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 forefts and other wafte grounds, which were omitted to be appropriated in the general distribution of lands; fuch alfo are wrecks, eftrays, and that species of wild animals which the arbitrary conftitutions of pofitive law have distinguished from the rest by the well-known appellation of game. With regard to these and fome others, as difturbances and quarrels would frequently arise among individuals, contending about the acquifition of this fpecies of property by firft occupancy, [15] the law has therefore wifely cut up the root of diffenfion, by vefting the things themselves in the fovereign of the state: or else in his representatives appointed and authorised by him, being usually the lords of manors (5). And thus the legislature of England has universally promoted the grand ends of civil fociety, the peace and fecurity of individuals, by steadily purfuing that wife and orderly maxim, of affigning to every thing capable of ownership a legal and determinate owner.

(5) The learned Judge has frequently repeated in his commentaries, that all the game belongs to the king, or to his grantees, being ufually the lords of manors. This is a doctrine which the editor is obliged to controvert. His reafons and authorities are ftated at large in a note to page 419.

CHAPTER THE SECOND.

OF REAL PROPERTY; AND, FIRST, OF CORPOREAL HEREDITAMENTS.

ΤΗ

1

HE objects of dominion or property are things, as 'contradiftinguished from perfons: and things are by the law of England diftributed into two kinds; things real, aud things perfonal. Things real are fuch as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things perfonal are goods, money, and all other moveables; which may attend the owner's perfon wherever he thinks proper to go.

IN treating of things real, let us confider, first, their feveral forts or kinds; fecondly, the tenures by which they may be holden; thirdly, the eftates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and lofing it.

FIRST, with regard to their feveral forts or kinds, things real are ufually faid to confift 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 ftill greater extent, and though in it's vulgar acceptation

9

ation it is only applied to houfes and other buildings, yet in it's original, proper, and legal sense, it fignifies every thing that may be bolden, provided it be of a permanent nature; whether it be of a substantial and fenfible, or of an unfubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other folid objects, but also to offices, rents, commons, and the like": and, as lands and houfes 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 unfubftantial kind, are, all of them, legally fpeaking, tenements. But an hereditament, fays fir Edward Coke, is by much the largest and most comprehensive expreffion: for it includes not only lands and tenements, but whatfoever may be inherited, be it corporeal, or incorporeal, real, perfonal, or mixed. Thus an heir-loom, or implement of furniture which by cuftom defcends to the heir together with an houfe, is neither land, nor tenement, but a mere moveable: yet, being inheritable, is comprifed under the general word herditament: and fo a condition, the benefit of which may defcend to a man from his ancestor, is alfo an hereditament d.

HEREDITAMENTS then, to ufe the largest expreffion, are of two kinds, corporeal and incorporeal. Corporeal confift of fuch as affect the fenfes; fuch as may be seen and handled by the body: incorporeal are not the object of fenfation, can neither be seen nor handled, are creatures of the mind, and exift only in contemplation.

CORPOREAL hereditaments confift wholly of fubftantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, fays fir Edward Coke, comprehendeth in it's legal fignification any ground, foil, 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 confift, faith he, of two things; land, which is the foundation, and ftructure thereupon: fo that, if I convey the land or ground, the structure or building paffeth therewith. It is obfervable that water is here mentioned as a fpecies of land, which may feem a kind of folecifm; but fuch is the language of the law: and therefore I cannot bring an action to recover poffeffion of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for fo many cubical yards; or, by fuperficial measure, for twenty acres of water; or by general defcription, as for a pond, a watercourfe, 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 1. water is a moveable wandering thing, and must of neceffity continue common by the law of nature; so that I can only have a temporary, tranfient, ufufructuary, 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 fubstantial property; of which the law will take notice, and not of the other.

For

LAND hath alfo, in it's legal fignification, an indefinite extent, upwards as well as downwards. Cujus eft folum, ejus eft ufque 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 furface of any land and the center of the earth,. belongs to the owner of the furface; 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, he grants thereby all his mines of metal and other foffils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are

f Brownl. 142.

equally

equally fufficient to pass them, except in the inftance of water; by a grant of which, nothing paffes but a right of fishing: but the capital distinction is this; that by the name of a caftle (1), meffuage, toft, croft, or the like, nothing else will pafs, except what falls with the utmoft propriety under the term made use of; but by the name of land, which is nomen generaliffimum, every thing terreftrial will pafs ".

(1) By the name of a caftle, one or more manors may be conveyed; and è converfo by the name of a manor, a castle may pass. 1 Inft. 5. 2 Infl. 31.

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