CHAPTER XXIII.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament, which, according to the arrangement formerly laid down (a), now presents itself in its turn for consideration, is in its wider sense any possession or subject of property, whether real or personal, capable of being transmitted to heirs, and not the object of the bodily senses (b). But as there is scarcely any instance of a subject of this description in the class of things personal (c),—which almost invariably devolve to the executor and not to the heir,-the term of incorporeal hereditament is, in effect, exclusively applied to the class of things real; and may in such case be defined as a right annexed to, or issuing out of, or exercisable within, an hereditament corporeal of that class (d). Thus a man may have a right of common of pasture for his cattle, or a

(a) Vide sup. p. 175.

(b) Its definition in Blackstone (vol. ii. p. 20) is "a right issuing "out of a thing corporate (whether "real or personal) or concerning, or "annexed to or exercisable within "the same."

(c) An annuity, descendible to a man's heirs, is, however, an instance that occurs. (Co. Litt. 20 a.)

(d) Co. Litt. 6 a, 20 b; Plowd. 170. The term "incorporeal hereditament" is often applied so as to include remainders and reversions (as

distinct from estates in possession) in corporeal hereditaments (Hale, Anal.; 2 Sand. Us. 39); but the more convenient and juster arrangement is that adopted by Blackstone and followed in the text. The larger use of the term confounds the estate which may be had in the subject of property, with the subject of property itself. A similar error is pointed out, sup. p. 172, n. (a), in reference to the classification made by Blackstone of chattels real as things personal.

right of way (both of which are incorporeal hereditaments) to be exercised over the land (which is corporeal) of another person. [As the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled; incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And indeed if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing or hereditament which produces them.] Thus if we take the example of the right of feeding cattle in another's land, the grass, which is the fruit or product of the right, is doubtless of a corporeal nature; yet the right itself [is a thing invisible— has only a mental existence, and cannot be delivered over from hand to hand.] Incorporeal hereditaments seem never to have been reduced to any regular system of division, nor is even a complete enumeration of them to be discovered in our books. But they consist for the most part-though, as we shall see hereafter, not exclusively (e) —of rights in alieno solo; and these are generally distributable either into profits, such as the right to feed cattle, or to take fish (ƒ); or easements, tending rather to the convenience than the profit of the claimant, such as a right of way (g).

In the account given of incorporeal hereditaments by Blackstone, he takes specific notice of advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, pen

(e) Vide post, p. 674, as to franchises.

(f) As to water issuing from a well or spring, see Race v. Ward, 4 Ell. & Bl. 702.

(g) As to this distinction, see 2 &

3 Will. 4, c. 71; Robins v. Barnes, Hob. 131; Peers v. Lucy, 4 Mod. 365; Jac. Dict. "Easement," "Prescription;" Manning v. Wasdale, 5 Ad. & El. 758, 413; Bailey v. Appleyard, 8 Ad. & El. 167.

sions, annuities, and rents (h). But for the discussion of many of these subjects, places more distinctly appropriate will be found hereafter; while, on the other hand, the enumeration omits some incorporeal hereditaments of importance, which can nowhere be introduced with so much advantage as in the present chapter. We shall therefore depart from Blackstone's method in this particular, and, in lieu of it, direct the reader's attention to the following heads;-commons, ways, watercourses, lights, franchises, and rents (i).

1. Common (or right of common) is [a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like (j).] And it derives its name from the community of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right; all which parties are entitled to bring actions for injuries done to their respective interests-and that both as against strangers and against each other (k).

(h) 2 Bl. Com. 21. The enumeration in Hale's Analysis (p. 48), is as follows:-" Rents, services, tithes, commons, and other profits in alieno solo; pensions, offices, franchises, liberties, villeins, dignities."

(i) It has appeared to the author, that advowsons and tithes will be more conveniently examinable as part of the general law relating to the church (vide post, bk. IV. pt. II. c. III.); that offices and dignities, which indeed have in most instances no connection with the realty, will be more properly considered in that part of the work relating to the state or government (vide post, bk. Iv. pt. 1. cc. 1x. x.); that the notice due to annuities will be most advantageously bestowed upon them in connection with rents

VOL. I.

