except upon the terms of an adequate consideration in the facilities furnished to the public. Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19, 37 (1856). (79) Parker v. The People, III Ill. 581, 615 (1884); 1 Lomax's Digest of the Laws of Real Property, pp. 535, 536 (1839).

(80) A grant of a warren in a particular locality, as in a park, does not pass the soil. Earl Beauchamp v. Winn, L. R. 4 Ch. 562, 572 (Eng. 1869).

heirs have sometimes free warren over another's ground. (d) (81) A free fishery, or exclusive right of fishing in a public river, is also a royal franchise; (82) and is considered as such in all countries where the feodal polity has prevailed; (e) though the making such grants, and by that means appropriating what seems to be unnatural to restrain, the use of running water, was prohibited for the future by king John's great charter: (83) and the rivers that were fenced in his time were directed to be laid open, as well as the forests to be disafforested. (f) This opening was extended by the second(g) and third(h) charters of Henry III. to those also that were fenced under Richard I.; so that a franchise of free fishery ought now to be at least as old as the reign of Henry II. (84) This differs from a several fishery; because he that has a several fishery must also be (or at least derive his right from) the owner of the soil, (i) which in a free fishery is not requisite. (85) It differs also from a common of piscary before mentioned, in that the free fishery is an exclusive right, the common of piscary is not so: (86) and therefore, in a free fishery, a man has a property in the fish before they are caught, in a common of piscary not till afterwards. (k) Some indeed have considered a free fishery not as a royal franchise, but merely as a private grant of a liberty to fish in the several fishery of the grantor. (1) But to consider such right as originally a flower of the prerogative, till restrained by magna charta, and derived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription, and to distinguish it (as we have done) from a several and a common of fishery, may remove some difficulties in respect to this matter, with which our books are embarrassed. For it must be acknowledged, that the right and distinctions of the three species of fishery are very much confounded in our law-books; and that there are not wanting respectable authorities(m) which maintain that a several fishery may exist distinct from the property of the soil, and

[*40

(81) Any one may now lease or convey his land, and reserve to himself the right of entering to kill game, without being subject to be sued as a trespasser; but the right of free warren can only exist by the king's grant, or by prescription, from which such a grant is presumed. Manw. Warren. Forrest, pl. 43.-CHRISTIAN.

(82) Brown on the Law of Limitation, 163, 164, 165, 195, 196, 199 (1869). A free fishery is a franchise frequently vested in private persons, either by a grant or by prescription. Boone's Law of Real Property, sect. 132 (1883).

(83) Weston v. Sampson, 8 Cush. 346, 252 (Mass. 1851). It is a settled principle of the English law, that the public domain in the navigable waters and the beds thereof extends to the usual, but not extraordinary, high water mark, and that within that limit, the public have the absolute proprietary interest in the same, and the right of fishery is common to all. This principle is believed to have been generally recognized in the United States. It is a right common to all the citizens of the state to fish in the tide waters of the state, and may be enjoyed at will, except so far as it is restrained by positive law, or by grants from the state to individuals. I Pingrey on Real Property, 107, 108 (1895). See also Washburn on Easements and Servitudes, 533. Carson v. Blazer, 2 Binn. 475 (Pa. 1807). Parker v. Cutter Mill Dam Co., 7 Shep. 353. In this country the presumption of law is against the existence of a free fishery in a public river. Yard v. Carman, 2 Pen. 681, 686 (N. J. 1812).

(84) Rogers v. Allen, 1 Camp. 309, 312 n. (Eng. 1808). Arnold v. Mundy, I Hals. Law 1, 74, 88 (N. J. 1821). 2 Greenleaf's Cruise on Real Property 57 (2 ed. 1856).

(85) 2 Greenleaf 's Cruise on Real Property 60, 61 (2 ed. 1856). 1 Pingrey on Real Property 109 (1895). A several fishery can only be acquired by a grant of the soil covered by the water in which the fishing is done, or by a grant from the owner of the soil of the fishery distinct from the soil. Collins v. Benbury, 3 Ired. 277, 383 (N. C. 1842). (86) Boone's Law of Real Property, sect. 132 (1883). A free fishery is not an exclusive fishery. Melvin v. Whiting, 7 Pick. (Mass.) 79.

that a free fishery implies no exclusive right, but is synonymous with common of piscary.(87)

