CHAPTER II.

THE DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY.

THE object of this chapter is only to point out in a general way the difference between the two kinds of property, reserving the more minute consideration of personal property to later chapters. The importance of the distinction is largely due to the fact that the two kinds of property are governed by different systems of law. Real property is largely developed out of the feudal system, which has no relation to personal property. The latter grew up to a considerable extent from the customs of merchants (lex mercatoria). It is largely influenced by the Roman law, and by usages not merely in England but in other parts of Europe. Much of it has been worked out by decisions of the courts within a comparatively few years. The law of real property is in its theory antiquated, though modified by the necessities of modern times. It is local in its nature, and must be studied, where minute knowledge is required, in rules locally prevailing in the State where the land is situated. It is accordingly a leading rule that a conveyance or will of real property, wherever made, must comply with the forms prevailing in the place where the land is situated; while a sale of personal property is in general governed by the law of the place where the sale is made, and a will of the same kind of property by the law of the place where the testator is domiciled at the time of his death.

Even the Roman law, though largely assimilating the rules governing real and personal property, distinguished for some purposes between movables and immovables. This is a distinction based on the inherent difference between the two kinds of things. Some branches of law are thus peculiar to immovables, such as the law of "servitudes or rights which an owner of land or an individual may have in the immovable property of another. The general idea of real property is that it is immovable, a portion of the earth, or something connected with it or attached to it. Still, there are exceptional things, which in fact are movable, but for legal reasons are deemed to be real, such as title deeds of an estate,

doves in a dove-house, fish in a fish-pond, etc. Personal property on the other hand, is in general movable. There are, however, certain interests in land classed among chattels and deemed to be personal, the principal instance being a lease for a definite number of years. The reason for this is historical and technical. Such interests originate in contract, and a contract is personal. Although a lease at present is an estate in land, yet its origin in contract is not lost sight of, and in this way it is for many purposes personal property.

Reference must also be made to a rule of equity jurisprudence, that an owner may so impress his intent or purpose upon property as by a mere direction, to convert it from one species of property to the other, without any actual change of ownership. Thus a testator may by his will direct his land to be sold and converted into money. It will then for many purposes be deemed to be money at the moment of his death. So if he directed in the same manner his money to be laid out in land, it would for many purposes be regarded as land, although it remained in the form of money. This is known as the doctrine of "equitable conversion." In some cases, a rule of law restores the property to its original character. This is termed "reconversion." The details of this subject may be found in works on equity jurisprudence.

Frequently a question arises whether the attachment or annexation of an item of personal property to land gives it the characteristics or qualities of real property. This question properly belongs to the law of real property where it is treated under the title of "Fixtures."

CHAPTER III.

THINGS NOT THE SUBJECT OF PRIVATE OWNERSHIP.

It is the general rule of law that things are capable of ownership. Such a theory is highly desirable since it tends to prevent rival and hostile claims and public disorder, as well as to promote efficiency in the production of wealth; still, there are certain items of much intrinsic importance that are not regarded as the subject of private ownership.

It is proper for the sake of clearness to distinguish between those things which are not usually the subject of private ownership, but which may become so by appropriation or occupancy, and those which cannot be acquired by a private person, at least by his own act. Of the former class are wild animals, precious stones or other articles found on the seashore, soil washed upon the shore of land already under private ownership (alluvion), and the like. The other class of things, and these are referred to in the present chapter, are the air, running water, the sea, and the seashore below a prescribed line and also property permanently devoted to public or religious uses and declared by law to be inalienable. Of these, some are incapable of appropriation from the necessity of the case or by the common consent of mankind; others by the local law of the country where the things in question may be.

