and whoever has the fee in the surface presumptively owns everything of a permanent nature under or over it. Notwithstanding it is competent for the owner to convey the mines or quarries by a separate grant vesting in one person a freehold in the soil and in another a freehold in the mines or quarries and to sever the ownership of the surface from the ownership from that which is under it, there may exist a double ownership or two freeholds in the same parcel of land. Louisville & N. R. Co. v. Boykin, 76 Ala. 560, 563 (citing 2 Washb. Real Prop. 375). The word "land" includes not only the soil, but everything attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences. Crawford Co. v. Hathaway, 93 N. W. 781, 788, 67 Neb. 325, 60 L. R. A. 889, 108 Am. St. Rep. 647 (citing McGee Irrigating Ditch Co. v. Hudson [Tex.] 22 S. W. 967). Anderson's Law Dict. says that the word "land" comprehends all things of a permanent and substantial nature, being a word of very comprehensive significance. Act Feb. 22, 1851, pp. 64, 65, is entitled "An act for the benefit of William Jewell College. Certain lands owned by William Jewell College exempted from tax." And section 1 provides that "all the land and improvements thereon now owned by the William Jewell College * ** and all the lands that may hereafter be granted or devised to said college, or any other institution of learning in this state, for the benefit of education, be, and the same are hereby, exempted from all taxes so long as said lands may be owned by said college." Section 2 releases from delinquent taxes the "land" belonging to the college in the counties named, and * * * section 3 makes it a misdemeanor to willfully injure or destroy timber, etc., from any of the lands belonging to the college. The entire endowment fund of the college was in lands when the act was passed, the colleges of that time being generally endowed in land alone, and the charters of a number of colleges perpetually relieved them from taxation on all kinds of property. Held, that the word "land" as used in the act will be construed to include personalty, so that the college cannot be taxed on its endowment fund, consisting of personalty. State ex rel. Waller v. Trustees of William Jewell College, 136 S. W. 397, 399, 401, 402, 234 Mo. 299. The term "land" in statutes conferring power to condemn is to be taken in the legal sense, and includes both the soil and buildgs and other structures on it and all interts therein. White v. Cincinnati, R. & M. R. R., 71 N. E. 276, 278, 34 Ind. App. 287 (quoting and adopting definition in Lewis, Em. Dom. [2d Ed.] § 285). sense, and includes both the soil and buildings and other structures on it, and any and all interests therein." In assessment of damages in proceedings for condemnation of land, the appraisers should value the land taken with the buildings on it, and it will be presumed that the buildings were included in the award. Stauffer v. Cincinnati, R. & M. R. R., 70 N. E. 543, 544, 33 Ind. App. 356 (quoting Lewis, Em. Dom. [2d Ed.] § 285; citing Brocket v. Ohio & P. R. Co., 14 Pa. 241, 53 Am. Dec. 534; State v. Reed, 38 N. H. 59; Mills, Em. Dom. §§ 49, 223). The word "land" comprehends ground, soil, or earth, pastures; woods, spring, wells, lakes, ponds, and all things which have become a fixed part of the soil. The word "tenement," in its ordinary meaning, means a "house," which is the subject of tenure, and includes, not only corporeal hereditaments, which are or may be held, but also all inheritances issuing out of any of these inheritances, or concerning or annexed to or exercised within the same, though they lie "Tenement" is a word of not in tenure. greater scope than "lands," and though, in its vulgar acceptation, is only applied to houses and other buildings, yet, in its original, proper, and legal sense, it signifies anything that may be holden, provided it be of a permanent nature, whether of a substantial and sensible, or of an unsubstantial, ideal, kind. The term "hereditaments" includes rights unconnected with land, but generally used as the widest expression for real property of all kinds, being divided into real hereditaments, which are lands and tenements, and personal hereditaments, which are rights concerning neither lands nor tenements. As so defined, neither the term "tenement" nor "hereditament" includes in law a lease of lands for years. Orchard v. Wright-DaltonBell-Anchor Store