CHAPTER XV.

CORPOREAL HEREDITAMENTS.

1566. Definition of real property. 1568. Kinds of real property. 1569-1593. Corporeal hereditaments.

1570. Land, what so considered.

1582. Emblements.

1584-1593. Fixtures.

1585. The mode and intention of annexation.

1586. The object and use of the thing annexed.

1587-1592. The character of the claimants.

1588. Between executor and heir.

1589. Between devisee and executor.

1590. Between tenant for life and remainderman.

1591. Between vendor and vendee.

1592. Between landlord and tenant.

1593. When fixtures must be removed.

1594. Tenements.

1595. Hereditaments.

1566. It is not within the plan of this work to enter into speculative theories as to the foundation of the right which society has to the soil, nor to inquire whether the title of the aborigines has been extinguished according to justice and equity. It is sufficient that we find ourselves in possession of the fair portion of America known as the United States, and that we hold it by virtue of law binding on all who have an interest in it. Such speculative views and theories are at best only calculated to gratify curiosity, or to justify acts which, in some instances, have a very doubtful morality for their basis. On entering into the inquiry of the law relating to real estate, it will be ceived that the rules which govern this kind of property are, in general, arbitrary, technical, and artificial. One of the principal reasons for this is the fact that they were established during an age when the rights of the weak became an easy prey to the rapacity of the powerful, and when too often a technical reason or an artificial rule supplied the place of justice.

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In the United States the right to property is secured by the constitution, so that it cannot be taken, either for public or private use, except in conformity to law. The government cannot deprive the weakest individual of his property, even for public purposes, although it still retains the eminent domain over it, without making a just compensation to the owner.

During the middle ages there existed on the continent of Europe, and in England, from which latter country we have derived many of the rules which govern real property, a political system which placed men and estates into hierarchical and multipled distinctions of lords and vassals. The laws which supported this system were called feudal laws.1

The principles of the feudal law will be found in Littleton, Tenures; Wright, Tenures; Dalrymple, Hist. of Feudal Property; Sullivan, Lectures; Book of Fiefs; Spelman, Feuds

These laws vested all the lands in the country in the sovereign. The chief parcelled them out among the great men of the nation to be held of him, so that the king had the dominium directum, and the grantee or vassal had what was called the dominium utile. It was a maxim nulle terre sans seigneur. These tenants were bound to do services to the king, generally of a military character. These great lords, in their turn, granted part of the lands they thus acquired to other inferior vassals, who held under them, and were bound to perform services to these inferior lords, who were called mesne lords to distinguish them from the king, who was called the lord paramount.

The

The mesne lords merely held the land of the lord paramount by certain terms of tenure, but did not own the land, it being vested in the king. interest in the land thus held was called a feud, a fief, or a fee, and they were known as vassals. The right remaining in the lord was called a seignory, which signifies simply a lordship. The estates which the mesne lords granted to their vassals were, by subinfeudations to other vassals, so reduced that they became small enough for cultivation. But even the lowest feudatories did not personally cultivate the soil. This laborious task was reserved for the conquered inhabitants, who were held in an abject state of slavery under the names of serfs or villeins.

The terms by which vassals of every grade held their property were upon two conditions, fealty and service. By fealty, fidelitas, was understood the obligation of the tenant to be faithful to his lord, and to defend him against all his enemies; he pledged himself to this allegiance by a certain form of obligation which was called homage. In law French the vassal said jeo deveigne vostre home; I become your man. Service was the recompense made to the lord for the use of the land; it consisted in attending him in his court during peace, and during war in his army. The terms of service were settled at the time of creating the feud, and reduced to writing by what was called a deed of feoffment. To complete the creation of the feud, a ceremony called corporeal investiture, which consisted in symbolical delivery of possession, took place. By this the lord, in the presence of the neighboring vassal, by a symbol, delivered possession of the land. This gave rise to the ceremony of livery of seisin.

Feuds were originally given for personal services rendered by the feudatory, and were only for life; but in the course of time they were granted to him and his heirs, and they became estates of inheritance.

The feudatory could not alien his estate, nor the lord his seignory, without mutual consent, This gave rise to attornments.2

In the course of time the military tenures were changed to civil tenures, such as grand sergeanty, petit sergeanty, free socage and villein socage.

