1. RIGHTS TO REAL CHAP. IV. portant as respected the capital offence of burglary, which might be committed as well in a detached outhouse within the PROPERTY. Curtilage, as in the principal dwelling-house itself; (k) but now by that act (7 & 8 Geo. 4, c. 29, s. 11, 13,) it is enacted that no building, although within the same curtilage with the dwellinghouse, and occupied therewith, shall be deemed to be part of such dwelling-house, for the purpose of burglary, or for any of the criminal purposes mentioned in the act, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other; (7) and the 14th section enacts that the feloniously breaking and entering any other building not so connected with the dwelling-house, but being within its curtilage, and occupied therewith, shall be punished with transportation for life, or seven years, or not exceeding four years' imprisonment, with whipping, if a male: so that the term curtilage and its strict extent is still very important as regards the degree of punishment, though the capital punishment for burglary can only be inflicted when the building falls strictly within the description in the 11th and 13th sections. 12. Area. 13. Yards, and courts, and backsides. 12. Areas. As respects the criminal law, a person found in or upon an area or inclosed yard, for any unlawful purpose, may be apprehended by any person, and punished as a rogue and vagabond. (m) The fence of an area also is protected, and stealing, or breaking it, with intent to steal it, is felony. (n) But the breaking the gate of an area is not burglary at common law, though thereby the offender afterwards enter the house, the outer door there of being open. (o) 13. Yard is a common term in deeds, and this, together with courts, are mentioned in the Highway Act as places which cannot be taken for the purpose of widening a highway. (p) It is illegal to keep a ferocious dog in a yard, with the gate open, without giving full notice of the danger, and if that be omitted, the owner may be liable to make compensation for damages. (q) So persons found in an inclosed yard for any unlawful purpose may be apprehended and punished as a rogue and vagabond. (r) endangered by breaking the outer door or other security. (m) 5 Geo. 4, c. 85, s. 4. (n) 7 & 8 Geo. 4, c. 29, s. 44. (r) See Vagrant Act, 5 Geo. 4, c. 83. Backside was a term formerly used in conveyances and even in pleadings, and is still adhered to with reference to ancient descriptions in deeds, in continuing the transfers of the same properties; it imports a yard at the back part of or behind a house, and belonging thereto; but though formerly used in pleading, (s) it is now unusual to adopt it, and the word yard. or preferred. CHAP. IV. I. RIGHTS TO REAL PROPERTY. and orchards, &c., and things therein. 14. Gardens and orchards and nursery grounds, hothouses, 14. Gardens, greenhouses, and conservatories. (t) An ejectment lies for a garden, or for an orchard, without other name. These are particularly named and protected in the modern acts against larceny and malicious injuries. The power to enter gardens or orchards is also excepted in the highway and other acts, and therefore it is not an unusual expedient to plant fruit trees in a field to prevent the turning a road over the same, (u) and garden grounds used for trade are as much protected by that exception as private pleasure gardens, and an injunction against entering them, for the purpose of a highway, may be equally obtained in the one case as in the other. (x) And where a close had been planted with shrubs within the last six years, and recently with potatoes, it was held to be a garden within the meaning of an exception in an action for entering and searching for minerals in the lands of another, according to a custom, the sites of houses, gardens, orchards, and highways, excepted. (y) Annual roots and flowers, planted in a garden, may be removed by any tenant; and so may young fruit trees and shrubs in the garden or nursery of a person to whom the same has been let for the purpose of sale or trade. (2) But unless a garden or orchard or other land has been so let as nursery ground, no tenant can, as between him and the landlord, remove any flower, root, tree, or shrub, not strictly an annual, or not usually taken up at one season of the year, and re-planted at another season; and if, without authority, he should remove the same, he would be liable to an action for the waste. And if a tenant of any description has made strawberry-beds, he cannot, either before or at the expiration of his tenancy, and whilst they are likely to continue productive, remove or destroy the same, without being liable to an action for the injury to the landlord or succeeding tenant. (a) As respects criminal injuries, the 7 & 8 Geo. 4, c. 29, s. 42, enacts, that if any person shall steal, or destroy, or damage, with intent to steal, any plant, root, fruit, or vegetable production, growing in any garden, orchard; nursery-ground, hothouse, greenhouse, or conservatory, he may, on summary conviction, be imprisoned for six calendar months, and the punishment is increased on subsequent offences. And by 7 & 8 Geo. 4, c. 30, s. 19, malicious injuries, to the extent of 17., to any tree, sapling, or shrub, growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground belonging to any dwelling-house, is felony, punishable with transportation for seven years, or two years' imprisonment; and by the 21st section, the maliciously destroying, or damaging with intent to destroy, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery-ground, hothouse, greenhouse, or conservatory, is punishable with imprisonment for six calendar months, with hard labour, or forfeiture of the value of the injury, and 207. 