[pond into another man's, I have no right to reclaim it (d). 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 cælum, 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 (e). 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 (ƒ); 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 (g).] The word [tenement is 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, (d) See Race v. Ward, 4 Ell. & Bl. 702. (e) Shep. Touch. 90; Raine v. Alderson, 1 Arnold, 329. (f) Blackstone here adds, " except in the instance of water." But it would seem that the case of water cannot properly be considered as an exception, because "water" is not the particular name, in contemplation of law, of the thing intended to be passed; vide sup. p. 173. (g) Co. Litt. 4 a-6 b. This word land is used in a still larger sense in certain statutes; as in 3 & 4 Will. 4, c. 106, (for regulating the law of inheritance,) where it is provided, that, so far as the enactments of that statute are concerned, "land" shall comprise every interest, real or personal, capable of being inherited, and also money to be laid out in the purchase of land, &c.; see also c. 105, the act for regulating the law of dower. [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 is the primary subject of tenure) but rents, commons, and several other rights and interests issuing out of, or concerning land (h). [But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression (i); 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 tenements, 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 (k).] 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 (h) Co. Litt. 6 a, 20 a, 78 a; and see R. v. Dersingham, 7 T. R. 671; Vin. Ab. Grants (T). (i) Co. Litt. 6 a. As to the term hereditaments, see also Moore v. Denn, 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 (1). (1) As to incorporeal hereditaments, vide post, bk. II. pt. 1. c. xx111. CHAPTER II. OF TENURES. IN proceeding to treat of corporeal hereditaments, we shall consider, in the first place, the tenures by which they may be holden; secondly, the estates which may be had in them (a); and lastly, the title to them, or the manner in which those estates may be acquired and lost (b). And, first, 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 (c); 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 upon 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 (d). 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 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); 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 (f), was called, about the close of the tenth century (and, as there is reason to suppose, much earlier), a feud (g), a term which signified in the German language a stipendiary estate, and stood in contradistinction to allodium (h), the phrase applied to (f) The portions of land thus distributed were at first revocable at the will of the lord, and were then, it is said, called munera. They were afterwards held for some limited time (usually one year), and called beneficia. In process of time they began to be granted in perpetuity, and were then called feuda according to Spelman, who cites Cujacius, Feud. lib. 3, p. 180. (See Spelman on Feuds, 4, 6, 9; Cowell's Interpreter, in verb.) (g) Feudum is said to be compounded of od, possession or estate, and feo, wages, pay.-Robertson's Hist. Ch. V. vol. i. n. (8), citing Wachteri, Gloss. Germ. voc. Feodum. (h) Allodium is stated by Robertson (ibid.) to be compounded of the German particle an and lot, and to signify land obtained by lot; and he cites the same glossary, voc. Allodium. Another derivation, however, and one perhaps more probable, is given by Blackstone, who considers it as compounded of all (totum), and odh (proprietas) in the Northern languages.-2 Bl. Com. p. 45, n. |