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It is sometimes said that the rights of taxation and eminent domain are the relics of feudal tenure. But they are rather essential incidents to any successful government, whatever may be its form. In fact, these two rights, together with the police power, were known to the laws of ancient Rome centuries before feudalism appeared in Europe.

$69. Corporeal and Incorporeal Property. As to its tangibility, property is divided into corporeal and incorporeal. Corporeal property is that which is visible and tangible. Incorporeal property is that which is invisible and intangible in its nature. It includes rights to corporeal things or to some benefit to be derived therefrom, as distinguished from the things themselves.16

The distinction between these two classes of property is a fundamental one. All things are either tangible or intangible; they may or they may not be seen. It is not necessary to dwell at this point on the nature of corporeal property. We have no difficulty in recognizing it. It is that which we see about us on all sides, and are constantly using, buying, and selling. Examples of it are lands, houses, furniture, and trees. A word is necessary, however, as to the nature of incorporeal things. They are intangible rights, existing only in contemplation of law. It is obvious that this class of property is an incident of a more or less artificial state of civilization. It was difficult for primitive men to deal with things which their hands could not grasp nor their eyes see. Things incorporeal were, however, recognized by the Roman

compensation being made therefor. It may take a portion of his property by way of taxation for the support of the government. It may control the use and possession of his property as far as may be necessary for the protection of the rights of others, and to secure to them the equal use and enjoyment of their property. The doctrine that each one must so use his own as not to injure his neighbor - sic utere tuo ut alienum non laedas' is the rule by which every member of society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of state authority. Except in cases where property may be destroyed to arrest a conflagration or the ravages of a pestilence, or be taken under the pressure of an immediate or overwhelming necessity to prevent a public calamity, the power of the state over the property of the

citizen does not extend beyond such limits. It is true that the legislation which secures to all protection in their rights and the equal use and enjoyment of their property embraces an almost infinite variety of subjects. Whatever affects the peace, good order, morals, and health of the community comes within its scope; and every one must use and enjoy his property subject to the restrictions which such legislation imposes. What is termed the police power' of the state, which from the language often used respecting it one would suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals, in their intercourse with each other and in the use of their property, so far as may be required to secure these objects." Munn v. Illinois, 94 U. S. 113, 145.

16. 2 Blackstone Comm. 20.

jurists in the time of Justinian, and with the development of the modern commercial spirit, they have become an important factor in civilization.

It has been said that these incorporeal rights relate to corporeal property. A few examples will make this clear. The ownership of land may be in one person while the right to pass over it is in another. Both the land and the right of way are property; but the former is corporeal, while the latter is incorporeal. Again, let us suppose that a man owes another a debt, which is overdue. The creditor has the intangible right to payment, which is, of course, incorporeal. When payment is made the incorporeal right ceases. The corporeal property comes into his possession.17 Other examples of incorporeal property are franchises, annuities, rents, etc. 18

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§ 70. Real and Personal Property. In the Roman law, property was divided into movables and immovables. Under the feudal system, movable property was known as goods and chattels," while immovable property was called "lands, tenements and hereditaments." In the modern English and American law, immovable property is called "real property," while that which is movable is known as "personal property." Real property is therefore defined by Blackstone as, "such as is permanent, fixed, and immovable, which cannot be carried out of its place; as lands and tenements." Personal property is defined by the same distinguished author as, "goods, money, and all other movables, which may attend the owner's person wherever he thinks proper to go.'

" 19

The division of property into movable and immovable is equally as fundamental as that into corporeal and incorporeal, and it was certainly recognized much earlier in history. It seems natural to draw a distinction between land, which is incapable of being destroyed or carried away, and cattle, which may be transferred from one place to another or killed. These two things, land and cattle, seem to have been the leading forms of property in primitive times. In process of time, the term "lands" came to include not only the soil, but also rights issuing therefrom, as well as houses and other things permanently annexed thereto. The term "goods and chattels" corresponds very closely to the mobiles," or movable things, of the Roman law. It was a comprehensive term, including all property which was not regarded as permanent and stable in its character.

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The terms "lands," "tenements," and "hereditaments " had a legal meaning quite different from their ordinary signification.

17. See infra, § 224. 18. See infra, § 190.

19. 2 Blackstone Comm. 15.


