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Things really are
In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenure by which they may be holden; thirdly, the estates 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 several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature; being a word of_a very extensive signification (3), as will presently appear more at large. Tenement is a word of still greater extent, and though in its vul[ * 17 ] gar acceptation it is only applied to houses 'and other buildings, yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent (4) nature; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like (a): and, as lands and houses are tenements, so is an advowson a tenement (5); and a fran(o) Co. Litt. 6.
The latter, only, it will be seen, come
(3) Whatever may be the subject
(4) See note (1) to last page.
(5) In the case of Hopewell v. Ackland, as reported in 1 Salk. 238, Trevor, C. J., is represented to have said, that " advowsons in gross are not comprised in the words lands and tenement:" This dictum, however, does not appear in the report of the same case, in Comyn, 168, though it cer
tainly was cited, without any expression of disapprobation, in Pocock v. The Bishop of Lincoln, 3 Bro. & B. 47; 6IVloo. 177; and in Hensley v. Langham, Ca. t. Talb. 144, Lord Chancellor Talbot said, " he was not clear that the word tenement did extend to such incorporeal hereditaments as advowsons:" but his Lordship by no means gave a decisive opinion on the subject; on the contrary, he said, "he did not think it necessary to enter into it at that time." The true ground, however, on which the judgment in Kentey v. Langham proceeded, was, that the advowson did not pass, under the words of the will in that case, only because what was given to the trustees was given to raise money, and none could be raised from a void church. This is so stated in the recent case of Gully v. The Bishop of Exeter, 4 Bing. 297, in which all the previous leading authorities are
Cruise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements (4). But an hereditament, says Sir Edward Coke (c),is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, or implement of furniture, which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament (d).
Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal (6). Corporeal con
(4) Co. Litt. 19, 20. (<0 1 Inst. 6. (<Z) 3 Rep. 2.
Hereditaments are of two kinds, corporeal and incorporeal.
considered; and, by the result, it seems to be satisfactorily established, that an advowson m grot* will pass in a will under the word tenement: it follows, a fortiori, that an advowson appendant to a manor lies strictly in tenure. The extra-judicial dictum in Hopewell v. Ackland, and the equally unnecessary declaration of uncertainty upon the subject expressed in Kensey ▼. Ixmgham, cannot have any weight when opposed to the numberless cases (many of which are adverted to .in Rennell v. The Bishop of Lincoln, 3 Bing. 233; 11 Moo. 139; 7 Barn. & Gress. 147; 9 Dowl. & R. 8*13;) in which parties are judicially declared to be seised as in fee, or in tail, of an advowson: for "seisin is a technical term, to denote the completion of that investiture, by which the tenant was admitted into the tenure." (Per Lord Mansfield, in Taylor on dem. Atkins v. Horde, 1 Bur. 107).
Till the church becomes void, it is. impossible, certainly, to acquire any thing more than a seisin in law of an sdvowKon; but presentation to the church, when it is void, is allowed to be equivalent to a corporeal seisin of the land. (1 Inst. 29 a.) An advowson,
then, is a tenement, of which seisin
(6) Mr. Fearne, in his learned
Corporeal hereditaments consist wholly of substantial and permanent objects.
sist of such as affect the senses; such 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 consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke (e), comprehendeth in its legal signification any ground, soil, or earth whatsoever (7); as arable,
a nature in some measure intermediate between the two already noticed, there is a third application of the word hereditaments, wherein it is used to denote inheritable rights respecting lands, or something issuing therefrom, or exercisable therein, or having at least some local connexion or relation separate and distinct from the enjoyment of the lands themselves. Hence we obtain the division of hereditaments into real, personal, and mixed. Besides this distribution, there is another general division of hereditaments into corporeal and incorporeal. The first description is confined to those subjects of property which are comprised under the denomination of things real. Incorporeal hereditaments are such as derive the denomination of hereditaments, not from the things themselves, but from the inheritable rights of which they are the subject: for rights are of an incorporeal nature. Incorporeal hereditaments therefore comprise the two divisions of mixed and personal hereditaments already noticed, and under the same description I would include such real hereditaments as consist of rights to the future enjoyment of lands, divided from the present possession j for though corporeal hereditaments are their subject, yet, whilst the rights remain distinct from the right of actual possession, I see nothing sub
stantial in their nature; on the contrary, they seem clearly to fall within that predicament which I take to be the criterion of an incorporeal inheritance, tangi non potest, nee videri. There are also other properties common to them with other estates, which are universally arranged in the class of incorporeal inheritances; for instance, they do not lie in livery, and cannot be transferred without deed, except in some special instances, similar to some of those in which corporeal inheritances may be passed at common law, without livery of seisin."
