kin v. Mann, 2 Paige, 27.) Equity, it has been held, may direct a partition for the purpose of setting off one of the co-tenant's shares, and decree a sale of the residue for the benefit of the other tenants, providing for compensation in case of inequality of partition. (Haywood v. Judson, 4 Barb. 228.)

Courts of equity exercise a beneficent authority with respect to improvements erected by one in good faith on the common property. Where a tenant in common, believing himself entitled to the whole premises, erected valuable buildings, an equitable partition was directed that should give him the benefit of them. (Town v. Needham, 3 Paige, 545.)

On the same principle it was held in Green v. Putnam, (1 Barb. 500,) that where one tenant in common makes improvements on the land, a court of equity in making partition will decree an account and compensation, or else assign to him the part of the premises on which the improvements have been made; and it is not necessary to show the assent of the co-tenants, nor a request and refusal to join in the improvements. It is obvious, however, that in such a case, the improvements should have been made in good faith. A court of equity administers its relief ex equo et bono, according to its own notions of general justice and equity between the parties. It will adjust by its decrees, all the equitable rights of the parties interested in the premises. It is not restrained as a court of law is, to a mere partition of the lands between the parties, according to their interests in the same, and having a regard to the true value thereof. (Per Paige, in Green v. Putnam, supra.)

Though the statute of limitations is applicable to an action at law by one tenant in common against his co-tenant for repairs; or to an action of account or bill in equity between tenants in common, when one tenant in common has received more than his just proportion of the profits, it is not applicable to the equitable rights of a tenant in common to an allowance for improvements made by him, on a partition of the premises in equity. (Per Paige, J. supra.) And as law and equity are now administered by the same tribunal and in the same action, it would seem that these principles have a general application.

At common law one tenant in common or joint tenant could not even compel his co-tenant to account to him for taking more than his share of the profits, unless he could show he had made him his bailiff or receiver. (Co. Litt. 200 b.) This defect of the common

L

law has been remedied by statute. An action of account at law can now be maintained, where one tenant in common or joint tenant has received more than his just proportion of the profits. (Green v. Putnam, supra. 1 R. S. 750, § 9.) But the statute does not apply to a case where one tenant in common occupies himself the entire premises, without any agreement with the others as to his possession, or any demand on their part to be allowed to enjoy the premises with him. (Wodever v. Knapp, 18 Barb. 265. Henderson v. Eason, 9 Eng. L. and E. 337. McMahon and wife v. Burchell, 2 Phil. R. 127. 22 Eng. Ch. Rep. 125.) The remedy in such a case is for the co-tenant, if he has been dispossessed, to resort to an appropriate action; and if not forcibly expelled, he should demand to be admitted into the enjoyment of his share of the premises, and on being refused he should resort to an action for such refusal. (Erwin v. Olmstead, 7 Cowen, 229.)

One of the evils inseparable from a joint ownership of an estate, is that the individuals will be apt to feel less interest and solicitude for its preservation, than if each owned the same property in severalty. The common law was extremely deficient in this respect. It favored, indeed, the maintenance of houses for the habitation of mankind, pro bono publico. And therefore, if there be two tenants in common or joint tenants of a house or mill which has fallen to decay, and the one was willing to repair the same and the other not, the common law gave the writ de reparatione facienda, the language of which was, ad reparationem sustentationem ejusdem domus teneantur. (Co. Lit. 54b; Id. 200.) But the writ did not extend to other improvements which might be greatly for the benefit of the estate, such as repairing or renewing the fences, erecting buildings where none before existed, clearing up wild land and preparing it for agricultural purposes, and the like.

In Mumford v. Brown, (6 Cowen, 475,) it was settled in this state, that even for a necessary repair to the land, without the previous request to join in the repairs made, and a refusal so to do, no action could be sustained. The chief justice (Savage) thought that till request to join in the repairs, and a refusal, both tenants were in equal fault, one having as much reason to complain as the other.

The duty of contribution, where expenses have been necessarily incurred and paid by one tenant in common, for the benefit of the common property, results from the plainest principles of equity. No one should enjoy a benefit without sharing in the burden by

which it is obtained. There is, indeed, some danger in permitting one tenant in common to make improvements without request and without notice. He may thus incur expenses disproportionate to the value of the property. And the character of the improvements may be a just matter of dispute between the parties. A partition, or sale of the property under a decree of the court, is the last and final remedy.

CHAPTER VIII.

OF INCORPOREAL HEREDITAMENTS.

In the second chapter of this treatise we observed that the most comprehensive definition of real property, was into lands, tenements and hereditaments. After defining lands and tenements, we remarked that hereditaments is a term of larger import than lands or tenements, as it comprehended whatsoever could be inherited, whether corporeal or incorporeal, real, personal or mixed. We then divided real property into corporeal and incorporeal hereditaments. (Laymen v. Abiel, 16 John. 32.) We have, in the preceding chapters, treated of corporeal hereditaments, in various aspects, and it is now proposed, in this chapter, to treat of incorporeal hereditaments.