Co., 125 S. W. 486, 494, 225 Mo. 414, 20 Ann. Cas. 1072. In common speech the nonmineral portion of land, the portion which covers and envelopes the minerals, is called the "surface" of the land, and the proprietor of land who devests himself of title to the minerals which it contains is still spoken of as the owner of the fee or of the surface or of the land. Kansas Natural Gas Co. v. Board of Com'rs of Neosho County, 89 Pac. 750, 751, 75 Kan. 335. The word "land," as a conveyance, carries every kind of property, right, and appurtenance which is legally embraced in that word, but what rights go to a patentee of land depend, not upon any supposed adjudication contained in the patent, but upon the general law of the state where the land is situated. City of Los Angeles v. Los Angeles Farming & Milling Co., 93 Pac. 869, 871, 152 Cal. 645. A will whereby testator devised farm "The term 'land,' in statutes conferring lands to his daughters for life, remainder in power to condemn, is to be taken in the legal' fee simple to their children, and whereby he provided that they might sell their respective, the "ties, tracks, poles, rails and switches" lands, proceeds to be reinvested in "lands" as such or apart from the franchise. Los to be held for the same use, and that pur- Angeles Pac. Co. v. Hubbard, 121 Pac. 306, chaser must see that the reinvestment was 308, 17 Cal. App. 646. made before acquiring title to land devised, did not require reinvestment in farm lands, but reinvestment could be made in city real estate; the word "lands" including every form of real estate. Clay v. Bogie (Ky.). 119 S. W. 737, 738. Statutory definitions "Gen. St. 1901, § 7342, defines the word 'land' in the phrases 'real estate' and 'real property' as including lands, tenements, and hereditaments and all rights thereto and interest therein, equitable as well as legal." Clarke v. Lawrence, 88 Pac. 735, 738, 75 Kan. 26. The vendee's right to specific performance of a contract to convey land is "lands" and "real estate" within the statute definition (Rev. St. § 4971, subd. 9), as including "lands, tenements and hereditaments and all rights thereto and interests therein.” The lands, on the vendee's death, descend at once, by operation of law to his children (Rev. St. § 2270, subd. 1). An administrator cannot sue to compel specific performance of a contract to convey land to his decedent, the price for which has been paid, where it does not appear that the administrator is in possession, or that the personal assets of the es As agricultural or grazing land The word "land" or "lands," as used in tate are insufficient to pay the debts. CarCode 1899, c. 13, § 17, cl. 16, relating to taxa-penter v. Fopper, 68 N. W. 874, 94 Wis. 146. tion, expressly includes lands, tenements, and hereditaments, and all rights thereto and interests therein, except chattel interests and chattels real. Harvey Coal, etc., Co. v. Dillon, 53 S. E. 928, 936, 59 W. Va. 605. Under Ky. St. 1909, § 458, providing that the words "real estate" or "land" shall be construed to mean any interest other than a chattel interest, and section 470, providing that no action shall be brought upon a contract relating to real estate unless in writing, a parol contract to board and care for the owner of a life estate in land in consideration of the use of the land is void, though board was furnished in reliance on the contract. Hampton v. Glass (Ky.) 116 S. W. 243, 244. Under the statutes declaring that the word “land," and the phrases "real estate," and "real property," shall include lands, tenements, hereditaments and all rights thereto and interests therein equitable as well as legal, and providing that lands not exempt by law shall be liable to be taken on execution, land held by an equitable title may be levied upon and sold by virtue of an execution. Poole v. French, 80 Pac. 997, 1000, 71 Kan. 391. Laws 1903, p. 376, relating to street openings, requires by section 15 that each lot, piece, or parcel of land be designated upon a diagram as a basis for assessments. Section 17 requires the amount of assessment to be set opposite each lot, piece, or parcel of land which under section 20 is made a lien upon the property assessed. These sections and sections 23 and 26, use the terms "property," "lands," and "each lot, piece or parcel of land," interchangeably. Held that, in requiring the superintendent of streets to assess the benefits from