the name of water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, 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 (f). For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, 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 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 to the owner of the surface (4); 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 fos

sils, his woods, his waters, and his houses, as well as his fields and [*19] meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of water; by a grant of which, nothing passes but a right of fishing (g) (5): but the ca(f) Brownl. 142.

(4) The passage in the text requires a little qualification.

The freehold of customary lands, and lands held by copy of court roll, is in the lord of the manor. In such lands, unless the act be authorized by special custom, (Whitchurch v. Holworthy, 19 Ves. 214. S. C. 4 Mau. & Sel. 340), it is neither lawful for the customary tenant, or copyholder, to dig and open new mines, without the licence of the lord of the manor; nor for the lord, without the consent of the tenant, to open new mines under the lands occupied by such tenant. (Bishop of Winchester v. Knight, 1 P. Wms. 408. And see, as to the latter point, the opinion of two Judges against one, in the Lord of Rutland v. Greene, 1 Keble, 557, and infra). The acts which a lord of a manor inay do by custom, to enable him profitably to work mines, previously opened, under lands which are parcel of his manor, must not be unreasonably oppressive upon the occupier of the lands, or the custom cannot be maintained. (Wilkes v. Broadbent, 1 Wils. 64). And the lord of a manor cannot open new mines upon copyhold lands within the manor, without a special custom or reservation; for the effect might be a disinherison of the whole estate of the copyholder. The lord of a manor may be in the same situation with respect to mines as with respect to trees: that is, the property may be in him, but it does not follow that he can enter and take it. The lord must exercise a privilege over the copyholder's es

(g) Co. Litt. 4.

tate, if during the continuance of the copyhold he works mines under it; and a custom or reservation should be shewn to authorize such a privilege: but as soon as the copyhold is at an end, the surface will be the lord's as well as the minerals, and he will have to work upon nothing but his own property. (Grey v. The Duke of Northumberland, 13 Ves. 237. 17 Ves. 282; and S. P., at law, under the title of Bourne v. Taylor, 10 East, 205, where all the leading cases on the subject are discussed). The right to mines may be distinct from the right to the soil. In cases of copyholds, a lord may have a right under the soil of the copyholder: but where the soil is in the lord, all is resolvable into the ownership of the soil, and a grant of the soil will pass every thing under it. (Townley v. Gibson, 2 T. R. 705).

(5) Or the right to use the water, as in the case of rivers and mill-streams. Twenty years exclusive enjoyment of the water in any particular manner by the occupier of the adjoining lands, affords a conclusive presumption of right in the party so enjoying it; and he may maintain an action if the water be diverted from its course, so that the quantity he has thus been accustomed to enjoy is diminished, although the fishery may not be injured, 6 East, 208. 7 East, 195. 1 Wils. 175; and he may legally enter the land of a person, who has occasioned a nuisance to a watercourse, to abate it. 2 Smith's Rep. 9. Com. Dig. Pleader. 3 M. 41.

pital distinction is this, that by the name of a castle (6), messuage (7), toft (8), croft (9), 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 (h)

CHAPTER III.

OF INCORPOREAL HEREDITAMENTS.

An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same (a). It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, 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

(A) Co. Litt. 4, 5, 6.

(6) By the name of a castle, one or more manors may be conveyed; and e converso, by the name of a manor, a castle may pass. I

Inst. 5. 2 Inst. 31.

"Land may be parcel of a castle; castle, honour, and the like, are things compound, and may comprise messuages, lands, meadows, woods, and such like." (Hill v. Grange, 1 Plowd. 168. 170.)

(7) A messuage, in intendment of law, primâ facie comprehends land, and it will be presumed that a curtilage, at least, belongs thereto. (Scholes v. Hargreaves, 5 T. R. 48. Hockley v. Lamb, 1 L. Raym. 726. Scamler v. Johnson, T. Jones, 227. Patrick v. Lowre, 2 Brownl. 101; it should be observed, however, that North v. Coe, Vaugh. 253, is contra). Rights of common, and even of several pasturage, may be appurtenant to a messuage; (Potter v. Sir Henry North, 1 Ventr. 390); or to a cottage; (Emerton v. Selby, 1 L. Raym. 1015); and where common is appurtenant, in right, to a tenement, it goes with the inheritance. (1 Bulst. 18.) So, a garden may be said to be parcel of a house, and by that name will pass in a conveyance. (Smith v. Martin, 2 Saund. 401. a. S. C. 3 Keb. 44). It has also been held, that land may pass as pertaining to a house, if it hath been occupied therewith for ten or twelve years, for by that time it has gained the name of parcel or belonging, and shall pass with the house in a will or lease. (Higham v. Baker, Cro. Eliz. 16. Wilson v. Armourer, T. Raym. 207. Loftes v. Barker,

(a) Ibid. 19, 20.

