« SebelumnyaLanjutkan »
them some of the essential blessings of civilization. The Indians of the present day are a feeble and degraded remnant of a once proud, spirited, enterprising race, and are hastening to annihilation.” The author of the book entitled, “A Century of Dis. honor,” who spent many years with the Indians in the western territories, makes the statement that our gove ernment has broken all the treaties it ever made with the western tribes, and that so far from pursuing “a pacific paternal policy,” it has played the role of a very cruel step-father in its intercourse with them.
$ 59. Definitions.-Having considered the beginning or foundation of the titles to land in this country, we come now to speak of the interests which individuals may own in land. Things real consist of land, tenements and hereditaments. The term land comprehends any ground, soil or earth. It also includes all buildings erected upon it, though cases may arise where by agreement of parties, or by the nature of the structure and the intention with which it was placed upon the land, it may have and retain the character of personal property. Under the term land is included the water which covers the land, so that we do not speak of so many acres of water, but of so many acres of “land covered by water,” which was the phrase used in pleading and conveyances, but now the term land will cover and include all water, whether of lake or stream, within its bounds. Tenement, in its original, proper and legal sense, signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible or of an unsubstantial, ideal kind. But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatever may be inherited, be it corporeal or incorporeal, real, personal or mixed. Hereditaments are of two kinds, corporeal or such as affect the senses, such as may be seen and handled by the body; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.
$ 60. Lands bounded by streams.—The grant of a stream of water by that name will not pass the land over which it runs, but the grant of a parcel of land passes the property in a stream of water which runs over it as much as it does the property in the stones at the bottom of the stream. One who owns land on both sides of a stream owns the whole bed of the stream. When a stream bounds the lands of two, each owns to the thread of the stream. The owner of land over which water flows has the right to use the water without diminution or obstruction, except so far as the reasonable use of the same by other riparian owners may affect it. Strictly speaking, he has no property in the water itself, but a simple use of it while it passes along. No proprietor of land bounded by a water-course has a right to use the stream to the prejudice of another proprietor. He may not dam it so that it overflows the lands of those above him, except (1) where he gets their permission, or (2) where for certain public uses the statute authorizes him to do so upon compensating the owners for the injury. He may not foul the stream by carrying on a noxious trade which poisons the water or makes it unfit for use.
Where in a grant land is described as being bounded by a stream, the grant goes to the center or thread of the stream. Where it is bounded by the sea-shore or a navigable river, it stops at low-water mark. In some states, where a boundary line is described as going down a creek “ with the meanders thereof," the boundary is the water's edge at low-water mark. Where alluvial deposits are made upon the banks of a fresh-water stream, and the accretion is gradual, the lines of the riparian proprietors follow the shifting thread of the stream, but if the alteration is made suddenly the ownership remains according to the former bounds; and if the river should forsake its channel and make an entirely new one in the lands of the owner on one side, he will become the owner of the entire stream enclosed by his land.
§ 61. A proprietor of an island in a water-course owns to the thread of each branch of the stream, which in its natural course divides it from the main land. And where a water-course is thus divided by an island, and the smaller portion descends on one side, the proprietor by whose land such smaller quantity flows is entitled to no more water than naturally runs between his bank and the island.
$ 62. Islands.- Where islands are formed in the sea or a navigable river, they belong to the sovereign ; in rivers not navigable and above where the tide ebbs and flows, they belong to the owners of the adjoining land. If there be an island exactly in the middle of the stream, it is equally divided between the two proprietors. But if one portion approaches nearer to one side of a stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. When a river is the boundary line between two nations or states, if the original property be in neither and there be no agreement about it, each holds to the middle of the stream. But where one state is the original proprietor, and grants the territory on one side, as in the cession by Virginia of the territory northwest of the Ohio river, it retains the river within its domain and the boundary of the lands ceded extends only to low-water mark.
§ 63. Fixtures.—There is much controversy as to what is a proper definition of a fixture. A fixture is something annexed to land, as buildings, machinery or the like. Sometimes the manner and purpose of the annexation makes it a part of the realty, sometimes though annexed in a permanent manner it retains its character of personalty. The chattel must not only be laid upon the land, it must be annexed, set into, or fastened upon it, to become a part of the realty. Nor will every such annexing make it part of the realty. If a tenant puts a building or machinery upon land with the express agreement with the landlord that at the end of the term it may be removed, it does not become a part of the realty, unless during or at the end of the term he fails to remove it. But where the duration of the tenancy is uncertain, the law allows the tenant a reasonable time for removal of fixtures after the end of the tenancy. The general rule is that in the absence of a valid agreement to the contrary, fixtures once annexed become part of the land, so that conveyances, mortgages or other liens upon the land cover them. When the tenant puts up trade fixtures to be used in connection with his particular business, it has been held to be such a declaration of intention as to prevent their becoming part of the land. The old rules have been relaxed, so that it may be said that as between landlord and tenant, the latter may remove all such fixtures of a chattel nature as he himself has erected on the premises for ornament, domestic convenience, or to carry on trade, provided that such removal may be made without material injury to the freehold. The rule is modified sometimes by the usages and customs of particular localities or trades.
As between vendor and vendee, the rule is that all fixtures attached to the land by the vendor, and on the land at the time of the sale, pass to the vendee, unless they are expressly reserved by the terms of the contract of sale.
§ 64. As between heir, devisee and executor, the rule is that fixtures annexed to the land by the testator go to the heir or devisee, and the executor has no right to them, unless the intent of the testator to have them treated as personalty has been plainly expressed. In an early case in Ohio the following were enumerated as the requisites of a fixture: (1) That it be actually annexed to the realty, or something appurtenant thereto. (2) That it be appropriate to the use or purpose of that part of the realty with which it is connected. (3) That it be intended by the party making the annexation to be a permanent accession to the freehold. What the intention was in making the annexation is inferred from the following facts, viz., the nature of the