Hereditaments.

common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements. 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 whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, or implement of furniture, which by custom descends to the heir with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament.

Hereditaments then, to use the largest expression, are of Corporeal and two kinds, corporeal and incorporeal. Corporeal consist of incorporeal. such as affect the senses; such as may be seen and handled by the body incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

Corporeal hereditaments.

Land.

* S. 18.

It

Corporeal hereditaments consist wholly of substantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke, comprehendeth in its legal signification any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath.* legally includeth also all castles, houses and other buildings; for they consist, sayeth he, of two things; land, which is the foundation, and structure thereupon; so that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a

pond, a watercourse, or a rivulet; but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, 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.

fication.

Land hath also, in its legal signification, an indefinite ex- Its legal signitent, upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another's land: and downward, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs 'in general' to the owner of the surface; so that the word 'land' includes not only the face of the earth, but everything under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are *equally sufficient to pass S. 19. them, except in the instance of water; by a grant of which nothing passes but a right of fishing or perhaps the right of What passesby it. user of the water, as for mill purposes: but the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, everything terrestrial will pass.

Definition,

* S. 20.

*S. 21.

CHAPTER IV.

OF INCORPOREAL HEREDITAMENTS.

be

An incorporal hereditament is a right issuing out of a thing corporate (whether real or personal), or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstract contemplation; though their effects and profits may frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, 'to a man and his heirs,' is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce* of them, as the tenth sheaf or the tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being, merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense; that casual share of the annual in

crease is not, till severed, capable of being shewn to the eye, nor being delivered into bodily possession.

Incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, annuities, rents, 'reversions and remainders, dependent on freehold estates.'

Advowson is the right of presentation to a church or eccle- Advowson. siastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and, therefore, is synonomous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron.

The instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages, but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be* had of it. If the patron takes corporal possession of the church, the church-yard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by grant, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth,

* S. 22.

Ways.

By grant.

* S. 36.

when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

A species of incorporeal hereditament is that of ways; or the right of going over another man's ground. I speak not here of the public highways, nor yet of the common ways dedicated to the public, or lanes;' but of private ways, in which a particular man may have an interest and a right, though another be owner of the soil. This may be grounded on a special permission; as when the owner of the land grants to another the liberty of passing over his grounds, to go to church, to market or the like: in which case the gift or grant is particular, and confined to the grantee alone; it dies with the person; and if the grantee leaves the country, Prescription. he cannot assign over his right to any other; nor can he justify taking another *person in his company. A way may be also by prescription: as if all the inhabitants of such a hamlet, or all the owners and occupiers of such a farm, have immemorially used to cross such a ground for such a particular purpose for this immemorial usage supposes an original grant, whereby a right of way thus appurtenant to land or houses may clearly be created. Since 10 & 11 Vic. c. 5, R. S. O. c. 108, immemorial usage is no longer requisite, and under ordinary circumstances, open, known, uninterrupted enjoyment, as of right, for twenty years, will prevent such prescription from being defeated by showing the way was first enjoyed at some time prior to such twenty years, and therefore not immemorially (see ch. 21).' A right of way may also arise by act and operation of law: for, if a man grants me a piece of ground in the middle of his field, he at the same time tacitly and impliedly gives me a way to come at it, and I may cross his land for that purpose without trespass; and so conversely, if I reserve the middle and grant the surrounding piece, the law will imply a reservation of a right