street improvements on the property of any street railroad within the assessment district, the word "property" was used in a limited sense and as referring to that species of property designated as "land," which as defined by Civ. Code, § 659, is "the solid material of the earth," and hence there was no authority for an assessment against "Lands of the state," as used in the title of act to promote public health, etc., by draining such lands, included agricultural lands. Sisson v. Board of Sup'rs of Buena Vista County, 104 N. W. 454, 458, 128 Iowa, 442, 70 L. R. A. 440. In Rev. Civ. St. 1897, § 4218fff, prescribing the classified free school, asylum, and public lands subject to sale to actual settlers, the terms "land" and "other lands" are used in the popular sense "as not embracing town lots, but meaning agricultural or grazing lands." Conn v. Terrell, 80 S. W. 608, 609, 97 Tex. 578. Building or other structure includes all castles, houses, and other buildAccording to Blackstone, "land" legally ings, for they consist of two things—land, which is the foundation, and the structure try title disclaimed any title or interest in thereupon. Where defendant in trespass to the land, but claimed title to a house standing thereon, the plea of the three-year statute of limitations was without application; the land legally including all houses. Fidelity Cotton Oil & Fertilizer Co. v. Martin (Tex.) 136 S. W. 533. An assessment under Pub. St. 1901, c. 79, 88 4, 8, authorizing an assessment on lands receiving special benefits from the construction of a sewer, for their just share for the cost of construction and maintenance, etc., recognizes the ownership of buildings on lands of another, and buildings so situate are real estate for the purposes of assessment, and are properly assessed to the owner thereof; such buildings being "lands." Granite State Land Co. v. Town of Hampton, 79 Atl. 25, 29, 76 N. H. 1. "Under the general tax law, and by the general understanding, the term 'lands,' when used with reference to assessments for purposes of taxation, includes with the land above or under water all constructions which have been erected upon or affixed thereto." In re City of New York, 76 N. E. 18, 19, 183 not only the land itself, but all buildings and N. Y. 245. Where one making an excavation in a lot negligently left it exposed to inclement weather for an unreasonable length of time without putting in foundation walls, thereby causing injury to a building on an adjoining lot by the caving in of the ground, he is liable to the adjoining owner for the injury to the building, though Rev. Civ. Code, 291, providing that each coterminous owner is entitled to the lateral support which his land received from the adjoining land, subject to the right of the adjoining owner to make proper excavations on using ordinary care, and taking reasonable precautions to sustain the land, and giving previous reasonable notice to the other of his intention to make the excavations, and section 187, defining "land" as the solid material of the earth, whatever may be its ingredients, give only the right to damages for injuries to the land itself, and not to buildings placed thereon. Hannicker v. Lepper, 107 N. W. 202, 203, 20 S. D. 371, 6 L. R. A. (N. S.) 243, 129 Am. St. Rep. 938. other articles and structures and superstructures erected on or under the same, where a turnpike company did not own the fee in the land, but owned a continuing easement therein for the maintenance of the pike during the life of the company's franchise, such easement, together with the corporation's tangible property, consisting of bridges, culverts, ditches, prepared roadbeds, and structures on the soil, were taxable to it as land. In re President, etc., of Albany & B. Turnpike Road, 87 N. Y. Supp. 1104, 1105, 94 App. Div. 509. Franchise of corporation Under Tax Law, § 2, subd. 3, defining the terms "land," "real estate," and "real property" to include land, underground railroads, including the valuation of franchises to construct and operate the same, and defining a "special franchise" to include the value of the tangible property of a corporation situated in or under or above any street, a corporation owning special franchises to operate an underground railroad under city streets owns special franchises subject to taxation, Easements and incorporeal heredita- though only so small a part of the railroad ments The word "land," as used in Code 1904, § 1105f (3-6), authorizing the condemnation of lands or any interest or estate therein, includes easements, and other incorporeal hereditaments, and all rights thereto and interest therein, and is synonymous with the terms "real estate" and "real property." Swann v. Washington Southern R. Co., 61 S. E. 750, 751, 108 Va. 282 (quoting 2 Bouv. Law Dict. 306). In an eminent domain statute which authorizes certain classes of public service corporations to condemn land for their use, the word "land" is comprehensive, and includes any interest in land, and under it an easement or right of way may be condemned. Pacific Postal-Telegraph-Cable Co. v. Oregon & C. R. Co., 163 Fed. 967, 969. The term "lands," as used in the con demnation statute, embraces all rights and easements growing thereout. South Bound R. R. v. Burton, 46 S. E. 340, 342, 67 S. C. 515. The word "land," as used in the Eminent Domain Act, is capable of including easements in its signification. McEwan v. Pennsylvania, N. J. & N. Y. R. Co., 60 Atl. 1130, 1131, 72 N. J. Law, 419. The word “lands" is not coextensive with the words "tenements and hereditaments," and does not comprehend incorporeal hereditaments. In re Handley's Estate, 57 Atl. 755, 757, 208 Pa. 388 (citing 2 Jarm. Wills, 382). Under Laws 1896, p. 796, c. 908, § 2, as amended by Laws 1899, p. 1589, c. 712, providing that the term "land" shall include, is constructed and in operation as is insufficient to meet operating expenses, taxes, and interest, and the franchises, if possessing a value, are taxable, though they are not used. People ex rel. Hudson & M. R. Co. v. State Board of Tax Com'rs, 127 N. Y. Supp. 918, 143 App. Div. 26. Laws 1896, p. 796, c. 908, as amended by Laws 1899, p. 1589, c. 712, § 2, subd. 3, defines the terms "lands," "real property," and "real estate" as including, besides the tangible property enumerated, the value of all franchises, rights, authority or permission to construct, maintain, or operate in, under, above, upon, or through any streets, highways, or public places, mains, pipes, etc. The term "real property" for the purposes of taxation seems to be limited to such intangible rights or franchises as relate to public streets or highways and to exclude by interference such as relate to public waters. People ex rel. Edison Electric Illuminating Co. v. Commissioners of Taxes & Assess ments, 110 N. Y. Supp. 833, 58 Misc. Rep. 249. The tax law (Laws 1881, c. 293), defining the terms, "land," "real estate," and "real property" as including "all surface, underground or elevated railroads," and the value of all franchises to construct or operate railroads, in, under, above or through streets, is not limited to street surface railroads only, but includes long distance surface steam railroads, and hence a franchise granted by the state to a steam surface railroad for its road in, under, above, or through streets is property, and a special franchise, and taxable. People ex rel. New York Cent. & H. R. R. Co. v. Woodbury, 133 N. Y. Supp. 135, 139, 74 Misc. Rep. 130, 145. Growing grain Growing crops of grain are fructus industriales, and Civ. Code, §§ 186-188, defining "land" as the solid material of the earth, whether soil, rock, or other substance, exclude growing grain, and only include such growing things as are annexed to the earth by roots, such as are deemed fructus naturales. Bjornson v. Rostad (S. D.) 137 N. W. 567, 570. Highway, street, or right of way Mine The word "lands," as used in a statute governing descent and distribution, which provides that a surviving spouse shall be entitled to an estate for life in the lands of an intestate leaving issue, remainder to such issue, includes a mine open at the time of the vesting of the life estate, and such mine is, under the statute, inherited as lands by the life tenant. Lone Acre Oil Co. v. Swayne (Tex.) 78 S. W. 380, 383. The term "land," as used in statutory enactments, means and includes mines and mining claims. Bradford v. Morrison, 29 Sup. Ct. 349, 351, 212 U. S. 389, 53 L. Ed. 564 (quoting and adopting definitions in Rev. St. Ariz. pars. 2708, 2948). Minerals Rem.& Bal. Code, § 8739, authorizes any railroad corporation to enter upon any of the state school lands to locate its road. Section 8740 authorizes every railroad corporation to "appropriate" by condemnation any land or interest therein, and any rights of way for tunnels beneath the surface, including state school lands, tide lands, etc., necessary for the line of the road, provided that, if the bed of place. Huss v. Jacobs, 59 Atl. 991, 994, 210 etc. "Land" includes coal and minerals in Pa. 145. Under Code, c. 2, § 5, subsec. 