This subject is a branch of the Roman law, and is treated in the Institutes of Justinian. As to instances of the first class, he says: "The following things are by natural law common to all,the air, running water, the sea, and consequently the seashore,. . . all rivers and harbors are public, so that all persons have a right to fish therein. The seashore extends to the limit of the highest tide in time of storm or winter. Again, the public use of the banks of a river, as of the river itself, is part of the law of nations; consequently every one is entitled to bring his vessel to the bank and fasten cables to the trees growing there and may use it as a resting place for the cargo as freely as he may navigate the river itself. But the ownership of the bank is in the owner of the adjoining

1 Book II., Tit I.

land, and consequently so too is the ownership of the trees which grow upon it. Again, the public use of the seashore, as of the sea itself, is part of the law of nations; consequently every one is free to build a cottage upon it for purposes of retreat as well as to dry his nets and haul them up from the sea. But they cannot be said to belong to any one as private property, but rather as subject to the same law as the sea itself with the soil or sand which lies beneath it." Much of this passage is a summary of the common law, though it is not true in that system that all rivers are public, nor that a navigator upon public waters can fasten cables to trees, etc., belonging to riparian owners. While bays and harbors and the beds of navigable rivers may be public, yet the legislature frequently appropriates them to the use of private owners, as by authorizing the construction of wharves, etc., or grants, perhaps, a right to plant and cultivate oysters on the bed of navigable waters within its jurisdiction. It may also be remarked that water itself from a running stream may sometimes become the subject of private appropriation, as for example, in the form of ice cut and stored in ice-houses. Such ice has all the qualities of property. It may even be the subject of larceny.2 In the case cited, the ice was not private property while in the river from which it was taken.

It was also a rule of the Roman law that property devoted to sacred or religious purposes was not the subject of individual ownership. This principle was carried very far. If property was once regularly consecrated it became inalienable, except that if movable it could be sold for the redemption of captives, the support of the poor in time of famine, and the payment of church debts. Finally, land could be made, as it were, quasi sacred by its full owner burying a dead body in it, or by being buried in it himself. It was not fully "sacred" in this case, for it remained private property, but could not be diverted from the purpose to which it had been put.3

There is no such doctrine in the common law. Private property cannot be withdrawn from commerce in this manner, except in accordance with the law of "charitable trusts," to be hereafter noticed.

1 Moyle's Translation, Oxford: Claren- and closely resembling religious purposes. don Press, 1883, vol. 2, p. 36.

2 Ward v. The People, 6 Hill, 144. * 1 Moyle's Institutes, note 8, p. 185. The underlying thought here seems to have been that these purposes were public

Justinian says in another place that "there is very little difference between public and sacred things." (7th Novel of Justinian.)

CHAPTER IV.

THE QUALIFICATIONS OF OWNERSHIP.

THESE are derived from theories concerning the welfare or the interest of the State, or in other words, from the view that, under the circumstances, private ownership should not exist, or if it does exist, that it should be subverted in the particular instance. In this way ownership may be abridged or destroyed on the occurrence of some act or event, without any fault of the owner, but on public grounds. In such cases there is a limit to the generally absolute character of ownership. Still, ownership continues in full force until the decisive event happens.

The instances that may be grouped together under this general statement are these: (1) Theft, or other wrong-doing whereby ownership is subverted; (2) taxation; (3) eminent domain; (4) public necessity; (5) the police power. These will be treated under separate sections.

SECTION I. Theft or other Wrong-doing. It is a settled rule that in general an owner cannot lose his ownership without his consent. The prominent exception to this rule is the transfer of money, or its equivalents, including bank bills, bills of exchange, promissory notes, and checks payable to order and endorsed in blank by the payee, or similar instruments payable to bearer. These last three must be transferred before they are due, and all must be taken by a person paying value and acting in good faith. This statement does not include bills of lading of goods, nor certificates of stock in incorporated companies. It must be confined to instruments containing promises to pay money.

There is a distinction to be taken between a case of theft or other purely wrongful act, and that of fraud. By the term "fraud," is now meant the case where the owner intends to transfer the ownership, but is induced to do so by fraudulent representations. In this case there is the element of consent on his part, and until the transaction is repudiated the title is vested in the defrauder. Should he accordingly transfer to an innocent pur

1 Saltus v. Everett, 20 Wend. 267.