(vide post, p. 681): and that with respect to corodies and pensions it will be sufficient briefly to state that they were both, at the common law, species of allowances in money or food, payable by religious houses to the king, their founder, for the sustenance of his servants. (See Cowell's Inter. in tit.; F. N. B. f. 230, 233; 34 & 35 Hen. 8, c. 16.) On the other hand he has been of opinion, that watercourses and lights (omitted by Blackstone) are of sufficient importance to deserve a place in the present list.

(j) As to this definition, see Lloyd v. Earl Powis, 4 Ell. & Bl. 485.

(k) For the law on this subject, see Robert Marys's case, 9 Rep. 113; 1 Saund. by Wms. 346.

τυ

[Common is chiefly of four sorts (k)-common of pasture, of piscary, of turbary, and of estovers.]

1. Common of pasture. This is the principal and most frequent sort, being the [right of feeding one's beasts in another's land,] and it is [either appendant, appurtenant, because of vicinage, or in gross (1).]

Common of pasture appendant is the privilege belonging to the owners or occupiers of arable land holden of a manor, to put upon the wastes (m) of the manor (thence called commons) their commonable beasts; that is, such beasts as are necessary either for the ploughing of land or for its manuring, viz., horses and oxen, cows and sheep (n). This is a matter of universal right (o); and it originally arose in this manner, that where a lord having a certain extent of waste ground, enfeoffed any one of a parcel of arable land to hold of his manor in socage, for services to be rendered, it was found necessary to allow the feoffee to have common of pasture in the waste ground, as incident to his tenancy: for he could not plough or manure his own land without beasts, nor could he on the other hand sustain the beasts upon it, while it was sown with corn (p). From this of course it follows, that it is only in respect of arable land that common appendant can be claimed (q); though it may be claimed by that name, as appendant to a farm in fact containing pasture at the present day; for

(k) A fifth species is also recognized in the books, viz., common in the soil, as to which, vide post, p. 662.

(4) Co. Litt. 122.

(m) As to the waste of a manor, vide sup. 220.

(n) 37 Hen. 7, 34 (Year Book), F. N. B. 180; 4 Vin. Ab. in tit. Com. (F). It is laid down in the books, that swine, goats, geese, and the like, are not commonable animals, as "not being necessary to "plough or compester the soil."—

(Bro. Ab. tit. Com. 13; Fin. Law, 56; Co. Litt. 122 a.)

(0) 1 Rol. Ab. 396, 1. 44; Co. Litt. 122 a. It is said by Blackstone (vol. ii. p. 33) to obtain in Sweden and the other northern kingdoms, much in the same manner as in England. And he cites Stiernh. de Jure Suevor. l. 2, c. 6.

(p) Tyringham's case, 4 Rep. 37 a; Co. Litt. 122 a; Bennett v. Reeve, Willes, 231; Reeves's Hist. Eng. Law, vol. i. p. 262.

(q) 1 Rol. Ab. 397, 1. 28, 29.

the land shall be presumed (where there is usage to sustain the claim) to have been all originally arable (r). It follows, also, that common appendant is incapable of being created at the present day (s); for all manorial tenure must have had existence before the passing of the statute of Quia emptores, in the eighteenth year of Edward the first (t).

Common appurtenant, which is said to be frequently confounded with common appendant (u), [ariseth from no connection of tenure, nor from any absolute necessity; but may be annexed to lands in other lordships (v), or extend to other beasts besides such as are generally commonable; as to hogs, goats, geese or the like (x). This, not arising from any natural propriety or necessity, like common appendant, is not therefore of general right,] but can only be claimed by grant, or by the long usage of particular persons to enjoy the same (y); which latter title is commonly called a title by prescription; and is supposed by the law to be founded on a special grant or agreement originally made for this purpose.

[Common because of vicinage or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another; the beasts of the one straying naturally into the other's fields, without any molestation from either. This, indeed, is only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits; and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town

(r) Bac. Ab. Common, (A 1). (s) 1 Rol. Ab. 396, 1. 42; 26 Hen. 8, 4 a.

(t) Vide sup. p. 239.

(u) Bennett v. Reeve, Willes, 232. (v) Sacheverill v. Porter, Cro. Car. 482; 1 W. Jones, 397, S. C.

(x) Vide sup. p. 658, n. (n). (y) Tyringham's case, 4 Rep. 36b; Cowlan v. Slack, 15 East, 108; as to title by prescription, vide post, p. 692, where it will be explained what length of usage is sufficient to create a prescription.