CHAPTER XXVIII. INCORPOREAL HEREDITAMENTS. What is an incorporeal hereditament in its larger sense, and how are incorporeal hereditaments divided? In the larger sense, it may be described as a right to the enjoyment of certain profits and advantages transmissible to heirs; but it is more generally alluded to in the sense in which we have spoken of it in an earlier portion of this work. Incorporeal hereditaments consist of rights in alieno solo, and are divided into (1) profits; (2) easements. What are the various kinds of incorporeal hereditaments? (1) Advowsons; (2) tithes; (3) commons; (4) ways; (5) watercourses; (6) lights; (7) offices; (8) dignities; (9) franchises; (10) corodies; (11) premiums; (12) annuities; and (13) rents. What is a right of common, and what are the various kinds? It is a profit which a man hath in lands of another. There are five sorts: (i.) Common of pasture, which is either (1) appendant; (2) appurtenant because of vicinage; or (3) in gross. (ii.) Common of piscary, which is a liberty in another's water. (iii.) Common of turbary, a liberty to dig turf on another's ground, which arises either by grant or prescription, and is either appurtenant or in gross, save in the case of a house, when it is only appurtenant. (iv.) Common of estovers, which is the right of cutting necessary wood for use or furniture in another's land, and is claimed either by grant or prescription. (v.) Common in the soil, which is the right of digging for coals, stone, and minerals. Define the common of pasture, and the various kinds? It is the right of feeding one's beasts on another's lands. (1.) Common of pasture appendant is the right owners and occupiers of arable land holden of a manor have to turn out their commonable beasts. (2.) Common appurtenant, which arises by grant or prescription, extends to other lordships and to other than commonable beasts. (3.) Common because of vicinage or neighbourhood, which arises by tacit consent, is the right which the inhabitants of two townships lying contiguous to one another have to intercommon one with another, and to vicinage may be annexed the right to shack. (4.) Common in gross or at large is annexed to a man's person, and granted to him and his heirs by deed, or claimed by prescription. All the above must (i.) as regards time be limited, or limited except (ii.) as to intercommon in gross, which is unlimited. What is meant by the lord "approving the waste?" The right which he has under the Statute of Merton, 20 Hen. III. c. 4, to inclose so much waste as he likes against common of pasture, provided he leaves sufficient for those entitled. What is the principal Act on inclosure? and give its chief pro visions. 8 & 9 Vict. c. 118, which in the main provides that the Inclosure Commissioners may, on the application of the person interested of one third in value of any lands, with the consent of the remainder in value and the lord in case the lands be waste, inquire and report to Parliament on the subject of the inclosure. If Parliament think fit to pass an Act, the allotment and inclosure take place by means of a valuer appointed under the superintendence of the Commissioners. The Act also provides for the commutation and extinguishment of common and other rights, and for the depositing copies of the award with the clerk of the peace and the churchwardens of the particular parish. What are rights of ways, and how do they arise? A right of private way is the right of passing over another man's ground. They arise (1) by grant; (2) by prescription; (3) by custom; the above may all be either appurtenant to some house or land or in gross; and (4) by necessity. What are watercourses? It is the right of a man to the flow of a stream, either flowing through his own land, in which case he is entitled to both banks, or where one bank belongs to him and the other to his neighbour, in which latter case, unless the stream be a navigable one, each riparian owner is entitled to the stream, usque ad medium filum aque, that is, half the land covered by the stream. This right is distinguished from the ordinary right of merely using water, in that in the former case the owner of the land may insist on having the course kept clear, and free from incumbrances or nuisance, which right may of course be diverted by express agreement between the parties, or by long usage. What is the right to light, and how does it arise? The right of access of the sun's rays which a man has for his windows free and unobstructed. It arises (1) by occupancy; (2) grant; (3) prescription; but until this prescriptive right is established it must be remembered that adjacent owners have equal rights. What are franchises, and what are the various kinds ? Franchises are a royal privilege or licence by the Crown's perogative subsisting in the hands of a subject; they are held by grant or prescription. The various kinds are (i.) Fairs, markets, and ferries arising by (1) Act of Parlia- What is a forest? It is a grant of the assured royal right to devote a certain territory to the keeping of wild beasts and fowls of forest, &c., with the liberty of freely hunting and killing them, together with the right of protecting it, by right of the forest law. It is capable of being vested in a subject by Crown grant, and it differs from the before described incorporeal hereditaments in that it is a right which the owner may have either in his own lands or those of another. What is a chase? The franchise of keeping certain kinds of wild animals within a particular district, with the exclusive right of hunting them. When belonging to a subject it must have been created by royal grant. What is a park and a free warren? A park is simply a chase enclosed, save that you cannot have a park over another man's grounds. A free warren is a franchise to have and keep certain wild beasts within the limits of a specified district. It must be granted by the Crown to a subject. What is a free fishery? It is the exclusive right of fishing in a public river or arm of the sea. It is a royal franchise held under the grant from the Crown either express or presumed, as by prescription. The bed of the river belongs to the Crown, the fishing to the public. There may be a particular right vested in a man and his heirs by prescription, but not any longer by royal grant being prohibited by Magna Charta. This privilege differs from common of piscary in that the latter, which only exists in private rivers, may be granted by a private person, and he has no right in the fish till caught. What are rents, and what are the various kinds? Certain profits (reditus) issuing yearly out of lands and tenements corporeal. There are three kinds, viz., (1) rent service; (2) rentcharge; (3) rent seck. What are the chief incidents of a rent? (1.) It lies in render and not in prendre, like in corporeal hereditaments. (2.) It must be of a certain amount. (3.) Payable periodically. (4.) Out of profits of the land. (5.) It must issue out of hereditaments corporeal; and (6.) The payer must be the tenant. Point out the chief distinctions in the above? (1.) A rent service has some corporeal service incident to it, as rent, fealty, &c., and it has as an incident a power of distress. (2.) A rent-charge is where the owner has neither fealty, seigniory, or reversion, but power to distrain. (3.) A rent seck was where no seigniory, reversion, or rights of distress existed. But by 4 Geo. II. c. 28, a right of distress is given. The two latter must be distinguished from an annuity, which is a yearly sum charged, in the person of the grantor. Are there any other kinds of rents? There are also : (1.) Rents of assize, which are the certain established rents of the freeholders and ancient copyholders of a manor, and cannot be departed from. Those of the freeholders were frequently called chief rents, and both are quit rents because the tenant went quit and free of all other services. They are rent service, and liable to distress. (2.) A rack rent where the rent was near the value of the tenement; and (3.) A fee farm rent is where an estate in fee is granted subject to a rent in fee of at least one-fourth of the value of the lands, called a "fee farm" because it was said to be only letting the fee simple to farm by this method. How may rents be created? Give examples. (1) The owner may grant a rent out of the land; or (2) grant the land subject to the rent. Rent-charge or rent seck arises by either of these modes; rent service only by the latter. When and where is rent payable? At any time between sunrise and sunset, though rent is not strictly due till midnight. In the case of a subject it is payable on the land, in the absence of any other place being reserved; where due to the Crown, at the Exchequer Offices, or to a receiver in |