10, provid and hereditaments and all rights thereto and interest therein other than a chattel interest therein, where on a bill filed by a vendor for a specific performance, it was decreed that the land be sold, and the entire acreage was sold and conveyed without restriction or reservation, the conveyance carried title to the coal and minerals beneath the surface of the land. Steinman v. Vicars, 39 S. E. 227, 229, 99 Va. 595. A bill may be maintained to quiet the title to coal and other minerals under and on a tract of land; the minerals being "land" within Code 1896, § 809, providing that when any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, and his title thereto or to any part thereof is denied or disputed, he may maintain a suit in equity to settle the title and to clear up all doubts and disputes concerning it. Gulf Coal & Coke Co. v. Alabama Coal & Coke Co., 40 South. 397, 398, 145 Ala. 228. such railway is upon a state or county road, the corporation shall be responsible for the cost of relocating the road appropriated. Sec-ing that "land" includes lands, tenements, tion 8738 permits any corporation to change the grade or location of its "road or canal" in order to avoid dangerous or deficient curves, Section 5717, provides that "when it shall be necessary in the location of any road herein mentioned to appropriate any part of any public road, street or alley," etc., the county court may, except within the limits of a municipal corporation, agree with the corporation upon the conditions upon which it may be appropriated, and, if the parties cannot agree, the corporation may appropriate so much thereof as may be necessary in the location of the road. Section 5718 provides that whenever a private corporation is authorized to appropriate any public highway, etc., as mentioned in the last section, if it be within any town, incorporated or not, the corporation shall locate its road upon the particular street, etc., designated by the local authorities; but if they refuse to make such designation the corporation may make such appropriation without reference thereto. Section 5719 provides that when a public highway, etc., is taken by agreement, the corporation may place tollgates thereon with the consent of the local authorities, but shall not when the highway is appropriated without agreement. Section 8737 authorizes every railroad corporation to construct its railway across, along, or upon any stream, plank road, turnpike, etc., paying any damages caused thereby. Held, that a railway company could not acquire by eminent domain as against the public the exclusive right to use one-half of a street for a double-track railway; the term "land," as used in sections 8739 and 8740, not including land already devoted to a public use, such as a street. State ex rel. B. Schade Brewing Co. v. Superior Court of Spokane County, 113 Pac. 576, 578, 62 Wash. 96. Petroleum, oil, and natural gas are included in the comprehensive idea which the law attaches to the word "land" and are a part of the soil in which they are found. A lease of land for the purpose of mining coal or extracting oil or natural gas from the soil or rock is in effect a grant of the corpus of the land. Haskell v. Sutton, 44 S. E. 533, 536, 53 W. Va. 206. "Oil,' before its extraction, is a mineral, and is a part of the 'land.'" Swayne v. Lone Acre Oil Co., 86 S. W. 740, 742, 98 Tex. 597, 69 L. R. A. 986, 8 Ann. Cas. 1117; Isom v. Rex Crude Oil Co., 82 Pac. 317, 318, 147 Cal. 659. Pontoon A pontoon floating upon the water of a navigable stream, between high and low water mark, though fastened to the shore by a cable, is not "land," and an action for an injury to a person thereon by a moving vessel is within the admiralty jurisdiction. The Mackinaw, 165 Fed. 351, 352. Premises synonymous Premises as including land, see Premises. The Liquor Tax Law (Laws 1897, p. 225, c. 312, § 24, subd. 1), prior to the amendment made by Laws 1905, p. 145, c. 104, made it unlawful to traffic in liquor within one-half mile of the building and "premises," of any state hospital, and the amendment added the words "or lands" after the word "premises." On a petition for the