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abandoned in this country. The owner of the soil has the right, in the absence of boundary agreements to the contrary, to dig as deep and to build as high as he sees fit, so long as he conforms to the lines of his own boundaries, and does not undermine or injure the land or buildings of his neighbor.
Real property consists of land and structures permanently affixed to land.
Personal property consists of such things as are movable and may attend the person of the owner wherever he may go, as goods, money, jewels, chattels and the like.
Mixed property is that kind which is not altogether real nor personal, but partakes of the nature of both, such as heirlooms, pews in a church; and title deeds to an estate have been held to be mixed property.
Corporeal property consists of such material things as may be apprehended by the senses, as lands, goods, animals, and may be the subject of actual manual possession and capable of being transferred by delivery.
Incorporeal property is that which consists in legal right merely, as choses in action, rights of way, easements and the like. It is a legal right which one man has, not to the property of another, but in it; as in the case of a right of way, the land is owned and in possession of one as corporeal property, while another has the single right of passing over it, which is incorporeal property. Both are valuable property rights and the owners of them respectively will be protected in their enjoyment by the courts. Incorporeal property may be acquired by agreement, or it may be created by operation of law, as when one sells a parcel of land in the center of his own field, the buyer by operation of law acquires a right of way over the seller's other land which surrounds his.
$ 54. Real property.—The law of real property, as it exists to-day in the United States, is full of intricacy. The commercial spirit of modern times has broken down many of the artificial barriers which the feudal system and the English laws of descent and tenures interposed to prevent the quick and easy transfer of landed estates. But enough of the old rules survive to confuse and perplex the student, and to tax the experienced lawyer, when he is called upon to decide concerning the rights of claimants to land. It is only intended here to give in outline some historical facts and general rules showing how and from what source titles to land are derived, and how they are transferred from one person to another.
$ 55. Titles in the United States. It is a fundamental principle in the English law that the sovereign was the original proprietor of all the land in the kingdom. The same principle holds good in the United States as to all lands which are known as public lands. By the terms of their charters, the original colonies which became states reserved the right when the Union was formed to hold and dispose of the lands within the boundaries of their respective grants independently of the nation. Virginia, by cession of parts of her territory to the United States, aban
doned her original claim, reserving to herself, however, certain portions now in the states of Kentucky and Ohio, which she bestowed upon her soldiers who served in the Revolutionary War. Titles to lands lying within the territories acquired by purchase and annexation since the formation of the Union, such as Florida, Louisiana, Texas, California, New Mexico, Arizona, Colorado, are held and derived from two sources.
§ 56. Land acquired by treaty.-In acquiring these territories, so far as they were acquired by treaties and annexation, the United States agreed that titles held by grant from Spain, France, and Mexico should be respected and treated as valid. Lands not granted at the date of the treaties became part of the public lands, and titles to such lands are derived from the United States.
$ 57. Indian titles. — In the fifteenth and sixteenth centuries, when navigators from Europe made their discoveries upon the American continent, Spain, France, Holland and England tacitly agreed that discovery and occupancy gave title to the first comer, not only against other European nations, but against the native Indians. The absolute title of the Indians “ yielded to the military, intellectual and moral power of the European immigrants.” The Indians were allowed to occupy, but not to dispose of the land, except to the government within whose boundaries they lived. This rule grew out of the necessities of the case. To have allowed the Indian tribes to make transfers of land to other nations would have been a mischievous source of controversy and war. The policy of our government has been
to treat the Indians as wards. Whether our duty as guardian has been discharged with a due regard to the rights of our wards is a matter upon which opinions differ. Little by little, however, the Indian titles have been extinguished, and the Indians themselves have been confined to certain reservations, until now the lands they are permitted to occupy are a “ mere patch” when compared to the immense domain which they used or possessed when the Europeans discovered the continent.
$ 58. Injustice to Indians.—The whole subject of the relations of our government to the Indians, and of the extent and nature of their title to the lands occupied by them, has been treated so thoroughly and exhaustively in the opinions of Chief-Justice Marshall and Mr. Justice McLean, in the case of Worcester v. The State of Georgia, 6 Peters, p. 515, that it is deemed better to refer the reader to that source of information, rather than to attempt to set forth here what at best would be but an imperfect statement of it. In closing his lecture upon this topic, Chancellor Kent says: “The federal gove ernment, since the period of our independence, has pursued a pacific, just and paternal policy toward the Indians within their broad territories. It has insisted on no other claim to Indian lands than the right of pre-emption on fair terms; and its plan of permanent annuities as an ingredient in the consideration of purchases has been attended with beneficial effect. Our government has labored to protect the Indians from wars with each other, from their own propensity to intemperance, and from the frauds and injustice of the whites, and to impart to