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of certain local constitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed : and, where the necessary requisites are omiţted, the right of the heir is equally strong and built upon as solid a foundation, as the right of the devisee would have been, supposing such requisites were observed.
But, after all, there are some few things, which notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such wherein nothing but an usufructuary property is capable of being had : and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water ; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences : such also are the generality of those animals which are said to be ferae naturae, or of a wild and untameable disposition : which any man may seise upon and keep for his own use or pleasure. All these things, so long as they remain in porseffion, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seife and enjoy them afterwards.
AGAIN; there are other things, in which a permanent property may subfift, not only as to the temporary use, but also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands : such also are wrecks, estrays, and that species of wild animals, which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of gameWith regard to these and some others, as disturbances and quarrels would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of diffenfion, by vesting the things themselves in the sovereign of the state ; or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil socięty, the peace and security of individuals, by steadily pure suing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.
CHAPTER THE SECOND,
OF REAL PROPERTY; AND, FIRST, OF
T HE objects of dominion or property are things, as con
1 tradistinguished from perfons : 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 immoveable, which cannot be carried out of their place; as lands and tenements : things personal are goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.
In treating of things real, let us consider, first, their several sorts or kinds ; fecondly, 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. Land comprehends all things of a permanent, fubftantial nature; being a word of a very extensive fignification, as will presently appear more at large. Tenement is a word of still greater extent, and though in it's vulgar acceptation is only applied to houses and other buildings, yet in it's 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 unsubItantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the likea : and, as lands and houses are tenements, fo 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 6. But an hereditament, says sir Edward Coke', is by much the largest and inost 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 an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprized 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.
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, fir Edward Coke', comprehendeth in it's legal fignification 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, faith 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 folecism ; but fuch 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 it's. 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 moveable, 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 immoveable: and therefore in this I may have a certain, substantial property, of which the law will take notice, and not of the other.
d 3 Rep. 2. e 1 Inft. 4.
a Co. Litt. 6. • Ibid. 19, 20. ci Inft. 6. VOL. II.
LAND hath also, in it's legal signification, an indefinite extent, upwards as well as downwards. Cujus eft folum, ejus eft 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 center 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 every thing under it, or over it. And therefore if a man grants all his lands, be grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and uncadows. Not but the particular names of the things are . Brewn. 142.