Palm. 376.) And by the devise of a messuage, a garden and the curtilage will pass, without saying cum pertinentiis. (Carden v. Tuck, Cro. Eliz. 89). For this purpose the word messuage seems formerly to have been thought more efficacious than the word house. (Thomas v. Lane, 2 Cha. Ca. 27. S. P. Keilway, 57). But the subtilty of such a distinction has been since disapproved. (Doe v. Collins, 2 T. R. 502). And when a man departs with a messuage cum pertinentiis, even by feoffment, or other common law conveyance, not only the buildings, but the curtilage and garden (if any there be) will pass. (Bettisworth's case, 2 Rep. 32. Hill v. Grange, 1 Plowd. 170. a; S. Č. Dyer, 130. b). A fortiori, in a will, although lands will not pass under the word appurtenan ces, taken in its strict technical sense; they will pass if it appear that a larger sense was intended to be given to it. (Buck v. Nurton, 1 Bos. & Pull. 57, Ongley v. Chambers, 1 Bingh. 498. Press v. Parker, 2 Bingh. 462).

(8) "When land is built upon, the space occupied by the building changes its name into that of a messuage. If the building afterwards falls to decay, yet it shall not have the name of land, although there be nothing in substance left but the land, but it shall be called a toft, which is a name superior to land and inferior to messuage." (Hill v. Grange, 1 Plowd. 170).

(9) Croft, is a small inclosure near to the homestead.

profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament (1): for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over [*21] from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession.

:

Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents (2).

I. Advowson is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus : and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common (from whence, as was formerly mentioned (b), arose the division of parishes), the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron (c).

This instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight, nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man

by any visible bodily transfer, nor can corporeal possession be [*22] *had of it. If the patron takes corporeal possession of the church,

the church-yard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant (3), either oral or written, which is a kind of invisible mental trans

(b) Book I. pag. 112.

(c) This original of the jus patronatus, by building and endowing the church, appears also to have

(1) Of course, our author meant to speak of an annuity granted to a man and his heirs; not of an annuity for life, which in no sense of the word can be called an hereditament. The word is, no doubt, often inserted in grants for life or years, but then it is only with reference to some subject which is matter of inheritance. (Smith v. Tindal, 11 Mod. 90).

(2) There being no religious establishments in the U. S. there are no advowsons or tithes; and as all offices are trusts for the public, and are not private property, they are not heredita

been allowed in the Roman empire. Nov. 26, t. 12, c. 2. Nov. 118, c. 23.

ments. So strictly we have no dignities, franchises, or corodies, in the sense above used, unless to be a corporation be a franchise, as it probably is. See 4 Wheel. 518.

(3) This is erroneous, for "advowsons, merely as such (i.) e. in gross), could never pass by oral grant without deed." Lord Coke says expressly, that "grant is properly of things incorporeal, which cannot pass without deed,” (1 Inst. 9.) and though before the statute of frauds, 29 Car. II. c. 3. any freehold interest in corporeal hereditaments might have passed

fer and being so vested it lies dormant and unnoticed, till occasion calls it forth when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches (d), the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant (e): and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words (f). But where the property of the advowson has been once separated from the property of the manor by legal conveyance, (4) it is called an advowson in gross, or at large, and never can be appendant any more; but it is for the future annexed to the person of its owner, and not to his manor or lands (g).

Advowsons are also either presentative, collative, or donative (h): an advowson presentative is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual advowson (5). An advowson collative is where the bishop and pa

(d) Co. Litt. 199.

(e) Ibid. 121.

(f) Ibid. 307.

by a verbal feoffment, accompanied with livery of seisin, (Litt. S. 69.) and by such a verbal grant of a manor, before the statute, an advowson appendant to it might have been conveyed; yet since that statute, the transfer must be in writing, and by deed. 2 Wood. 64. 1 Saund. 228.

(4) For instance, if the manor to which an advowson is appendant, be conveyed away in fee simple, excepting the advowson, or, vice versa, if the advowson be conveyed away without the manor to which it was appendant, the advowson becomes in gross. (Fulmerston v. Stuard, Dyer, 103, b). If, upon partition between two coparceners, a manor be allotted to one, and an advowson appendant thereto to another, the advowson becomes, for a time at least, severed from the manor; but if by the death of one coparcener without issue, the two estates become re-united by law, the advowson which was once severed, is now appendant again. (Sir Moyle Finch's case, 6 Rep. 64, b. Hartop v. Dalby, Hetley, 14). The dictum in the next, therefore, which intimates that an advowson which once becomes in gross, oan never again be appendant, must be qualified. (See Gibson's Codex, 757). And our author could not mean, that a temporary severance, by a lease for life or years of a mawith the exception of an appendant advowson, will have the effect of totally destroying its appendant qualities: the contrary doctrine has been established. (Hartox v. Cock, Hutt. 89. Jenk. Cent. 310, pl. 91.) And where several parties have a right to nominate and present to a church in turns, the advowson may be appendant for one turn, and in gross for another. (Illisfield case, Dyer, 259. a, pl. 19).

