rupts the air of his house or gardens, (b) (7) fouls his water, (c) or unpens and lets it out, or if he diverts an ancient watercourse that used to run to the other's mill or meadow; (d) the law will animadvert hereon as an injury, and protect the party injured in his possession. But the property in them ceases the instant they are out of possession; for, when no man is engaged in their actual occupation, they become again common, and every man has an equal right to appropriate them to his own use.

These kinds of qualification in property depend upon the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. *As in case of bailment, or delivery of goods to another person for a particular use; as to a car[ *396] rier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered: for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away: the bailee, on account of his immediate possession; the bailor, because the posession of the bailee is, immediately, his possession also. (e) So also in case of goods pledged or pawned upon condition, either to repay money or otherwise; both the pledger and pledgee have a qualified, but neither of them an absolute, property in them: the pledger's property is conditional, and depends upon the

(b) 9 Rep. 59. Lut. 92.

(c) 9 Rep. 59.

(d) 1 Leon. 273. Skin. 389.

(e) 1 Roll. Abr. 607.

as that right was formerly qualified by the custom of the city of London, seems set at rest by the statute of 2 and 3 William IV, c. 71, § 3, which enacts, that where the access and use of light to and for any building shall have been enjoyed therewith for twenty years, without interruption, the right thereto shall be indefeasible: unless it shall appear that the same was enjoyed under some particular agreement in writing; in which case, of course, the right must be subject to the conditions of the agreement.

It would be unreasonable to presume a grant, where no adverse right has ever been exercised against the party who alone was capable of making the grant; consequently, the usurpation of an easement, or right of way, for twenty years, merely by the acquiescence of a tenant, without the knowledge of his landlord, will not authorize a presumption against the owner of the reversion, or inheritance, but even in such cases, the origin of the right claimed adversely must be traced, in order to repel the doctrine of presumption. It will not be enough to show, that the hereditaments which are deteriorated by the alleged encroachments have been, for twenty years, in the occupation of tenants; it should, also, be made to appear, that the encroachments complained of had their commencement within the period of such tenancy: Daniel v. North, 11 East, 374; Wood v. Veal, 5 Barn. and Ald. 456; Harper v. Charlesworth, 4 Barn. and Cress. 591; 6 D. and R. 589, S. C.; Cross v. Lewis, 4 Dowl. and Ryl. 239; S. Ć., 2 Barn. and Cress. 688; and, in order to prevent such claims of rights of way, or of water courses, or of other similar casements, from becoming indefeasible after forty years' uninterrupted enjoyment, the owner of a reversion expectant on the determination of a term of years, must (according to the eighth section of the act cited), resist the claims within three years next after the determination of the term. The last mentioned section of the act has reference only to rights of way and water courses; and from the 3d and 7th sections it appears that after the uninterrupted enjoyment of use of light to any building for twenty years, the claim, though it may have originated in encroachment, will be indefeasible, notwithstanding the parties injured thereby may have been incapable, owing to personal disabilities, or any cause whatever, to resist the encroachments. Formerly, the rule of law (as may be seen by referring to the first of the cases already cited) allowed a landlord to build up against encroaching lights, though his tenant had acquiesced under the encroachment for above twenty years: upon the same principle which still prevails with respect to ways and water courses.]

Upon the subject of the preceding note, see Story v. Odin, 12 Mass. 157; Robeson v. Pettinger, 1 Green, Ch. 57; Gerber v. Grabel, 16 Ill. 217; Duvel v. Brisblanc, 1 La. An. 407. The courts in this country have generally, however, rejected the English doctrine respecting the prescriptive right to the enjoyment of light and air, as being unsuited to the condition and circumstances of this country. See Parker v. Foote, 19 Wend. 309; Napier v. Bulwinkle, 5 Rich, 311; Cherry v. Stein, 11 Md. 1; Haverstick v. Sipe, 33 Penn. St. 368; Ingraham v. Hutchinson, 2 Conn. 597; Ward v. Neal, 37 Ala. 500; 2 Washb. Real Prop. 62.

(7) See 3 Kent, 448; 2 Washb. Real Prop. 60, 64; Washb. on Easem. 389.

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performance of the condition of repayment, &c.; and so, too, is that of the pledgee, which depends upon its non-performance. (f) The same may be said of goods distreined for rent, or other cause of distress: (8) which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distreinor, or party distreined upon; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession either absolute or qualified, but only a mere charge of oversight. (g)

