[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. 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 in general to the owner of the surface. So that the word "land" includes not only the face of the earth, but every thing under it or over it (d). 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 (e), but the capital distinction is this, that by the name of a 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, every thing terrestrial will pass (f).] [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 every thing that may be holden,] that is, be the subject of tenure, of which we shall speak at large in the following chapter. In ordinary legal intendment, it includes not only land (which was the primary subject of (d) Shep. Touch. 90; Raine v. Alderson, 1 Arnold, 329. (e) Blackstone here adds "except in the instance of water," (vide sup. 157) that it does not seem to be properly an exception. (f) Co. Litt. 4 a-6 b. This word land is in a late statute used in a still larger sense, so far as its enactments are concerned, comprising every interest, real or personal, capable of being inherited, and also money to be laid out in the purchase of land, 3 & 4 Will. 4, c. 106; see also c. 105. tenure) but rents, commons, and several other rights and interests issuing out of, or concerning land (g). [But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression (h), 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 the house, is neither land nor tenement, but a mere moveable 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 a hereditament (i).] It is under the larger term of hereditaments, though it be not strictly confined to things real, that the subjects of real property have been usually arranged; and to this method it will therefore be most convenient to adhere. [Hereditaments, then, 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.] If we apply the word hereditaments to the realty only (which is its most ordinary use), corporeal hereditaments are in fact the same with land, of which enough has been said; incorporeal are the rights and profits annexed to or issuing out of land. It is to corporeal hereditaments, that our attention must be first directed; and whatever is said generally, hereafter, as to the law of real property, is to be understood as referring to its corporeal subjects only, until those of the incorporeal kind present themselves in their turn, for separate consideration, in a distinct chapter. (g) Co. Litt. 6 a, 20 a, 78 a. R. v. Dersingham, 7 T. R. 671; Vin. Ab. Grants (T). (h) Co. Litt. 6, a. As to heredita ments, see also Moore v. Denn, 2 Bos. IN proceeding to treat of corporeal hereditaments, we shall consider, 1st, the tenures by which they may be holden; 2ndly, the estates which may be had in them; and, 3rdly, the title to them, and the manner in which it may be acquired and lost. And, 1st, as to tenures. These it will be impossible to understand with any degree of accuracy, unless we have some previous acquaintance with the nature of feuds, or the feudal law (a); a system established during the middle ages throughout the greater part of the European continent, and from thence derived to England, where its spirit still lives in several of her institutions. This chapter will therefore be dedicated, in the first instance, to an inquiry into the feudal system; after which we shall revert to our own municipal law, and particularly that branch of it which relates to the Tenure of real property, a doctrine that we shall find to be altogether founded in feudal principles. Feuds were introduced under the new dynasties founded by the barbarous tribes, who, during the fourth, fifth and sixth centuries, poured themselves from Germany and the neighbouring countries into the Roman empire (b). In every province which they subjugated, large tracts of territory were divided by lot among the conquerors, some portion falling to the king or general of the invading tribe, and the rest to his soldiers, who received their (a) "I do marvel many times," says Spelman," that my Lord Coke, adorning our law with so many flowers of antiquity and foreign learning, hath not turned into this field, from whence so many roots of our law have, of old, been taken and transplanted."-Spel. Orig. of Terms, c. viii. (b) See Spelman of Feuds, and Wright of Tenures; Co. Litt. by Harg. 64 a, n. (1), 191 a, n. by Butler. shares as free and independent property, subject only to the condition of bearing arms, as occasion might require, in the defence of the community from hostile aggression. Of the lands assigned to the sovereign of the tribe, certain portions were afterwards usually distributed by him among his adherents, and chiefly among his courtiers or companions (comites) (c); but the interest they derived under these grants was not strictly in the nature of property; it was of a beneficial or usufructuary kind only, a mere stipendiary return for services (commonly services of a military description) which they were expected to render to their master, and subject at some future period to resumption; the proprietas, or actual ownership of the land, being considered as still residing in the sovereign himself. This species of interest, which we find at first described as a benefice (beneficium), was called, about the close of the tenth century (and, as there is reason to suppose, much earlier), a feud (feudum) (d), a term which signified in the German language a stipendiary estate, and stood in contradistinction to allodium (e), the phrase applied to that independent species of property, before described, which had originally become vested by allotment in the conquerors of the country. There began thus to arise two distinct modes of holding or possessing land. The stipendiary held of (that is, in relation to and depending upon) a superior; the allodialist held of no one, but enjoyed his land as free and independent property; the first of these methods applying exclusively to royal domains granted out in the manner we have described, the other to such land as had been allotted to the troops on the original conquest, or to land never appropriated by the barbarians, but left in the possession of the ancient owners; for the holding of this was of the same independent character, and received the same appellation of allodium. The interest of the stipendiary or feudal tenant did not originally extend beyond his own life (if it was not even determinable at the royal pleasure); but in course of time it gradually improved in stability, and acquired an hereditary character, which led by a natural progress to the practice of subinfeudation; for the stipendiary, considering himself now as substantially the owner, began to imitate the example of his sovereign, by carving out portions of the benefice or feud, to be held of himself by some other person, on terms and conditions similar to those of the original grant; and a continued chain of successive dependencies was thus established, connecting each stipendiary or vassal (ƒ) (as he was termed) with his immediate superior or lord. The beneficiary or feudal relation was well suited to those times of violence and insecurity, and was found by experience to be attended with great advantage both to the lord and the vassal: to the former, as it secured to him a band of military retainers attached by duty and by sentiment to his person; and to the latter, as it brought them into close connection with a powerful superior, under whom they found that shelter from oppression, which the law was then too weak to afford. The effect of this, as regarded the allodial species of property, was remarkable: the allodialist, though enjoying a nominal independence, found himself exposed to all the evils and dangers attendant on a state of civil confusion, and began to contemplate with envy the comparative (f) From gwas, a Celtic word for a servant.-Hallam's Middle Ages, p. 155, 7th ed. |