15. There is another new and rather too loose and undefined a description of ground or land introduced in modern acts, which make it more penal to commit offences there than elsewhere, viz. ground adjoining or belonging to any dwelling-house, park, pleasure ground, garden, orchard, avenue, or "any ground adjoining or belonging to any dwelling-house." This is the description of certain places particularly protected as respects any tree, sapling, shrub, or underwood there growing, the stealing or damaging which, with intent to steal the same, (b) or the maliciously injuring the same, (c) is punishable as a felony, and simple larceny, in case the value of the article or articles stolen, or the amount of the injury shall exceed 17. ; (d) whereas, the stealing such articles elsewhere would not be punishable as a felony, unless the trees were worth, or the damage done exceed, 51., and if under that amount, the offence is only punishable summarily with payment of the damage, and not exceeding 51. penalty. (e) The words "adjoining to any dwelling house" in these acts, import actual contact, and therefore ground separated from a house by a narrow walk and paling, with a gate in it, is not within their meaning; (f) and whether ground be pro (b) 7 & 8 Geo. 4, c. 29, s. 38. (c) Id. c. 30, s. 19. (e) Id. s. 39. (f) 1 Mood. & M. 341, on sect. 38. (d) Id. c. 29, s. 38. perly described as a "garden" within the same section, is a question for a jury, and it has been held that the word "plant" and "vegetable production" in section 42, do not apply to young fruit trees intended for sale, and the place where the latter are growing ought to be described as a nursery, and not as a garden. So the wilfully taking or destroying any fish in any water that shall run through or be in any land adjoining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, is a misdemeanor; whereas the taking fish in other water is only an offence punishable summarily with a pecuniary penalty of 5l. (g). It is to be regretted that in declaring such acts to be felonies or misdemeanors, a more defined description of place or distance from the dwelling-house than land or ground adjoining or belonging to a dwelling-honse, has not been adopted. (h) It was held, that a stream of water (in which the plaintiff had the several fishery) running by the side of a piece of ground which it inclosed on every side, except that on which it was bounded by the water, was not a stream in inclosed ground, within 5 Geo. 3, c. 14, s. 3, so as to subject a person fishing therein to the penalty inflicted by that act. (¿) CHAP. IV. I. RIGHTS 16. Land is the most comprehensive term in law in de- 16. Land. scribing real property corporeal, and by it every thing terrestrial and fixed will pass. (k) By that term, without other words, in a conveyance, not only land itself of every description, whether yards, orchard, garden, arable, meadow, pasture, woodland, land covered with water, and waste land, will pass, but also all houses and buildings thereon, and every thing thereon growing or thereto annexed; and therefore though in conveyances and wills, and declarations in ejectment, it has been usual to describe the particular kind of land, as so many acres of arable land,-acres of meadow land,-acres of pasture land, &c. &c. (and it is said that otherwise it will be taken to (g) 7 & 8 Geo. 4, c. 29, s. 34. (h) Quare. (i) 1 Marsh. 127; 5 Taunt. 440. (k) Co. Lit. 4, 5, 6; 2 Bla. C. 17, 18; 1 Butr. 133, 144. It was formerly considered necessary in ejectment to describe the property more particularly than at present, so that the sheriff, by reading CHAP. IV. 17. Acres, mean arable land, (/)) and also to enumerate houses and all kinds of outbuildings, that is not strictly necessary; (m) and if a person eject another from land and afterwards build thereon, it suffices for the owner to bring his ejectment for the land without specifying the building. (n) But an advowson in gross being an incorporeal hereditament, though belonging to the same owner, will not pass under a devise of lands, though it would if the words "tenements and hereditaments" be added.(0) Cujus est solum ejus est usque ad cœlum is a well known maxim in law, so that by the conveyance or devise of "land," every thing, as well above as below, such as mines, unless expressly excepted, will pass; (p) and if a person erect or fix any thing hanging over the land of another, and not merely temporarily passing over it; or if he from an adjoining highway fire off a gun, so that the shot pass over the land of another;(p) or if he undermine his land, or penetrate his mine, (q) these are direct and immediate injuries to the land, for which trespass is sustainable. 17. 66 Acres more or less. When the quantity of land to more or less. (r) be sold or demised is stated, it is usual to describe the quantity as "containing by estimation acres more or less," and which imports that the precise quantity is not warranted; but a large deficiency, such as 100 acres short, in land described as " 349 acres more or less," would not be tolerated. (s) In cases of this description, where there has been an actual conveyance, relief would not be so readily obtained in equity, because the party had been guilty of laches in proceeding so far. (t) But it seems, notwithstanding the opinion of the then Master of the Rolls to the contrary, (u) that when the deficiency is considerable, the purchaser will be entitled to a compensation or deduction (1) It has been considered that land in a fine or recovery, unless otherwise described, as meadow, pasture, wood, &c. means arable land; Salk. 256; Cowp. 346. The word terra, land, was anciently spelt tera, so called a terendo, quia vomere teritur, and in that sense it included only what was ploughed, but legally it has the more enlarged meaning, see Co. Lit. 4 a. When the pleadings were in Latin, the terra, without other words, would therefore import ploughed land, and this accounts for the decision, that terra alone denoted only ploughed land, and see 1 Thomas's Co. Lit. 333. (m) As to utility of general words, see 1 Prest. Ab. 93. (n) 1 Burr. 133, 144; but it is there said, that if the building be a messuage, it ought then to be stated, sed quære the distinction. (0) Id. ibid.; 4 Bing. 293, ante. (p) 2 B. & Adolp. 443; Shep. T. 90; 2 Bla. C. 18; and as to the remedies for firing off a gun over land, &c. 11 Mod. 74, 130, 184; 2 Burr. 1114; 1 Stark. R. 56; see post, 184, Mines. (9) 1 Bla. R. 482; 3 Burr. 1556. (r) See in general, Sug. V. & P. 8th ed. 294 to 303; 1 Thomas's Co. Lit. 217, 219; 6 Geo. 4, c. 12, s. 23; 10 Bar. & C. 446; and see Cross v. Elgin, 2 B. & Adolp. 106. (s) 2 Russ. R. 570; 2 B. & Adolp. 106. |