Happily the feudal law never was in full vigor in the United States, though many of its principles are still retained; but they are so modified that the inconvenience arising from them is but little felt. "These principles are so interwoven with every part of our jurisprudence," says Chief Justice Tilghman,3 "that to attempt to eradicate them would be to destroy the whole. They are massy stones worked into the foundation of our legal edifice. Most of the inconveniences attending them have been removed, and the few that remain can easily be removed by acts of the legislature.'

and Tenures; 2 Sharswood, Blackst. Comm. c. 5; The Capitularies; Pothier, Des Fiefs; Les Establissemens de St. Louis; Assizes de Jerusalem; Guizot, Essais sur l'Histoire de France, Ess. 5; Merlin, Rép. Feodalité; Dalloz, Dict. Feodalité.

2 The turning over from a former law to a new one or the recognition by the law of a new tenant in substitution for the former one is an attornment. In early times this took place in the presence of the pares curia. See Bouvier, Law Dict. Attornment; 1 Spence, Eq. Jur. 137.

Dunwoodie v. Read, 3 Serg. & R. Penn. 447.

1567. In this country all the lands were vested in the government, and no property in land can be had but where the title was deduced from the crown or the ante-revolutionary governments, or since the revolution and the independence of the United States, from the national or state governments. No foreign nation, and no individual, whether a citizen of the United States or an alien, can make a valid purchase of the Indian title. The government of the United States has never claimed the Indian lands other than to insist upon a right of pre-emption as to the Indians themselves, and absolute sovereignty as to the rest of mankind.

In the consideration of real property it will be necessary to ascertain the several kinds of such property; the estate which may be had in the same; and the title by which it may be holden.

1568. Real property consists of land, and of all rights and profits arising from and annexed to land which are of a permanent and immovable nature. It is usually comprised under the words, lands, tenements, and hereditaments. 1569. Corporeal hereditaments include land, emblements, and fixtures. These will be considered in order.

1570. The term land comprehends any ground, soil, or earth whatsoever, which is not separated from the earth, as meadows, pastures, woods, waters, marshes, furze, and heath. It has an indefinite extent upward and downward,5 so that all mines and treasures which are below the surface belong to the owner of the soil, and its extent upward is indefinite. No man can, therefore, build so as to overhang his house on his neighbor's ground; cujus est solum, ejus est usque ad cælum, is the maxim of the common law on the subject.

It is not always easy to ascertain what is land and what may be considered as personal property. The following rules will assist us in our inquiries:

1571. The buildings which are erected upon land are a part of it according to the maxim, quod solo inædificatur solo cedit, whatever is built on the soil is an accessory of the soil. Hence, if a man grant or devise the land without mentioning the buildings, the latter will pass. It is nevertheless prudent and proper to grant or devise it with all the buildings thereon."

But to this general rule there are some exceptions. It is said that a man may have an estate in a chamber or part of a house, and an ejectment will lie for it, and the land and the other part of the house will be considered as a dwelling-house and the chamber another. Again, a pew in a meeting-house is sometimes considered as real estate.9

✦ Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515.

1 Inst. 4, a; Wood, Inst. 120; 2 Sharswood, Blackst. Comm. 18; 1 Cruise, Dig. 58; Sheppard, Touchst. 92.

Inst. 2, 1, 29; Washburn v. Sproat, 16 Mass. 449. The numerous buildings which may be erected on the land, and which are considered as a part of it, have obtained various names. The terms "mansion," "dwelling-house," "house," and "messuage," are in general synonymous. Doe v. Collins, 2 Term, 502; 1 Thomas, Coke, Litt. 215, n. 35; but see 9 Barnew. & C. 681, and the cases there cited; see also Comm. v. Pennock, 3 Serg. & R. Penn. 199; 1 Leach, 89, 428; 1 East, P. C. c. 15, s. 19; 3 Inst. 64; 1 Hale, 558; 4 Sharswood, Blackst. Comm. 225; 2 East, P. C. 493; 2 Russell, Cr. 14. A “cottage" has nearly the same meaning in law. 1 Thomas, Coke, Litt. 216; Sheppard, Touchst. 94. As to the extent of the word "mill," see 1 Chitty, Pract. 174; Bouvier, Law Dict. Mill. A sale of land by the United States will pass the property to the purchaser in a fence, placed on it by mistake. Seymour v. Watson, 5 Blackf. Ind. 555.

