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his property after his own decease. Whereas the law of na. ture suggests, that on the death of the poffeffor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the pofitive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to fome particular person, who from the result of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed : and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as folid a foundation, as the right of the devisee would have been, supposing such requisites were observed. . ,
But, after all, there are some few things, which, note withstanding the general introduction and continuance of property, must still unavoidably remain in common; being fuch wherein nothing but an usufructuary property is capable of being had : and therefore they still belong to the first occupant, during the time he holds poffession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences : such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition : which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in poffeffion, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seise and enjoy them afterwards.
AGAIN; there are other things, in which a permanent. property may sublist, not only as to the temporary use, but
also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obiviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such also are wrecks, eltrays, and that species of wild animals which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With tegard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, [ 15 ] the law has therefore wisely cut up the root of diffension, by vesting the things the miselves in the fovereign of the state : or else in his representatives appointed and authorised by him, being usually the lords of manors(5). And thus the legislature of England has universally promoted the grand ends of civil fociety, the peace and security of individuals, by steadily purfuing that wife and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.
(5) The learned Judge has frequently repeated in his commentaries, that all the game belongs to the king, or to his grantees, being usually the lords of manors. This is a doctrine which the editor is obliged to controvert. His reasons and authorities will be stated at large in a note to page 419.
CHAPTER THE SECOND.
OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.
THE objects of dominion or property are things, as con
1 tradistinguished from perfons : and things are by the law of England distributed into two kinds; things real, and things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables ; which may attend the owner's person wherever he thinks proper to go.
In treating of things real, let us confider, first, their se. veral sorts or kinds; fecondly, the tenures 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, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptai ation it is only applied to houses and other buildings, yet in it's original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubftantial 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 a : and, as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements b. But an hereditament, says fir Edward Coke , 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 comprized under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditamento,
HEREDITAMENTS then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist 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 Gir Edward Coke', comprehendeth in it's legal signification , any ground, foil, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. a Co. Litt. 6.
03 Rep. 2. b Ibid. 19, 20.
€ ; Init. 4. ci Inft. 6.
It legally includeth also all castles, houses, 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 species of land, which may seem a kind of folecism; 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 it's capacity, as, for so many cubical yards; or, by fuperficial measure, for twenty acres of water ; or by general defeription, 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 by the law of nature ;. fo that I can only have a temporary, tranfient, 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.
LAND hath also, in it's legal signification, 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 surface 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 fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are
| Browal. 142.