"Lands" included not only the soil itself, but also the space above it, as well as houses and things permanently annexed, and extended down to the center of the earth. "Tenements was a term of still wider signification, including all property which might be held of a feudal lord. It included not only lands, but also various incorporeal kinds of property. "Hereditaments" is still more comprehensive, consisting of anything which can be inherited. An heirloom, for example, descended to the heir, and thus, although essentially a movable, was classed with immovables, for only the latter were strictly inheritable. The terms "real" and "personal," as applied to property, came into use at a later date. It is sometimes said that immovable property was called "real," because when the owner was deprived of the possession he could recover the real thing itself, rather than mere damages, as is usual in the case of personal property. Perhaps the true reason is that, at the time when the term was adopted, this species of property was the only one which was regarded as of a real or substantial kind. Goods and chattels were shifting and unreliable, according to the opinion of that age. They were called "personal," perhaps, because they were capable of attending the owner's person wherever he might go. One of the most striking sociological movements of modern times is the development of personal property. In feudal times it was counted as of an importance entirely inferior to land. But the feudal spirit has vanished, and movables now constitute a large percentage of the world's wealth.

71. Fixtures. A fixture is an article of personal property physically annexed to land in such a way as to become a part thereof. By such annexation it assumes the nature of real property.

The distinction between real and personal property is in most instances clear; but it often happens that a particular article may be personal under some conditions and real under others. This occurs usually when a personal thing is attached to realty in such a way as to change its character from movable to immovable; the term "fixtures" is used by the majority of courts and writers on the subject to designate that personal property which thus becomes real by annexation. There are some courts which have used the term in an opposite sense, as meaning that personalty which, although annexed, yet retains its personal character; but these are in the minority, and the settled meaning of the word is as first stated. This usage seems not only preferred by the authorities, but is more in conformity with the general popular meaning of the term. A fixture is that which is fixed. Its mean

ing involves a stability which is not consistent with its retaining its movable character.20

72. Things Not the Subject of Individual Ownership. While most things are the subject of individual ownership, there are, as pointed out by Blackstone, a few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being of such a nature that nothing but an usufructuary property is capable of being had therein; 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 those animals which are said to be feræ naturæ, or of a wild and untamable disposition, which any man may seize upon and keep for his own use and pleasure. All these things, so long as they remain in possession, 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 other man has an equal right to seize and enjoy them afterward.21

20. The authorities supporting this view are numerous. See Cook v. Whiting, 16 Ill. 480; Bartlett v. Wood, 32 Vt. 372. Contra, Washburn Real Prop. 18. Some writers suggest a compromise between the

definitions, by drawing a distinction between movable and immovable fixtures, or between real and personal fixtures. See 19 Cyc. 1033.

21. 2 Blackstone Comm. 14.

873. In General.



74. Substantive and Adjective Law. 75. Public and Private Law.

76. Public Substantive Law.

77. Private Substantive Law.
78. Public Adjective Law.
79. Private Adjective Law.
80. Summary.

§ 73. In General.

When it is sought to reduce the large mass of legal rules to systematic form, and to classify them, various difficulties present themselves. Two different methods have been pursued by legal writers. The first of these, which may be called the scientific method, is adopted by the authors of works on analytical jurisprudence. It is based on the deductive plan. In it terms are used which, while they have an exact scientific meaning, are unknown in many instances to the practical lawyer. The second method, which may be called the popular method, is inductive in its character. It aims to use the topics already universally known in the law, grouping them together, until all the rules which are ordinarily administered find a place in one or the other of several leading groups. This latter method is adopted in the present chapter. There are two general divisions of the law, however, which are recognized under both the scientific and the popular systems of classification. One of these is that into substantive and adjective law; the other, that into public and private law.

8 74. Substantive and Adjective Law. which creates and defines legal rights. system of rules which provides for and of rights and the redress of wrongs.

Substantive law is that Adjective law is that regulates the enforcement

It is obvious that there are radical distinctions between those rules which serve to determine what rights are possessed by persons and those which serve merely to provide methods by which those rights may be protected and enforced. The substantive law, on the one hand, is necessarily abstract, while the adjective law is concrete, regulating as it does the machinery of the courts, or, in other words, the method by which the substantive law is ap plied to particular cases. Without the adjective law, the substantive law would be of no effect, while without the substantive law the adjective law would have no reason for its existence.

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