nor,

(5) The right of presentation is the right to offer a clerk to the bishop, to be instituted to a church. Co. Litt. 120. a. 3 Cruise, 3. All persons seised in fee, in tail, or for life, or possessed for a term of years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church when vacant. Although this is a right, considered of great value, as a provision for relations, a pledge of friendship, or what is its true use and object, the reward of learning and virtue; yet the possession of it never can yield any lucrative benefit to the owner, as the law has provided that the exercise of this right must be perfectly gratuitous. The advowson itself is valuable and saleable, but not the presentation when the living is void. 1 Leon. 205. Therefore the mortgagor shall present when the church is vacant, though the advowson alone is mortgaged in fee, for the mortgagee could derive no advantage from the presentation in reduction of his debt, 3 Atk. 599. Mirehouse, Adv. 150, 1; so, though the assignees of a bankrupt may sell the advowson, yet, if the church be void at the time of the sale, the bankrupt himself must present the clerk, Mirehouse, 156; and if an advowson is sold when the church is void, the grantee cannot have the benefit of the next presentation; and it has been doubted, whether the whole grant is not void, Cro. Eliz. 811. 3 Burr. 1510. Bla. Rep. 492. 1054. Amb. 268; though, probably, there would be no objection to the grant of an advowson, though the church is vacant if the next presentation be expressly reserved by the grantor, especially as it has been decided that a conveyance of an advowson, though

tron are one and the same person in which case the bishop cannot present to himself; but he does, by the one act of collation, or [*23] con*ferring the benefice, the whole that is done in common cases, by both presentation and institution. An advowson donative is when the king, or any subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction (i). This is said to have been anciently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of archbishop Becket in the reign of Henry II. (k) And therefore though pope Alexander III. (1) in a letter to Becket, severely inveighs against a prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of christianity in this island; and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris (m), which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that, where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him: but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

(i) Co. Litt. 344.

(k) Seld. tith. c. 12, ◊ 2.

it may be void for the next presentation, yet may be good for the remaining interest, when it can be fairly separated from the objection able part. 5 Taunt. 727. 1 Marsh. 292. An advowson in fee in gross, is assets in the hands of the heir, 3 Bro. P. C. 556; but it is not extendible under an elegit, because a moiety cannot be set out, nor can it be valued at any certain rent towards payment of the debt. Gilb. Exec. 39. 2 Saund. 63. f.

He who has an advowson or right of patronage in fee, may, by deed, transfer every species of interest out of it, viz. in fee, in tail, for life, for years, or may grant one or more presentations. The right of presentation descends by course of inheritance, from heir to heir, as lands and tenements, unless the church become vacant in the lifetime of the person seised of the advowson in fee, when the void turn being then a chattel goes to the executor, unless it be a donative benefice, and in that case the right of donation descends to the heir, 2 Wils. 150; if, however, the patron presents and dies before his clerk is admitted, and his executor presents another, both these presentments are good, and the bishop may receive which of the clerks he pleases, Co. Litt. 388. a. Burn. E. L. tit. Advowson, Mirehouse on Advowsons, 139, where see in ge

(1) Decretal. l. 3, t. 7, t. 3.
(m) A. D. 1239.

neral the right of presentation. See further as to presentation by joint-tenants and tenants in common. 2 Saund. 116. b. Where the same person is patron and incumbent, and dies, his heir is to present, 3 Lev. 47. 3 Buls. 47; but such patron and incumbent may devise the presentation. 1 Lev. 205. 2 Roll. Rep. 214. 6 Cruise, Dig. 21. Mirehouse, 70. But as we have seen an advowson in gross will not pass by the word "lands" in a will, though it will be comprehended under the terms "tenements and hereditaments," ante 16, n. 2.

The remedy for the infraction of the right of presentation is an action of quare impedit, in which, although we have seen that no profit can be taken for presenting the clerk, yet the patron, whose right of patronage is injuriously disturbed, recovers two years' value of the church, if the turn of presentation is lost. 3 Cruise, 17, 18. The particulars of the action of quare impedit will be considered, post 3 book, 242 to 253. When the bishop refuses without good cause, or unduly delays to admit and institute a clerk, he may have his remedy against the bishop in the ecclesiastical court. 3 Cruise, 17. As to any remedy for the clerk at law, see 13 East, 419. 15 East, 117.