CHAPTER IV.

CORPOREAL AND INCORPOREAL INTERESTS.

BRACTON, 220. There are certain rights which belong to a tenement besides the ownership of the corporeal things; these are from different points of view called rights or servitudes. They are called rights or franchises in reference to the tenements to which they appertain. They are called servitudes in reference to the tenements subject to the obligation; and they always consist in rights over another man's land and not over a man's own land, because no one can have a servitude over his own land, and no one can create a servitude of this kind but he who has lands and tenements, for some lands are free, others subject to a servitude. Land may be called free when it is in no respect bound or subservient to the lands of neighbors. If, however, it is so subservient, land which may before have been free is said to be subjected to a servitude, and this whether its subjection to the land or tenement of another be by the will and grant of the owners, or because of an ascertained obligation, or because of vicinage.

And thus a servitude is created over another man's land, sometimes by act of party, sometimes by acquiescence and user. And in the same way it is sometimes imposed by law, and neither by act of party nor by user, for instance, that no one should do on his own land anything by which damage or harm should result to his neighbor. For harm may be permitted by law, or it may be wrongful. It is wrongful when any one does any act on his own land wrongfully, contrary to law or contrary to a grant, he being forbidden by law to do the act. But if he be not forbidden by law to do

the act, although he does harm and causes damage, yet the act will not be wrongful, for it is lawful for any one to do upon his own land anything which will not cause wrongful damage to his neighbor; as if any one erects a mill on his own land, and diverts from his neighbor his own custom and that of the neighbors, he thereby does his neighbor harm but not injury, since he is not forbidden either by law or covenant to have or erect a mill. Again, there are servitudes which are imposed by law on neighboring tenements, as, for instance, that a man should not raise the level of the water in his pool so high as to drown the land of his neighbor. Another instance is that a man may not make a ditch on his own ground so as to divert his neighbor's water, or so as to prevent it in whole or in part from flowing back into its ancient channel.

HALE, ANALYSIS, 46-50. Things real are of two kinds : Corporeal, incorporeal.

Corporeal things real are such as are manurable. And they again are of two kinds-simple, aggregate.

Things corporeal which are simple are generally comprehended under the name of lands, which yet are distributed into several kinds, according to their several qualifications, and accordingly are demandable in writs.

Things incorporeal are of a large extent, but may be reducible into these two general kinds-namely, things incorporeal, not in their own nature, but so called in respect of the degree or circumstance wherein they stand; as reversions, remainders, the estate of lands.

Things incorporeal in their own nature-and these are of very great variety, and hardly reducible into general distributions, and therefore I am forced to take them by tale -namely, rents reserved or granted, as rent service, rent charge, rent seck. . Services personal incident to tenures; as homage, fealty and knights service. Advowsons of all sorts. . . Tithes of all sorts. . Commons of all sorts; as common of estovers and of pasture, ap

pendant and appurtenant, for cattle certain and for cattle. sans number, separabilis pastura. All kinds of proficua capienda in alieno solo; as herbage, pawnage, etc. All kinds of pensions, proxies (procurations), etc. Offices of all sorts. Franchises and liberties

of all sorts.

. Villeins: Dignities; as dukes, marquises, earls, viscounts, barons, etc.; and thus far touching incorporeal real things temporal.

Their common incident is that they pass not from one to another without deed. And to these several titles may be reduced all the learning of each particular.

2 BL. COM., 16-19. Of Corporeal Hereditaments.First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature, being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal sense it signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. Thus, liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like; and as lands and houses are tenements, so is an advowson a tenement; and a franchise, an office, a right of 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,1 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 heirloom or implement of furniture which by custom descends to the heir together with a house, is

1 I Inst. 6.

neither land nor tenement, but a mere movable; 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 two kinds, corporeal and incorporeal. Corporeal consist of 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 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,1 comprehendeth, in its legal signification, any ground, soil, or earth whatsoever; as arable meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings: for they consist, said 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 movable, 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 immovable; and therefore in

11 Inst. 4.

this I may have a certain substantial property, of which the law will take notice, and not of the other.

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law; upwards, therefore, no man may erect any building, or the like, to overhang another's land; and downwards, whatever is in a direct line between the surface of any land and the centre of the earth belongs to the owner of the surface, as is every day's experience in the mining countries. 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 them, except in the instance of water, by a grant of which nothing passes but a right of fishing; 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.1

ID., 20-43. Of Incorporeal Hereditaments.-An incorporeal 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 'Co. Litt. 4, 5, 6.