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article annexed; the relation of the party making the annexation, whether owner, tenant, etc. ; the structure and mode of annexation; the purpose or use for which the annexation has been made.
$ 65. Boundaries.—Land has an indefinite extent, upwards and downwards. No man has a right to erect a structure, any part of which overhangs the the land of another. If a tree planted on one man's land extends its branches over the adjoining premises, to the injury of another, the owner is responsible for the damages caused thereby, and the injured party may remove so much of it as overhangs his premises. A grant of land carries everything on it or beneath it, whether it be woods, houses, waters or metals,-in a word, it carries everything terrestrial.
$ 66. Boundary lines may be fixed by agreement. They may be established by prescription. They may be settled by the conduct of the parties amounting to an estoppel. In the absence of these the law fixes boundary limits as a matter of policy, and in the interest of peace. A grant of land bounded by a navigable river, where the tide ebbs and flows, extends to high or low-water mark, as the water rises and falls, and it has been held that the intermediate space might be exclusively appropriated by the owner of adjacent lands for wharves and buildings.
§ 67. Land bounded by highways.—Where a pub. lic road is the boundary line, the owners of land at each side own to the center of the road, and they have the exclusive right to the soil, subject to the right of passage by the public, and may use it in any way which does not impair the public right. This rule as to ownership to the center of the road will always prevail unless there is an express abandonment of the right by the owners. If, under the power of eminent domain, the highway is appropriated in whole or in part for any other public use, the adjacent land-owners are entitled to compensation for such increased burden.
§ 68. Appurtenances.—In grants of land, the phrase, “and all appurtenances,” is commonly used. An appurtenance is a thing belonging to another thing and which passes as incident to the principal thing. It is inferior to the thing granted, but of the same nature. Land can not be appurtenant to land, and a conveyance of land bounded by the line of an adjoining highway will pass no title to the soil over which the highway passes, but the grant will give the grantee a perpetual right of way as an appurtenance. As a general rule, a grant of land carries with it as appurtenances all apparent benefits and easements that are incident to it and necessary to its beneficial enjoyment, and which the grantor had full power to convey; and they pass, whether acquired by grant or prescription, or originally incident to the estate. A grant of a mill with appurtenances covers the head of water by which it runs, also all water rights and privileges used with and incident to it. It is not necessary to use the term, “appurtenances,” to convey rights that actually are such, for they pass as incident to the land, whether that term is employed or not.
§ 69. Kinds of incorporeal property.-Judge Cooley criticises Blackstone's definition of an incorporeal hereditament as “a right issuing out of a thing corporate (whether real or personal) or concerning or annexed to, or exercisable within the same," and defines it as “any intangible right which is capable of being inherited, though it may exist wholly independent of any corporeal property whatsoever.”
Blackstone says there are ten sorts of incorporeal hereditaments : advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents.
§ 70. Advowsons.-Advowson is the right of presentation to a church, the right of the lord of a manor to designate what parson shall minister to the parish and enjoy the living appurtenant to it. This subject has no place in American law, under which all religious societies are purely voluntary, and pastors are chosen as the people see fit, or as the usages of the particular ecclesiastical organizations prescribe.
§ 71. Tithes.—Strictly speaking, tithes are a tenth of the annual increase and profits of lands and stock upon lands and the personal industry of the inhabitants. In all countries where there are religions established and maintained by public law, provision is made for the support of the clergy. It is supposed that tithes were introduced in England in the sixth century, when Augustin, the monk, planted Christianity among the Saxons. The first decree enforcing the payment of tithes was made A. D. 786. At first, these tithes were paid to the bishops, who allotted them among the clergy of their dioceses, but when the bounds of the parishes became definitely fixed, the tithes were paid directly to the priests of the several parishes. Sometimes, by agreement between the land-owner and the parson, some land or other recompense was given in lieu and satisfaction of tithes. And sometimes by prescription certain lands or persons were exempted from the payment of tithes. A modus, as it is called, was a special manner of tithing, whereby the general law was altered as where something in lieu of the tenth part of the annual increase was paid to the parson. To make a modus good, it must be certain and invariable. The thing paid must be beneficial to the parson. It must be different from the thing compounded for. It must be as durable as the tithes discharged by it. Although interesting as a historical study of the growth and progress of the law, it is not deemed wise or profitable to consider more fully in this place these matters which do not enter into the practical administration of the law in this country.
$ 72. The right of common.—This is defined to be a profit which a man hath in the land of another. By the English law, the lords of manors were required to allow certain of the manorial lands to remain unenclosed, upon which the inhabitants could
pasture what were called commonable beasts, which were either beasts of the plow, or such as manure the ground. As lands became more valuable, the lords of the manors began to enclose the commons, and parliament in the reign of George III enacted a law which has been repeatedly amended, regulating the inclosure of commons. The right of common in the United States is a narrow right. In tide-waters the right of taking fish is common to all citizens. In rivers where the tide does not ebb and flow, it is said that the proprietor of the bank has an exclusive right of fishery to the thread of the stream, but it has been held that in large navigable rivers, such as the Susquehanna, the public at large have a common right of fishery. For the taking of fish where the public have the right, no person can lawfully go upon the land of another without license. In ordinary streams within the boundaries of a man's land, or where the stream is the dividing line between two proprietors, no one has a right to fish without the license of the riparian proprietors.
Kent sums up the American doctrine thus: The right of fishing in navigable or tide waters below high-water mark is a common right. In streams not navigable, the owners of adjacent lands have the exclusive right of fishing each on his own side. Such right is held subject to the public use of the waters as a highway and to the free passage of fish.
§ 73. Right of way.—The right of way is the right of going over another man's land. Ways are either public or private. A public way may be established either by the dedication of the owner of the land, oi by the appropriation of a man's land for the purpose