VIII. Corodies are a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. (n) In lieu of which (especially when due from ecclesiastical persons) a pension or sum of money is sometimes substituted. (o) And these may be reckoned another species of incorporeal hereditaments; though not chargeable on, or issuing from, any corporeal inheritance, but only charged on the person of the owner in respect of such his inheritance. To these may be added,

IX. Annuities, which are much of the same nature; only that these arise from temporal, as the former from spiritual, persons. An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded: a rent-charge being a burden imposed upon, and issuing out of, lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor.()(88) Therefore, if a man by deed grant to another the sum of 20l. per annum, without expressing out of what lands it shall issue, no land at all shall be charged with it; but it is a mere personal annuity; which is of so little account in the law, that if granted to an eleemosynary corporation, it is not within the statutes of mortmain;(9) and yet a man may have a real estate in it, though his security is merely personal. (89)

(n) Finch, i. 162.

(0) See book i. ch. 8.

(p) Co. Litt. 144.
(q) Co. Litt. 2.

(87) "Mr. Schultes prefers a division into two classes only; the first consisting of the right which one man enjoys in common with others, whether they be few or many, or the entire community; and the second being the right which is his own, exclusive of all others, which he terms a several fishery, or a fishery in gross. This division is strictly accurate, but perhaps less convenient in practice" than the division into free fishery, several fishery, and common of piscary. See Schultes on Aquatic Rights, p. 60. 2 Greenleaf's Cruise on Real Property, II n. (2 ed. 1856). A prescriptive right cannot be acquired by mere uninterrupted exercise and use, no matter for how long a time; because the person so fishing exercises prima facie, only a right which belongs to him in common with all others. Challen v. Dickerson, I Conn. 382. Collins v. Benbury, 5 Iredell, 118. In order to raise a presumption of a grant of an exclusive right in any person, it should appear that all others have been kept out by him and his grantees. Del. & Md. R. R. Cò. v. Stump, 8 Gill & J. 479, 510. Day v. Day, 4 Md. 262.

In North Carolina, waters which are capable in fact of affording a passage to common sea-vessels are to be considered as navigable. Collins v. Benbury, 5 Iredell, 118. So in Pennsylvania. Carson v. Blazer, 2 Binn. 475. The owners of land on the banks of the Susquehanna and other principal rivers have not an exclusive right to fish in the river immediately in front of their land; but the right to fisheries in these rivers is vested in the State and open to all. Ibid. Shrunk v. Schuylkill Navigation Co., 14 S. &. R. 71. The right to fish in unnavigable rivers belongs exclusively to the owners of the lands adjoining, extending to the middle of the river, under such restraints as government may impose, -the right of regulating the taking of fish, whether in navigable or other streams, residing in the State. Commonwealth v. Chapin, 5 Pick. 199. Watero v. Lilley, 4 Pick. 145. Ingram v. Threadgill, 3 Den. 59.-SHARSWOOD. See also 2 Greenleaf's Cruise on Real Property, 10 n. (2 ed. 1856).

The most rational view of the subject would seem to refer back to the original sources of the right of piscary, as a common right belonging to the public, or as an exclusive right belonging to the owner of the soil-as an incident to the dominion of the soil, whether public or private, no more inseparable from it than any other incident connected with it, and to measure the right by the terms of the enfranchisement of the grant. I Lomax's Digest of the Laws of Real Property, 518 (1839).

(88) Taylor v. Martindale, 10 Eng. Law J. Eq. (N. S.) 340 (1841). Wagstaff v. Lowerre, 23 Barb. 209, 216 (N. Y. 1856). I Schouler's Personal Property, sect. 542 (2 ed. 1884). Brantly's Personal Property, sect. 87 (1861). 1 Pingrey on Real Property, 124 (1895). An annuity may be charged on land, and the remedy of the grantee may, at his election, be real or personal. Willard on Real Estate and Conveyancing, 203 (2 ed. 1885).