7 Comyn, Dig. Grant, 23; Coke, Litt. 4, a; Isham v. Morgan, 9 Conn. 374.

1 Preston, Est. 214; Coke, Litt. 486; Loring v. Bacon, 4 Mass. 575; Otis v. Smith, 9 Pick. Mass. 297; Proprietors v. Lowell, 1 Metc. Mass. 538; Cheeseborough v. Green, 10 Conn. 318; Doe v. Burt, 1 Term, 701.

9

Bouvier, Law Dict. Pew.

But where a building is erected upon the land of another with his permission by one who has no estate in the land, it will be personalty and belong to the builder.10 This is otherwise if the builder has an interest in the land; as, for example, the husband of a tenant in dower, a reversioner or the like."

1572. Seeds which have been sown in the earth immediately become a part of the land in which they have been sown: quæ sata solo cedere intelliguntur.12 When, however, they became crops, at any rate if fit for harvest, they may be severed by sale and become personal estate.13

1573. Trees and bushes planted by the owner of them in his own land become a part of it as soon as they are planted, whether they have taken root or not; whether they would acquire this new quality if they belonged to another would be more doubtful.

14

They may be regarded as personalty; as, when planted by a tenant who is a nurseryman for the purpose of transplanting; and they may acquire a character of personalty; as, for example where they are sold to be cut and carried away.15 Bushes and flowers planted in boxes or pots would not possess the character of land; they would be clearly personal property.

As between the owners of adjoining estates, if the tree be planted near the division line, and the roots grow into the neighboring estate, the tree becomes the joint property of the owners of both the estates; but if the branches only overshadow the adjoining land, and the roots do not enter it, the tree wholly belongs to the estate where the roots grow.16

1574. Things which are attached to the freehold, though but slightly, when placed there permanently become a part of it."

1575. Things which are reputed as making a part of the land continue, even after being detached from it, to make a part of it as long as they are destined or intended to be replaced; as, when millstones were taken out to be picked with an intention of replacing them they retained their quality of real estate.18 But things which have never been used or made a part of the realty do not acquire the character of land by being simply destined to be used on the land.

1576. Straw which is raised on the land and manure made upon it are considered as a part of it, unless an intention be manifested by the owner that they shall be considered personal estate.19 But when the manure is not raised in the

10 Wells v. Bannister, 4 Mass. 514; Doty v. Gorham, 5 Pick. Mass. 487; Ashmun v. Williams, 8 id. 402; Aldrich v. Parsons, 6 N. H. 555; Osgood v. Howard, 6 Me. 452; Russel v. Richards, 10 id. 429.

Washburn v. Sproat, 16 Mass. 449; Cooper v. Adams, 6 Cush. Mass. 90; Eastman v. Foster, 8 Metc. Mass. 26.

12 Inst. 2, 1, 32.

13 Evans v. Roberts, 5 Barnew. & C. 829; Jones v. Flint, 10 Ad. & E. 753; Sainsbury v. Matthews, 4 Mees. & W. Exch. 343; see Emerson v. Hulis, 2 Taunt. 38; Stambaugh . Yates, 2 Rawle, Penn. 161; Craddock v. Riddlesburger, 2 Dan. Ky. 206.

14 Penton v. Robart, 2 East, 88; Wyndham v. Way, 4 Taunt. 316; Miller v. Baker, 1 Metc. Mass. 27; Whitmarsh v. Walker, 1 id. 313.

15 Smith v. Surman, 9 Barnew. & C. 561; Claflin v. Carpenter, 4 Metc. Mass. 580; Olmstead v. Niles, 7 N. H. 522.

16 1 Swift, Dig. 104; Waterman v. Soper, 1 Ld. Raym. 737; Griffin v. Bixby, 12 N. H. 454. But see Lyman v. Hale, 11 Conn. 177; Holder v. Coates, Mood. & M. 112.

17 Buller, N. P. 34; Pyle v. Pennock, 2 Watts & S. Penn. 390; 2 Watts. & S. Penn. 116.

18 Colegrave v. Dios Santos, 2 Barnew. & C. 76; Liford's case, 11 Coke, 50; Goodrich v. Jones, 2 Hill, N. Y. 142; House v. House, 10 Paige, Ch. N. Y. 162; see Farrar v. Stackpole, 6 Me. 154; Rogers v. Gillinger, 30 Penn. St. 185.