Having thus considered the several divisions of property in possession, which subsists there only, where a man hath both the right and also the occupation of the thing; we will proceed next to take a short view of the nature of property in action, or such where a man hath not the occupation, but merely a bare right to occupy the thing in question; the possession whereof may however be recovered by a suit or action at law; from whence the thing so recoverable is called a thing or chose in action. (h) Thus, money due on a bond is a [*397] chose in action; for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law. If a man promises, or covenants with me, to do any act, and fails in it whereby I suffer damage, the recompense for this damage is a chose in action; for, though a right to some recompense vests in me at the time of damage done, yet what, and how large such recompense shall be, can only be ascertained by verdict; and the possession can only be given me by legal judgment and execution. In the former of these cases the student will observe, that the property, or right of action, depends upon an express contract or obligation to pay a stated sum: and in the latter it depends upon an implied contract that if the covenantor does not perform the act he engaged to do, he shall pay me the damages I sustain, by this breach of covenant. And hence it may be collected, that all property in action depends entirely upon contracts, either express or mplied; which are the only regular means of acquiring a chose in action, and of the nature of which we shall discourse at large in a subsequent chapter. (9) At present we have only to remark, that upon all contracts or promises, either express or implied, and the infinite variety of cases into which they are and may be spun out, the law gives an action of some sort or other to the party injured in case of non-performance; to compel the wrongdoer to do justice to the party with whom he has contracted, and, on failure of performing the identical thing he engaged to do, to render a satisfaction equivalent to the damage sustained. But while the thing, or its equivalent, remains in suspense, and the injured party has only the right and not the occupation, it is called a chose in action; being a thing rather in potentia than in esse: though the owner may have as absolute a property in, and be as well entitled to, such

[*398] things in action, as to things in possession.

And, having thus distinguished the different degree or quantity of dominion or property to which things personal are subject, we may add a word or two

(f) Cro. Jac. 245.

(g) 3 Inst. 108.

(h) The same idea, and the same denomination of property prevailed in the civil law. "Rem in bonis nostris habere intelligimur. quotiens ad recuperandum eam actionem habeamus.” (Fƒ. 41, 1, 52.) And again, •æque bonis adnumerabitur etiam, si quid est in actionibus, petitionibus, persecutionibus. Nam et hæc in bonis esse videntur. (Fƒ. 50. 16, 49.)

(8) [Or taken in execution by the sheriff. 2 Moo. and S. 197; 6 Bligh, 277; 2 Saund. 47. So the finder of a chattel has the right of possession against all the world, except the owner. 1 Str. 504; 1 Lead. Cas. 151.]

(9) There are many rights of action, however, which, spring from torts, and yet are recognized as property so as to be the subject of equitable assignment, and of survivorship to personal representatives on the death of the person entitled to maintain suit. This is so, generally, as to rights of action for such torts as are not merely personal. See North v. Turner, 9 S. and R. 244; McKee v. Judd. 12 N. Y. 622; Rice v. Stone, 1 Allen, 566; Jordan v. Gillen, 44 N. H. 424; Final v. Backus, 18 Mich. 218; Tome t. Dubois, 6 Wal. 548; More v. Massini, 32 Cal. 590. And so distinctly are such rights possessed of the attributes of property that it is not even competent for the legislature to deprive the party of them by prohibiting the maintenance of suit. Griffin v. Wilcox, 21 Ind. 370.

concerning the time of their enjoyment, and the number of their owners: in conformity to the method before observed in treating of the proper of things real.

First, as to the time of enjoyment. (10) By the rules of the ancient common law, there could be no future property, to take place in expectancy, created in personal goods and chattels; because, being things transitory, and by many accidents subject. to be lost, destroyed, or otherwise impaired, and the exigencies of trade requiring also a frequent circulation thereof, it would occasion perpetual suits and quarrels, and put a stop to the freedon of commerce, if such limitations in remainder were generally tolerated and allowed. But yet in last wills and testaments such limitations of personal goods and chattels, in remainder after a bequest for life, were permitted: (i) though originally that indulgence was only shewn, when merely the use of the goods, and not the goods themselves, was given to the first legatee; (k) the property being supposed to continue all the time in the executor of the devisor. But now that distinction is disregarded: (1) and therefore, if a man either by deed or will limits his books or furniture to A for life, with remainder over to B, this remainder is good. But, where an estate-tail in things personal is given to the first or any subsequent possessor, it vests in him the total property, and no remainder over shall be permitted on such a limitation. (m) For this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail; and therefore the law vests in him at once the entire dominion of the goods, being analogous to the fee-simple which a tenant in tail may acquire in a real estate.

*Next, as to the number of owners. Things personal may belong to their owners, not only in severalty, but also in joint-tendency and in [*399] common, as well as real estates. They cannot, indeed, be vested in coparcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse or other personal chattel be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements. (n) And, in like manner, if the jointure be severed, as, by either of them selling his share, the vendee and the remaining part owner shall be tenants in common, without any jus accrescendi or survivorship. (0) So, also, if 100l. be given by will to two or more, equally to be divided between them, this makes them tenants in common; (p) as, we have formerly seen, (q) the same words would have done in regard to real estates. But, for the encouragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property, and there shall be no survivorship therein. (r) (11)

(i) Equ. Cas. Abr. 360.
(n) Litt. 282. 1 Vern. 482.
(r) 1 Vern. 217. Co. Litt. 182.

(k) Mar. 106.
(0) Litt. § 321.

(2) 2 Freem. 206.
(m) 1 P. Wms. 290.
(p) 1 Equ. Cas. Abr. 232.

(9) Page 193.

