« ForrigeFortsett »
alfo the folid fubftance; and which yet would be frequently found without a proprietor, had not the wifdom of the law provided a remedy to obviate this inconvenience. Such are forefts and other wafte grounds, which were omitted to be appropriated in the general diftribution of lands; fuch alfo are wrecks, eftrays, and that fpecies of wild animals which the arbitrary constitutions of pofitive law have diftinguished from the rest by the well-known appellation of game. With regard to these and fome others, as difturbances and quarrels would frequently arife among individuals, contending about the acquifition of this fpecies of property by firft occupancy, [ 15 ] the law has therefore wifely cut up the root of diffenfion, by vefting the things themselves in the fovereign of the state: or elfe in his reprefentatives appointed and authorised by him, being ufually the lords of manors(5). And thus the legislature of England has univerfally promoted the grand ends of civil fociety, the peace and fecurity of individuals, by fteadily purfuing that wife and orderly maxim, of affigning to every thing capable of ownership a legal and determinate owner.
(-) The learned Judge has frequently repeated in his commentaries, that all the game belongs to the king, or to his grantees, being ufually the lords of manors. This is a doctrine which the editor is obliged to controvert. His reafons and authorities will be ftated at large in a note to page 419.
CHAPTER THE SECOND.
OF REAL PROPERTY; AND, FIRST, OF
HE objects of dominion or property are things, as contradiftinguished from perfons: and things are by the law of England distributed into two kinds; things real, and things perfonal. Things real are fuch as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things perfonal are goods, money, and all other moveables; which may attend the owner's perfon wherever he thinks proper to go.
IN treating of things real, let us confider, firft, their feveral forts or kinds; fecondly, the tenures by which they may be holden; thirdly, the eftates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and lofing it.
FIRST, with regard to their feveral forts or kinds, things real are ufually faid to confift in lands, tenements, or hereditaments. Land comprehends all things of a permanent, fubftantial nature; being a word of a very extenfive fignification, as will presently appear more at large. Tenement is a word of ftill greater extent, and though in its vulgar accept
ation it is only applied to houses and other buildings, yet in it's original, proper, and legal fenfe, it fignifies every thing that may be holden, provided it be of a permanent nature; whether it be of a fubftantial and fenfible, or of an unfubftantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other folid objects, but also to offices, rents, commons, and the like": and, as lands and houses are tenements, fo is an advowson a tenement; and a franchife, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements. But an bereditament, says fir Edward Coke, is by much the largest and most comprehensive expreffion : for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, perfonal, or mixed. Thus an heir-loom, or implement of furniture which by custom defcends to the heir together with an houfe, is neither land, nor tenement, but a mere moveable: yet, being inheritable, is comprized under the general word hereditament: and fo a condition, the benefit of which may defcend to a man from his ancestor, is alfo an hereditament".
HEREDITAMENTS then, to use the largest expreffion, are of two kinds, corporeal and incorporeal. Corporeal consist of fuch as affect the fenfes; fuch as may be seen and handled by the body: incorporeal are not the object of fenfation, can neither be seen nor handled, are creatures of the mind, and exift only in contemplation.
CORPOREAL hereditaments confift wholly of fubftantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, fays fir Edward Coke, comprehendeth in it's legal fignification any ground, foil, or earth whatsoever; as arable, meadows, paftures, woods, moors, waters, marshes, furzes, and heath.
It legally includeth also all castles, houses, and other buildings for they confift, faith he, of two things; land, which is the foundation, and ftructure thereupon: fo that, if I convey the land or ground, the ftructure or building paffeth therewith. It is obfervable that water is here mentioned as a fpecies of land, which may feem a kind of folecism; but fuch is the language of the law: and therefore I cannot bring an action to recover poffeffion of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for fo many cubical yards; or, by superficial measure, for twenty acres of water; or by general defcription, 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. For water is a moveable wandering thing, and muft of neceflity continue common by the law of nature; fo that I can only have a temporary, tranfient, ufufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.
LAND hath alfo, in it's legal fignification, an indefinite extent, upwards as well as downwards. Cujus eft folum, ejus eft ufque ad coelum, is the maxim of the law, 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 furface of any land and the center of the earth, belongs to the owner of the furface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other foffils, his woods, his waters, and his houfes, as well as his fields and meadows. Not but the particular names of the things are
f Brownl. 142.
equally fufficient to pass them, except in the inftance of water; by a grant of which, nothing paffes but a right of fish= ing but the capital distinction is this; that by the name of a castle (1), messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generaliffimum, every thing terrestrial will pass".
h Ibid. 4, 5, 6.
g Co. Litt. 4.
(1) By the name of a castle, one or more manors may veyed; and e converfo by the name of a manor, a caftle may pass. 1 Inft. 5. 2 Inft. 31.