Front Page Titles (by Subject) CHAPTER II.: OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER II.: OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS
The objects of dominion or property are things, as contradistinguished from persons: and things are by the law of England distributed into two kinds, things real and things personal. Things real are such as are permanent, fixed, and immovable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other movables; which may attend the owner’s person wherever he thinks proper to go.1
In treating of things real, let us consider, first, their several sorts or kinds; secondly, the tenures by which they may be holden; thirdly, the estates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and losing it.
First, with regard to their several sorts or kinds, things real are usually said to consist in lands, tenements, or hereditaments.2Land 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 accep**17]tation it is only applied to houses and other buildings, yet, in its original, proper, and legal sense, it signifies every thing 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.3 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:(a) 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.(b) But an hereditament, says Sir Edward Coke,(c) 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 together with a house, is 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.(d)4
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,(e) comprehendeth, in its legal signification, any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. *[*18It 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.(f) 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 this I may have a certain substantial property; of which the law will take notice, and not of the other.5
Land hath also, in its legal signification, an indefinite extent, 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 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;6 as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it.7 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 *[*19equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing:(g)8 but the capital distinction is this, that by the name of a castle,9 messuage,10 toft,11 croft,12 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, every thing terrestrial will pass.(h)
[1 ] Mr. Stephen justly remarks that it is more correct and convenient to keep separate the idea of the subjects in which property may be acquired from the idea of the estate or interest that may be acquired in these subjects. There is a distinction between things and the estate in things. Things real are land, structure thereon, fixtures thereto, and rights issuing out of, annexed to, or exercisable within, land. There may be a personal estate in a thing real, as a term of years, a mortgage, &c. Real estate is such an interest, not held as merely collateral to a debt or personal duty, in a thing real, as is of uncertain duration and which by possibility may last for life. There cannot be a real estate in a thing personal. Sir Richard Pepper Arden, in Buckeridge vs. Ingram, 2 Ves. Jr. 651, has given a definition of real property which has been followed by the Supreme Court of Pennsylvania in the case of Meason’s estate, 4 Watts, 346. “Wherever a perpetual inheritance is granted which arises out of land, or is in any degree connected with it, or, as it is emphatically expressed by lord Coke, exercisable within it, it is that sort of property which the law denominates real property.” This definition, though true as far as it goes, is yet not entirely accurate. There is certainly no reason for confining it to the case of a perpetual inheritance. Surely an estate for life in land is real estate. It is not every interest in it which is. A chattel real is personal estate. It will not do to substitute “interests for an indefinite or uncertain duration” for the words “perpetual inheritance,” without more; because the estates of tenants by statute merchant, statute staple, and elegit, though of this character, are chattels, and not freeholds. A mortgage, though giving an interest in real estate even in fee-simple, and which may, by proceedings at law or in equity, be converted into an absolute indefeasible estate, is nothing, for all practical purposes, but a chattel. It is to be remarked, however, that these instances are all cases in which the estates are held as mere security for debts and follow the nature of the debts to which they are accessory.
When the owner of land has by his will, or by a trust, directed that it shall be sold for money, courts of equity, which always consider that as actually done which ought to be done, will treat the land so directed to be sold as money; and so, vice versa, money directed to be laid out in land will in equity be considered as land.
An interest in realty, by being mingled in an undistinguished mass of property held in common with personalty, may have the latter character impressed upon it. Thus, shares of stock in a bank or other corporation are personal estate, without reference to the nature of the subjects in which these shares give an interest. This is the general doctrine of American law. 2 Kent, 340, n. In England, shares in companies associated for the purpose of acting on land exclusively, as railroad, canal, and turnpike companies, are real estate. Drybutter vs. Bartholomew, 2 P. Wms. 127. Buckeridge vs. Ingram, 2 Ves. Jr. 651. It is so held in Kentucky also. Price vs. Price, 6 Dana, 107. It is most convenient, however, to consider the share as a transmissible and assignable franchise of the personal kind, giving the proprietor a right to his proportion of the profits in money in the shape of annual dividends, and to a return of his capital in money upon the dissolution of the corporation or expiration of the charter.—Sharswood.
[2 ] The terms “lands,” “tenements,” and “hereditaments,” and other names describing real property, are fully explained in Co. Litt. 4 a. to 6 b. It will be found material to attain an accurate knowledge of them. An advowson in gross will not pass by the word “lands” in a will, but it is comprehended under the terms “tenements” and “hereditaments.” Fort. 351. 3 Atk. 464. Ca. Temp. Talb. 143.—Chitty.