(10) [At this day chattels real and personal cannot be directly entailed, but they may by deed of trust be as effectually settled to one for life with remainders over, as an estate of inheritance, if it be not attempted to render them unalienable beyond the period allowed by law. See Gilb. Uses and Trusts, by Sugden, 121, note 4, and Mr. Hargrave's note 5 to Co. Litt. 20 a.]

(11) [But although there is no survivorship as to partnership property in possession, yet at law there is as to choses in action, for when one or more partners, having a joint legal interest on a contract, dies, an action against the said parties must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, neither can he sue separately, but must resort to a court of equity to obtain from the survivor the testator's share of the sum which has been recovered. 1 East, 497; 2 Salk. 441; 1 Ld. Raym. 346 ; Carth. 170; Vin. Ab. Partner, D. See Cowp. 445; 1 Ves. Sen. 242. As to the conversion in equity of real estate into partnership stock, see 3 P. Wms. 158; 1 Russ. and M. 45; 7 Sim. 271; 8 id. 829; 11 id. 496.]

TITLE TO THINGS PERSONAL.

CHAPTER XXVI.

[Book II.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

WE are next to consider the title to things personal, or the various means of acquiring, and of losing, such property as may be had therein: both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one, without contemplating the other also. And these methods of acquisition or loss are principally twelve:-1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession. 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.

And, first, a property in goods and chattels may be acquired by occupancy: which, we have more than once remarked, (a) was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged, by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts, and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, [*401] where such things are found without any other owner, they for the most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.

1. Thus, in the first place, it hath been said, that any body may seize to his own use such goods as belong to an alien enemy. (b) For such enemies, not being looked upon as members of our society, are not entitled during their state of enmity to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seize upon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public authority of the state, residing in the crown; (c) and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And, therefore, it hath been holden, (d) that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. (1) It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner only shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sunset puts in his claim of property. (e) Which is agreeable to the law of nations, as understood in the time of Grotius, (f) even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours; though [*402] the modern authorities (g) require, that before the property can *be changed, the goods must have been brought into port, and have continued a night intra presidia, in a place of safe custody, so that all hope of recovering them was lost. (2)

(a) See pages 3. 8, 259.

(c) Freem. 40. (e) Ibid.

(d) Bro. Abr. tit. propertie, 38. forfeiture. 57.
(b) Finch. L. 178.
(g) Bynkersh. quæst. jur. publ. 1. 4 Rocc. de Assecur. not. 66.

(ƒ) De j. b. § p. 1. 3, c. 6, í 3

(1) And his right to bring suit upon contracts made during peace is only suspended, not forfeited, by the war. Wheat. Int. Law, pt. 4, ch. 1, § 12.

(2) [By the practice of the law of nations, in order to vest the property, at least of a ship taken at sea, in the captors, a legal sentence of condemnation by a prize court is necessary. 1 Rob. 139; 3 id. 97 and 236.] This is now the law of England, and is regulated by statute 27 and 28 Vic. c. 25.

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And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war; (h) at least till his ransom be paid. (i) (3) And this doctrine seems to have been extended to negro servants, () who are purchased when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of the masters who buy them: though, accurately speaking, that property (if it indeed continues), consists rather in the perpetual service, than in the body or person of the captive. (k)

2. Thus again, whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays, or wreck, or hidden treasure; for these, we have formerly seen, (7) are vested by law in the king, and form a part of the ordinary revenue of the

crown.

3. Thus, too, the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an ancient window (4) overlooking my neighbour's ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him than in me. If my neighbour * makes a tan-yard, so as to annoy and render less salubrious the air of my house and gardens, the law will furnish me [*403 ] with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current. (5)

4. With regard, likewise, to animals feræ naturæ all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or if dead, are absolutely his own so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. (6) But those animals which are not expressly so reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game, itself, till these civil prohibitions were issued:

(h) Bro. Abr. tit. propertie, 18.

(i) We meet with a curious writ of trespass in the register (102), for breaking a man's house, and setting such his prisoner at large. Quare domum ipsius A. apud W. (in qua idem A. quendam H. Scotum per ipsum A. de guerra captum tanquam prisonem suum, quousque sibi de centum libris, per quas idem H. redemptionem suam cum præfato A. provita sua salvanda feceret satisfactum foret, detinuit) fregit, et ipsum H. cepit et abduxit, vel quo voluit abire permisit, fc." (j) 2 Lev. 201.

(k) Carth. 396. Ld. Raym. 147. Salk. 667.

(7) Book I, ch. 8.

(3) In England the ransom of ships, except in cases of necessity to be allowed by the admiralty, is made illegal by statute. See 2 Doug. 649; 3 Taunt. 6.

(4) [The subject of this paragraph does not belong to the head of personal property. Rights to light, air, &c., are not of a personal nature, but are incidents to the enjoyment of real estate; and even easements annexed to the person, or in gross, are real property.] See ante, p. 395, note.

(5) See the preceding note. And on the general subject of rights in water courses, see the treatise on that subject by Mr. Angell.

(6) [See this controverted in page 419, note.]