CHAPTER THE SECOND.

OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.

THE

HE objects of dominion or property are things, as contradistinguished 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 losing it.

FIRST, with regard to their feveral forts or kinds, things real are usually said to confist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of ftill greater extent, and though in it's vulgar accept

tation 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 fpeaking, tenements b. But an hereditament, fays fir Edward Coke, is by much the largest and most comprehenfive 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 confift of fuch as affect the fenses; fuch 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.

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 whatfoever; as arable, meadows, paftures, woods, moors, waters, marfhes, furzes, and heath.

a Co. Litt. 6.

b Ibid. 19, 20.

1 Inft. 6.

VOL. II.

B

d

3 Rep. 2. • 1 Inft. 4.

It

It legally includeth alfo all caftles, houfes, and other buildings for they consist, faith he, of two things; land, which is the foundation, and structure thereupon: fo that, if I convey the land or ground, the structure or building passeth 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 fuperficial measure, for twenty acres of water; or by general defcription, as for a pond, a watercourfe, or a rivulet: but I muft bring my action for that the land 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 necessity 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 also, 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 surface; 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 houses, as well as his fields and meadows. Not but the particular names of the things are

f Brownl. 142,

equally

equally fufficient to pass them, except in the inftance of water; by a grant of which, nothing paffes but a right of fishing but the capital distinction is this; that by the name of a castle, meffuage, toft, croft, or the like, nothing else will pafs, except what falls with the utmoft propriety under the term made use of; but by the name of land, which is nomen generaliffimum, every thing terrestrial will pass 1.

CHAPTER THE THIRD.

OF INCORPOREAL HEREDITAMENTS.

N incorporeal hereditament is a right iffuing out of a thing corporate (whether real or perfonal) or concerning, or annexed to, or exercifible within, the fame. It is not the thing corporate itself, which may confift in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to thofe jewels. In short, as the logicians speak, corporeal hereditaments are the fubftance, which may be always feen, always handled: incorporeal hereditaments are but a fort of accidents, which inhere in and are fupported by that fubstance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily fenfes. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for inftance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtlefs of a corporeal nature, yet the annuity itself, which produces that money, is a thing invifible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we confider the pro

a Co. Litts 19, 20.