(89) Weller v. Cowler, 2 Day, 575 (Conn. 1818). Price v. Price's Heirs, 6 Dana, 107 (Ky. 1838). An annuity is realty so far as descent is concerned, or, more properly speaking, though personal in itself, it descends as if it were realty, the reason of which

X. *Rents are the last species of incorporeal hereditaments. (90) The [*41 word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgment given for the possession of some corporal inheritance. (r) (91) It is defined to be a certain profit issuing yearly out of lands and tenements corporeal. (92) It must be a profit; yet there is no occasion for it to be, as it usually is, a sum of money; for spurs, capons, horses, corn, and other matters may be rendered, and frequently are rendered, by way of rent. (s) (93) It may also consist in services or manual operations; as, to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services, in the eye of the law, are profits. This profit must also be certain; or that which may be reduced to a certainty by either party. (94) It must also issue yearly though there is no occasion for it to issue every successive year; but it may be reserved every second, third, or fourth year; (t) yet, as it is to be produced out of the profits of lands and tenements, as a recompense for being permitted to hold or enjoy them, it ought to be reserved yearly, because those profits do annually arise and are annually renewed. It must issue out of the thing granted, and not be part

(r) Co. Litt. 144.

(8) Ibid. 142.

(t) Ibid. 47.

A

is that it is limited by the grant to the heir, otherwise it would not be a hereditament. It is only as regards descent that it is considered as realty. Johns v. Johns, I Ohio St. 350, 358 (1853). Therefore it follows that in all other respects except that of descending to the heir, it bears none of the incidents and characteristics of real estate. Of this kind of inheritance a husband is not entitled to be tenant by the curtesy, nor the wife to be endowed. A grant of it to a corporation is not mortmain. I Inst. 32, a. 2, 6. It cannot be conveyed by way of use, though "hereditaments" is a word used in the statute of uses, for want of the necessary seisin. Jones, 127. Gilbert on Uses, 281. 2 Wils. 224. personal annuity is personal property; and it will pass by a person's will under the bequest of all his personal estate; while, if it be given to one forever, the executor and not the heir of the grantee takes it. 1 Schouler's Personal Property, sect. 542 (2 ed. 1884). Though an annuity may be granted in fee, it cannot be entailed. I Greenleaf's Cruise on Real Property, 83 (2 ed. 1856). An annuity is not apportionable by common law. Where an annuity is given by will without direction as to the time of its comr mencement, the rule is that it commences at the testator's death. I Schouler's Personal Property, sect. 542 (2 ed. 1884).

(90) Hope v. White, 17 U. C. C. P. 52, 60 (Canada, 1866). Payne v. Beal, 4 Denio, 412 (N. Y. 1847).

(91) Cooke v. Wise, and Newton v. Wilson, 3 Hen. & M. 483 (Va. 1809). Sutliffe v. Atwood, 15 Ohio St. 186, 193 (1864). Rent, by the common law, is incident to the reversion, and cannot be reserved to a stranger. But it is not inseparable from the reversion, and, having been created, it may be severed from the reversion, and may be appor tioned to different parties and upon different portions of the estate, either by the act of the party or by operation of law. Ryerson v. Quackenbush, 2 Dutch. 236, 249 (N. J. 1857). Where A contracts with B the owner of land, to mine ore thereupon and deliver the same to C, B to collect a royalty from C, this was not a lease, and B's royalty not rent. Campbell v. Rust. 85 Va. 653, 665 (1889).

(92) Van Rensselaer v. Bonesteel, 24 Barb. 365, 368 (N. Y. 1857). Parsell v. Stryker, 41 N. Y. 480, 483 (1869). Van Rensselaer v. Jones, 2 Barb. 643, 667 (N. Y. 1848). Adams v. Blecker, 33 Mo. 403, 405 (1863). Dolph v. White, 2 Kern. 296, 300 (N. Y. 1855). A rent is a right to the periodical receipt of money or money's worth in respect of lands which are held in possession, reversion, or remainder by him from whom the payment is due. Tiedeman on Real Property, sect. 641 (2 ed. 1892). Mickle v. Miles, 31 Pa. 20, 21 (1856). Landlord and Tenant in Pennsylvania (Jackson and Gross) 36 (2 ed. 1884). But a rent cannot issue out of a mere privilege or easement. I Pingrey on Real Property, 128 (1895).

(93) Owers v. Conner, 1 Bibb, 605, 606 (Ky. 1809). A rent of a peppercorn is often employed in building leases in respect of the period during which the buildings are likely to be in course of erection, see Settled Land Act, 1882, s. 8 (2), which authorizes such a reservation in building leases granted under the act, "for the first five years or any less part of the term." Goodeve's Modern Law of Real Property, 222 n. (3 ed. 1891).

(94) Scruggs v. Gibson, 40 Ga. 511, 522 (1869). Stephens v. Reynolds, 2 Seld. 454, 458 (N. Y. 1852).