It is proper to add, that one of the opinions held by Mr. Fearne in the work from which the above quotations are taken, and where he laid it down that attornment was necessary to perfect a grant of a reversion, in hereditaments, has been clearly refuted (in 2 Prest. on Abst. 85, in 2 Saund. on Uses, 38, and in Sugden's note to Gilb. on Uses, 226); the objection, however, does not at all apply to any of the passages here cited.
Mr. Fearne's criterion of an incorporeal hereditament, he adopted from Lord Coke's 1st Instit. 9 a. And see our author's account of the same subject, in the chapter next following, p. 20.
(7) Mr. Cruise, (in his Dig. 4, tit. 32, ch. 20, p. 321,) says, "the word land, strictly taken, only signifies arable land. For in every antient pracipe
meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, 'houses, and [ * 18 ] other buildings; for they consist, saith he, of two things ; prehended"Si" land, which is the foundation, and structure thereupon: so "\*£TM that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, 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 (f). For water is a moveable wandering thing, and must of necessity continue common (8) by the law of nature; so that I can only have a temporary, transient, usufructuary, 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.
(/) Brownl. 142.
we constantly find the words terra, cular portion which he might have ab
pratum, et pasture —land, meadow, stracted from the streams, and of
and pasture. (And see Silly v. Silly, which he had the possession. We,
e vent. 260.) But this confined (the Court of K. B.) think no other
meaning of the word land was only interpretation ought to be put upon
adopted when used in a pratcipe in an the passages in Blackstone. It ap
adversary suit." pears to us there is no authority in
(8) See ante, p. 14, and pott, p. our law that the first occupant (though
395. In Mason v. Wilson, 5 Barn. & he may be the proprietor of the land
Adol. 24, and 2 new & Man. 764. above) has any right, by diverting the
C. J. Denman said, " the Roman stream, to deprive the owner of the land
law considered running water, not as below of the advantage of the natural
a human racans, but as public or flow of water thereto; unless he has
common, in this sense only, that all gained the right to divert the stream
might drink it, or apply it to the ne- by grant, or by the legally prescribed
eessary purposes of supporting life; length of enjoyment." And see to the
and that no one had any property in same effect, Wright v. Howard, 1 Sim.
the water itself, except in that parti- & Stu. 203.
Extent of its legal signification.
Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ail ccelum, 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 surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries (9). So that
(9) The passage in the text requires a little qualification. The result of experience in the mining countries is not uniform. In Curtis v. Daniel, 10 East, 274, Bayley, J., held, that "although the presumption of law, generally speaking, is that all mines under freehold belong to the freeholder, in Cornwall it might be otherwise as to tin mines, which are governed by peculiar laws and customs." On a motion for a new trial, Lord Ellenborough, C. J., asked, "Why may there not be two customs, one for the lord of the manor to have the tin, and another for the tenants to have the copper under their estates?" And it is perfectly well established, that, all mines of gold and silver within the realm, though in the lands of subjects, belong to the Crown by prerogative, with liberty to dig and carry away the ores thereof, and with all other such incidents thereto as are necessary to be used for getting the ore. (The Queen and The Earl of Northumberland, in the case of Mines, Plowd. 336.) However, as in this country no mines have been discovered which, properly speaking, can be described as gold and silver mines, this prerogative is not very valuable. A slight intermixture of gold or silver will not constitute a royal mine, where the bulk of the ore is of baser metal. A majority of the judges did, indeed, in the case cited, hold a different opinion; but as this rule would have operated as a great discouragemeut to any subject to open any mine whatsoever, it
was enacted by 1 Gul. & Mary, sess. 1. c. 30, s. 4, that no mine of copper, tin, iron, or lead, should be adjudged to be a royal mine, although gold or silver might be extracted out of the Minn'. The act was explained, and a right of preemption secured to the Crown, by 5 & 6 Gul. & Mary, c. 6. The rate of purchase at which that right might be exercised, was altered by 55 Geo. III, c. 134. (See Vol. I. p. 294.) From the same case in Plowden it may also be collected, that, if in a grant of an estate by the Crown there be a bare reservation of royal mines, without any proviso for right of entry, (which would be essential in the case of a private individual,) it is competent to the Crown to grant a license to any person to come upon the estate so granted, and dig up the soil in search of such mines. Lord Hardwicke, it is true, (in Lyddal v. Weston, 2 Atk. 20,) held a contrary doctrine; but Lord Eldon (in Seaman v. Vawdrey, 16 Ves. 393), repudiated Lord Hardwicke's attempt to unsettle what had been resolved by the twelve Judges, in the case in Plowden.
The freehold of customary lands, and lands held by copy of court roll, is in the lord of the manor. In such lands, unless the act be authorized by special custom, (Whitchurch v. Hoiworthy, 19 Ves. 214; S.C.4 Mau. & Sel. 340,) it is neither lawful for the customary tenant, or copyholder, to dig and open new mines, without the license of the lord of the manor; nor for the lord, without the consent of