[3 ] Therefore in an action of ejectment, which, with the exception of tithe and common appurtenant, is only sustainable for a corporeal hereditament, it is improper to describe the property sought to be recovered as a tenement, unless with reference to a previous more certain description. 1 East, 441. 8 East, 357. By the general description of a messuage, a church may be recovered. 1 Salk. 256. The term close, without stating a name or number of acres, is a sufficient description in ejectment. 11 Coke, 55. In common acceptation it means an enclosed field; but in law it rather signifies the separate interest of the party in a particular spot of land, whether enclosed or not. 7 East, 207. Doct. & Stud. 30. If a man make a feoffment of a house “with the appurtenances,” nothing passes by the words with the appurtenances but the garden, curtilage, and close adjoining to the house, and on which the house is built, and no other land, although usually occupied with the house; but by a devise of a messuage, without the words “with the appurtenances,” the garden and curtilage will pass, and, where the intent is apparent, even other adjacent property. See cases, 2 Saund, 401, note 2. 1 Barr. & Cres. 350. See further as to the effect of the word “appurtenant,” 15 East, 109. 3 Taunt. 24, 147. 1 B. & P. 53, 55. 2 T. R. 498, 502. 3 M. & S. 171. The term farm, though in common acceptation it imports a tract of land with a house, out-buildings, and cultivated land, yet in law, and especially in the description in an action of ejectment, it signifies the leasehold interest in the premises, and does not mean a farm in its common acceptation. See post, 318.—Chitty.
[(a) ] Co. Litt. 6.
[(b) ] Ibid. 19, 20.
[(c) ] 1 Inst. 6.
[(d) ] 3 Rep. 2.
[4 ] By a condition is here meant a qualification or restriction annexed to a conveyance of land, whereby it is provided that in case a particular event does or does not happen, or a particular act is done or omitted to be done, an estate shall commence, be enlarged or defeated. As an instance of the condition here intended, suppose A. to have enfeoffed B. of an acre of ground upon condition that if his heir should pay the feoffer 20s. he and his heir should re-enter: this condition would be an hereditament descending on A.’s heir after A.’s death; and if such heir after A.’s death should pay the 20s. he would be entitled to re-enter, and would hold the land, as if it had descended to him. Co. Litt. 201, 214, b.—Coleridge.
[(e) ] 1 Inst. 4.
[(f) ] Brownl. 142.
[5 ] “The right to the use of water rests upon clear and settled principles. Primâ facie the proprietor of each bank of a stream is the proprietor of half the land covered by the stream; but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above. Every proprietor, who claims a right either to throw the water back above or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years.” Sir John Leach, (1 Sim. & Stu. 190.) Weston vs. Alden, 8 Mass. 136. Buddington vs. Bradey, 10 Conn. 213. Aqua currit et debet currere ut currere solebat is the language of the law. Though the proprietor may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. 3 Kent, 537. Norton vs. Valentine, 14 Verm. 239. Arnold vs. Foot, 12 Wend. 330. Wadsworth vs. Tillotson, 15 Conn. 366. The water-power to which a riparian owner is entitled consists of the fall in the stream when in its natural state, as it passes through his land or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it. This natural power is as much the subject of property as is the land itself, of which it is an accident; and it may, in the same way, be occupied in whole, or in part, or not at all, without endangering the right or restricting the mode of its enjoyment, unless where there has been an actual adverse occupancy or enjoyment for a period commensurate with that required by the statute of limitations; and, as to a right by prior appropriation, that has regard to the quantum of water withdrawn from a stream common to both parties, and not to the quantum of fall. The latter can be augmented only by subtracting from the proprietor above, by swelling back on him; or by appropriating a part of the adjoining proprietor’s fall below, by excavating the channel within his boundary and carrying out the bottom on a level to some point in the inclined line of the natural descent. C. J. Gibson, in McCalmont vs. Whitaker, 3 Rawle, 90.—Sharswood.
[6 ] The passage in the text requires a little qualification.
The freehold of customary lands, and lands held by copy of court-roll, is in the lord of the manor. In such lands, unless the act be authorized by special custom, (Whitchurch vs. Holworthy, 19 Ves. 214, S. C. 4 Maul. & Sel. 340,) it is neither lawful for the customary tenant or copyholder to dig and open new mines without the license of the lord of the manor, nor for the lord, without the consent of the tenant, to open new mines under the lands occupied by such tenant. Bishop of Winchester vs. Knight, 1 P. Wms. 408. And see, as to the latter point, the opinion of two judges against one, in the Lord of Rutland vs. Greene, 1 Keble, 557, and infra. The acts which a lord of a manor may do by custom, to enable him profitably to work mines, previously opened, under lands which are parcel of his manor, must not be unreasonably oppressive upon the occupier of the lands, or the custom cannot be maintained. Wilkes vs. Broadbent, 1 Wils. 64. And the lord of a manor cannot open new mines upon copyhold lands within the manor without a special custom or reservation; for the effect might be a disinherison of the whole estate of the copyholder. The lord of a manor may be in the same situation with respect to mines as with respect to trees,—that is, the property may be in him,—out it does not follow that he can enter and take it. The lord must exercise a privilege over the copyholder’s estate if during the continuance of the copyhold he works mines under it, and a custom or reservation should be shown to authorize such a privilege; but as soon as the copyhold is at an end the surface will be the lord’s, as well as the minerals, and he will have to work upon nothing but his own property. Grey vs. The Duke of Northumberland, 13 Ves. 237. 17 Ves. 282; and S. P., at law, under the title of Bourne vs. Taylor, 10 East, 205, where all the leading cases on the subject are discussed. The right to mines may be distinct from the right to the soil. In cases of copyholds, a lord may have a right under the soil of the copyholder: but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil will pass every thing under it. Townley vs. Gibson, 2 T. R. 705.—Chitty.