An incorporeal hereditament is defined to be a right issuing out of a thing corporate, whether real or personal, or concerning, or annexed to, or exercisable within the same. (2 Bl. Com. 20.)

This species of property embraces a larger number of particulars, in England, than in this country. The institutions of the former create some rights and duties which are inapplicable to our circumstances and condition.

The English books of authority generally divide incorporeal hereditaments into ten sorts, viz: advowsons, tithes, corodies, offices, dignities, commons, ways, franchises, annuities and rents. The three first owe their origin and importance to their church establishment; the next two, viz: offices and dignities, are mainly concerning their nobility; and none of them have any but an historical interest to an American lawyer. It is not proposed to discuss them in the present work. The remaining five, viz: commons, ways, franchises, annuities and rents, exist in this country, and are governed by the principles of the common law, as modified by our statutes. It is

proposed to treat of them very briefly in this chapter, under separate sections. We shall also add some obervations on the right to air and light, and to some other easements which properly belong to this branch of the law.

SECTION I.

Of Commons.

Common imports a right or privilege to take a profit in common with many. It is of three kinds : appendant, appurtenant, and in

gross.

Common appendant is a right annexed to the owner or possessor of land to feed his beasts, or take wood, &c. (2 Black. Com. 38. 1 Crabbe on Real Property, 268.) Common appurtenant does not arise from any connection of tenure, but must be claimed by grant or prescription. Common in gross is a right not annexed to the land, but to the person, and must be claimed by grant or prescription. (Id. Cruise's Dig. tit. 23, § 19.)

The subject has been occasionally discussed in the courts of this state. It was explained by Savage, chief justice, in delivering the opinion of the court in Van Rensselaer v. Radcliff, (10 Wend. 647.) He thus speaks of this branch of the law: "Common or a right of common, is a right or privilege which several persons have to the produce of the lands, or waters of another. Thus, common of pasture is a right of feeding the beasts of one person on the lands of another; common of estovers is the right a tenant has of taking necessary wood and timber, from the woods of the lord, for fuel, fencing, &c.; common of turbary and piscary are, in like manner, rights which tenants have to cut turf or take fish in the grounds or waters of the lord. All these rights of common were originally intended for the benefit of agriculture, and for the support of the families and cattle of the cultivators of the soil. They are, in general, either appendant or appurtenant to houses and lands. There is much learning in the books relative to the creation, apportionment, suspension and extinguishment of these rights, which, fortunately, in this country, we have but little occasion to explain; but few manors exist among us as remnants of aristocracy not yet entirely eradicated. These common rights which were at one time thought to be essential to the prosperity of agriculture, subsequent experience, even in England, has shown to be prejudicial. In this country

such rights are uncongenial to the genius of our government, and the spirit of independence which animates our cultivators of the soil. In our state, however, we have the manors of Livingston and of Rensselaerwyck, and some others, in which these rights have existed, and to some extent do exist, and we are obliged to look into the doctrine of commons to ascertain the rights of parties and do justice between them."

Cases growing out of rights to common are less frequent now than at the time the chief justice delivered the foregoing remarks.

Common of pasture is the principal of these rights, and therefore most of the cases in the books relate to that species of common. This species of common is apportionable. (Id.)

Common of estovers cannot be apportioned; and if a person entitled to common, convey his land to which it is appurtenant, part to one person and part to another, the right is extinguished. (Id. Livingston v. Ketchum, 1 Barb. 592.) The principle which runs through the cases is, that the land which gives a right of common to the owner, shall not be so alienated as to increase the charge or burden of the land out of which common is to be taken, and that when the right is extinguished or gone, as to a portion of the land entitled to common, it is extinct as to the whole; for in such a case, common appurtenant cannot be extinct in part, and be in esse for part, by the act of the parties. (Per Spencer, Ch. J. in Livingston v. Tenbroek, 16 John. 26.)

The grantee of a right of common in gross, and without number, may alien it, and if he fails to do so, it descends to his heirs; but he cannot alien it in such a way as to give the entire right to several persons, to be enjoyed by each separately. Where it descends to several persons as tenants in common, it cannot be divided between them, but it must be enjoyed jointly. One of the tenants alone cannot convey it to a stranger, though all, by joining in the conveyance, may convey the right, (Layman v. Abeel, 16 John. 30.)

There is a right somewhat analogous to common appendant, claimed by the inhabitants in the rural districts, of permitting their cattle, horses or sheep to go at large on the highways, at certain seasons of the year.

Prior to 1830 the courts pretty uniformly held that the public had simply a right of passage over the highway, and no right to depasture it. The owner of the land was treated then as he is now, as