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BOOK II. his property after his own deccafe. Whereas the law of na ture fuggefts, that on the death of the poffeffor the estate should again become common, and be open to the next occupant, unless otherwife ordered for the fake of civil peace by the pofitive law of fociety. The pofitive law of fociety, which is with us the municipal law of England, directs it to vest in fuch perfon as the last proprietor fhall by will, attended with certain requifites, appoint; and, in defect of fuch appointment, to go to fome particular perfon, who from the refult 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 perfon appointed: and, where the neceffary requifites are omitted, the right of the heir is equally ftrong and built upon as folid a foundation, as the right of the devifee would have been, fuppofing fuch requifites were observed.

BUT, after all, there are some few things, which, notwithstanding the general introduction and continuance of property, muft ftill unavoidably remain in common; being fuch wherein nothing but an ufufructuary property is capable of being had and therefore they ftill belong to the first occupant, during the time he holds poffeffion 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: fuch alfo are the generality of those animals which are faid to be ferae naturae, or of a wild and untameable difpofition: which any man may feise upon and keep for his own ufe or pleasure. All these things, fo long as they remain in poffeffion, every man has a right to enjoy without difturbance; but if once they escape from his cuftody, or he voluntarily abandons the use of them, they return to the common stock, and any man elfe has an equal right to seise and enjoy them afterwards.

AGAIN; there are other things, in which a permanent. property may fubfift, not only as to the temporary ufe, but

alfo

also the solid fubftance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general diftribution of lands; fuch also are wrecks, eftrays, and that fpecies of wild animals which the arbitrary conftitutions 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 first occupancy, [ 15 the law has therefore wifely cut up the root of diffenfion, by vefting the things themfelves in the fovereign of the ftate: or elfe in his reprefentatives appointed and authorised by him, being usually the lords of manors(5). And thus the legislature of England has univerfally promoted the grand ends of civil fociety, the peace and security of individuals, by steadily purfuing that wife and orderly maxim, of affigning 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 èditor is obliged to controvert. His reafons and authorities wil be ftated at large in a note to page 419.

CHAPTER THE SECOND.

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

THE

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, first, their several 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 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 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 houfes 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 2: and, as lands and houses are tenements, so 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 hereditament, fays 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 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 alfo an hereditament ".

HEREDITAMENTS then, to use the largest expreffion, are of two kinds, corporeal and incorporeal. Corporeal confift of such 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 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, says 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 alfo all castles, houses, and other buildings for they confift, 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 paffeth therewith. It is obfervable that water is here mentioned as a fpecies of land, which may feem a kind of folecifm; 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 so many cubical yards; or, by fuperficial measure, for twenty acres of water; or by general defeription, as for a pond, a watercourfe, or a rivulet: but I muft bring my action for the land that lies at the bottom, and muft 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, tranßent, 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 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