19 Al. 31; Stone v. Proctor, 2 N. Chipm. Vt. 115; Lassel v. Reed, 6 Me. 222; Middlebrook v. Corwin, 15 Wend. N. Y. 169; Goodrich v. Jones, 2 Hill, N. Y. 142; Kittredge v. Woods, 3 N. H. 503; Parsons v. Camp, 11 Conn. 525; Daniels v. Pond, 21 Pick. Mass. 367; Lewis v. Lyman, 22 id. 437.

course of agriculture, as, for example, by a livery-stable keeper, it is considered as personal property.20

1577. Those things which in their nature do not in themselves belong to us, but are ours only because they are found on our land, are considered as making a part of the land; such, for example, are animals, which, being in their perfect natural liberty in a certain place, are considered a part of such place. "If a man hath fish in a pond," say some old authorities, "and die, they go to his heir, for they are considered as the profits thereof, and therefore descend with the pond to the heir."21

1578. The fruits and productions of the earth other than emblements, while they are hanging by the roots are a part of the real estate. This agrees with the Roman law. Gaïus tells us, Fructus pendentes pars fundi videntur; 23 and Ulpian, Fructus perceptos villa non esse constat," for as soon as they are severed or gathered, they are personal property. An apple hanging where it grew is real estate; if shaken by the wind and blown upon the ground, it is personal. In the first case it descends to the heir, and is not the subject of larceny; in the last, it goes to the executor, and may be stolen.

1579. Things which, though personal in their nature or movable, are constructively attached to the real estate, are considered as real property; the keys of a house, title-deeds, and the box in which they are kept, and heir-looms, are of this kind.25

1580. Water of itself is never considered as land. In its nature it is incapable of being fixed, for, though apparently standing still, it is constantly changing. When it is conveyed, the land covered by it must be granted as so much land covered with water; a simple grant of water would give the grantee only a right to fish in it.26 A grant or devise of a mill and its appurtenances even without the land will carry the whole right of using the water enjoyed by the former owner as requisite to its use and a necessary incident."

1581. As land extends downward to the centre of the earth, mines and minerals found in it form a part of and pass under the name of land. Unless expressly excepted, mines would be included in a conveyance of land without being expressly named, and so vice versa, by a grant of a mine the surface of the land itself, if livery be made, will pass.28

1582. The word emblement is said to be derived from the old French word embléer, to sow wheat. By emblements is meant the crops growing upon the land. Crop here signifies the products of the earth which grow yearly and are raised by annual expense and labor, or "great manurance and industry," such as grain; but not fruits which grow on trees, which are not planted yearly, grass and the like, though they are annual.29

30

The crops must have been actually planted during the occupancy of the tenant, the possession must have been a rightful one on the part of the tenant, the time of termination of the estate must be uncertain, and the termination

20 Daniels v. Pond, 21 Pick. Mass. 367.

21

22

Bacon, Abr. Executors (H); Coke, Litt. 8; Wentworth, Ex. 57; Swinburne, Wills 403. Bacon, Abr. Executors (H); Wentworth, Ex. 59; Godolphin, Orph. Leg. 122.

23 Dig. 6, 1, 44.

25

Sheppard, Touchst. 90; 1 Washburne, Real Prop. 4.

262 Sharswood, Blackst. Comm. 18; Brownl. 142; Coke, Litt. 4.

24 Dig. 19, 1, 17, 1.

"Croke, Jac. 121; Baine v. Chambers, 1 Serg. & R. Penn. 169; Strickler v. Todd, 10 Serg. & R. Penn. 63; Hall v. Benner, 1 Penn. 402.

29

30

Coke, Litt. 6; 1 Thomas, Coke, Litt. 218; Sheppard, Touchst. 26.

Coke, Litt. 55; Comyn, Dig. Biens, G. 1; Evans v. Inglehart. 6 Gill & J. Md. 188.

1 Washburne, Real Prop. 103; Stewart v. Doughty, 9 Johns. N. Y. 108; Price v. Pickett, 21 Ala. N. s. 741; Thompson v. Thompson, 6 Munf. Va. 514; Grantham v. Hawley, Hob. 132.