[7 ] “I recollect a case where I held that firing a gun loaded with shot into a field was a breaking of the close. Would trespass lie for passing through the air in a balloon over the land of another?” Per lord Ellenborough, 1 Stark. 58. In the case of mines, custom has in many places made an exception to this rule. See Bainbridge on Mines, ch. 2. Of course, any portion of the space between the centre of the earth and the sky may be severed from the rest and be capable of a distinct ownership. Thus, a man may have a several inheritance in the upper story of a house or in a private box at a theatre. 2 Gal. & D. 435.—Sweet.
[(g) ] Co. Litt. 4.
[8 ] Or the right to use the water, as in the case of rivers and mill-streams. Twenty years’ exclusive enjoyment of the water in any particular manner by the occupier of the adjoining lands affords a conclusive presumption of right in the party so enjoying it; and he may maintain an action if the water be diverted from its course, so that the quantity he has thus been accustomed to enjoy is diminished, although the fishery may not be injured, (6 East, 208. 7 East, 195. 1 Wils. 175;) and he may legally enter the land of a person who has occasioned a nuisance to a watercourse, to abate it. 2 Smith’s Rep. 9. Com. Dig. Pleader. 3 M. 41.—Chitty.
[9 ] By the name of a castle, one or more manors may be conveyed; and, e converso, by the name of a manor, a castle may pass. 1 Inst. 5. 2 Inst. 31.—Christian.
“Land may be parcel of a castle: castle, honour, and the like, are things compound, and may comprise messuages, lands, meadows, woods, and such like.” Hill vs. Grange, 1 Plowd. 168, 170.—Chitty.
[10 ] A messuage, in intendment of law, primâ facie comprehends land; and it will be presumed that a curtilage, at least, belongs thereto. Scholes vs. Hargreaves, 5 T. R. 48. Hockley vs. Lamb, 1 L. Raym. 726. Scanler vs. Johnson, T. Jones, 227. Patrick vs. Lowre, 2 Brownl. 101. It should be observed, however, that North vs. Coe, Vaugh. 253, is contra. Rights of common, and even of several, pasturage, may be appurtenant to a messuage, (Potter vs. Sir Henry North, 1 Ventr. 390,) or to a cottage, (Emerton vs. Selby, 1 L. Raym. 1015;) and where common is appurtenant, in right, to a tenement, it goes with the inheritance. 1 Bulst. 18. So a garden may be said to be parcel of a house, and by that name will pass in a conveyance, Smith vs. Martin, 2 Saund. 401, a. S. C. 3 Keb. 44. It has also been held that land may pass as pertaining to a house, if it hath been occupied therewith for ten or twelve years; for by that time it has gained the name of parcel or belonging, and shall pass with the house in a will or lease. Higham vs. Baker. Cro. Eliz. 16. Wilson vs. Armourer, T. Raym. 207. Loftes vs. Barker, Palm. 376. And by the devise of a messuage, a garden and the curtilage will pass, without saying cum pertinentiis. Carden vs. Tuck, Cro. Eliz. 89. For this purpose the word messuage seems formerly to have been thought more efficacious than the word house. Thomas vs. Lane, 2 Cha. Ca. 27. S. P. Keilway, 57. But the subtlety of such a distinction has been since disapproved. Doe vs. Collins, 2 T. R. 502. And when a man departs with a messuage cum pertinentiis, even by feoffment, or other common-law conveyance, not only the buildings, but the curtilage and garden, (if any there be,) will pass. Bettisworth’s case, 2 Rep. 32. Hill vs. Grange, 1 Plowd. 170, a.; S. C. Dyer, 130, b. A fortiori, in a will, although lands will not pass under the word appurtenances, taken in its strict technical sense, they will pass if it appear that a larger sense was intended to be given to it. Buck vs. Nurton. 1 Bos. & Pull. 57. Ongley vs. Chambers, 1 Bingh. 498. Press vs. Parker, 2 Bingh. 462.—Chitty.
[11 ] “When land is built upon, the space occupied by the building changes its name into that of a messuage. If the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land. but it shall be called a toft, which is a name superior to land and inferior to messuage.” Hill vs. Grange, 1 Plowd. 170.—Chitty.
[12 ]Croft is a small enclosure near to the homestead.—Chitty.
[(h) ] Co. Litt. 4, 5, 6.