cancellation of a liquor tax certificate, it was stipulated that defendant, prior to the amendment, had been legally selling liquor at the place in question. Held, that "lands" was synonymous with "premises," and in view of the stipulation there could be no cancellation of the certificate, whether defendant was carrying on his business within one-half mile of lands owned and used by a state hospital and contiguous to it, or within one-half mile of the buildings, or not. The terms "premises" and "lands" are synonymous, and, if there is any distinction between the words, it is that the word "premises" is more inclusive. According to Bouv. Law Dict. and Worcest. Dict. the word "premises" is defined as "lands and tenements." According to Cent. Dict., it is defined as "lands and houses or tenements." According to Stand. Dict., it is defined as "land or lands; land with its appurtenances." In re Cullinan, 99 N. Y. Supp. 374, 375, 113 App. Div. 485. As property See Private Property; Property. Proceeds of sale Act of Separation from Massachusetts (Rev. St. 1883, p. 1005) § 1, par. 7, exempting from taxation "lands" theretofore granted to any religious society, etc., while the same continue to be owned by such society, does not exempt a fund created from the pro ceeds of a sale of such lands. Inhabitants of Gorham v. Trustees of Ministerial Fund in First Parish in Gorham in Cumberland County, 82 Atl. 290, 292, 109 Me. 22. Real estate and real property synony mous The word "land," as used in Code 1904, § 1105 (3-6), authorizing the condemnation of lands or any in trust or estate therein, is synonymous with "real estate" and "real property." Swan v. Washington Southern R. Co., 61 S. E. 750, 751, 108 Va. 282. As security See Security. Submerged land The word "lands" includes the beds of nonnavigable lakes and streams, and lands are none the less land for being covered with water. State v. Jones, 122 N. W. 241, 243, 143 Iowa, 398. "Land" covered by water within the public domain of the United States is as much a part thereof as the dry land. Kean v. Calumet Canal & Improvement Co., 23 Sup. Ct. 651, 659, 190 U. S. 452, 47 L. Ed. 1134. The owner of the bank of a navigable stream owns to the center of the stream, unless the ownership of the bank and the bed of the stream has been separated, subject only to governmental and public rights; and the bed of a navigable stream is "land." Green Bay & Mississippi Canal Co. v. Telulah Paper Co., 122 N. W. 1062, 1065, 140 Wis. 417. Timber The word "lands," in Const. 1890, § 211, prohibiting the sale of school lands, includes the soil only, and not timber growing thereon; and hence Code 1906, § 4702, is not unconstitutional because it authorizes a sale of such timber. L. N. Dantzler Lumber Co. v. State, 53 South. 1, 2, 97 Miss. 355. Town lots or blocks Where a party contracts for the purchase of a threshing outfit, unless he shall go to Oklahoma and buy land, the word "land" is broad enough to include a 'piece of real property described as a block in a town site. J. I. Case Threshing Mach. Co. v. Mickley, 83 Pac. 970, 72 Kan. 372. Trees At common law, "land" embraces, not only the soil, but its natural products, such as trees, growing upon and affixed to it. L. N. Dantzler Lumber Co. v. State, 53 South. 1, 2, 97 Miss. 355. Trees standing on land are a part of the "land," the title to which can be passed by a statutory deed. Morgan v. Pott, 101 S. W. 717, 719, 124 Mo. App. 371. Water and water power "Land" includes the water upon it, and, when the fee to land is acquired by condemnation, everything which is comprehended in the term "land," including water, vests in the expropriator. Philadelphia Trust, Safe Deposit & Ins. Co. v. Borough of Merchantville, 69 Atl. 729, 730, 74 N. J. Eq. 330. Under Gen. St. 1902, § 2321, which provides for the taxation of land owned or taken by a municipal corporation for the creation or furnishing of a supply of water, if the inhabitants of the town in which it is situated do not have the use and do actually use such water supply on the same terms as the inhabitants of the municipal corporation, in which case the property shall be exempt, a dam located on such land is not an item subject to taxation separate from the land, and should have been included in an item of the assessment denominated "land used in connection with reservoir." City of Norwalk v. Town of New Canaan, 81 Atl. 1027, 1029, 85 Conn. 119. |