THE OBJECTS OF THE COMMON AND STATUTE LAW. BOOK THE SECOND.' OF THE RIGHTS WHICH RELATE TO THINGS. Ir will be remembered that, at the beginning of the first bock, it was proposed to arrange the whole subject of the "Objects of the Common and Statute Law" (omitting the consideration of crimes and punishments), under the several heads of-I, RIGHTS WHICH CONCERN OR RELATE TO THE PERSON; II, RIGHTS WHICH CONCERN OR RELATE TO THINGS; and III, MODES OF SECURING RIGHTS AGAINST INVASION, AND OF OBTAINING REDRESS FOR Wrongs. Having now unfolded the topics belonging to the first headnamely, THE RIGHTS WHICH CONCERN OR RELATE TO THE PERSON— we come to the second great division, to wit: II. THE RIGHTS WHICH CONCERN OR RELATE TO THINGS. CHAPTER I. OF THE NATURE AND ORIGIN OF PROPERTY. The rights which relate to things constitute property, which is an institution of divine origin, that is, proceeding necessarily from the ordinances of Jehovah in respect to man's nature and wants. No history acquaints us with any period when property did not exist, and it was doubtless coeval with human society. Without it neither industry, ingenuity, nor thrift would flourish amongst men. The arts of civilization would never come into being, or would languish in premature decay. The beneficent gifts of the Creator would be unimproved and unacknowledged. Vicious indulgence, violent outrage, and every form of wickedness would follow in the train of idleness, to be followed in turn by famine and pestilence, and all "the painful family of death." The institution of property averts these evils, and turns the baleful passions of men,-their covetousness, their pride, their lust of power and distinction, and of ease, their selfishness, and even their envy,—into channels which multiply comforts to the race, prolong human life, improve the understanding, exalt the character, refine the sentiments, and convert the naked and starving savage into that wonderful creature, "so excellent in faculties," who can "Instruct the planets in what orbs to run, These conclusions, are not without the sanction of actual and ample Mammy attempts have been made to constitute communities without individual property and having all things common, but in every instance signal failure has, soon or late, attended the experiment. In the first settlement at Jamestown this doctrine of communion had a prominent place, and had more than once well nigh led to the total extinction of the colony.. Stith, one of our historians, in a few simple words thus describes the effect of the system: "And now the English began to find the mistake of forbidding and preventing private property. For whilst they all labored jointly together, and were fed out of the common store, happy was he who could slip from his labor, or slubber over his work in any manner. Neither had they any concern about the increase; presuming, however the crop prospered, that the public store must still maintain them. Even the most honest and industrious would scarcely take so much true pains in a week as they would have done for themselves in a day." To the same effect is the testimony of Bancroft. After mentioning the timely and welcome relief brought to the wretched outcasts of the colony by Sir Thomas Gates in 1611, the historian says: "But the greatest change in the condition of the colonists resulted from the incipient establishment of private property. To each man a few acres of ground were assigned for his orchard and garden, to plant at his pleasure, and for his own use. So long as industry had been without its special reward, reluctant labor, wasteful of time, had been followed by want. Henceforward the sanctity of private property was recognized as the surest guaranty of order and abundance." The experience of the Plymouth Colony was the same, and there, as in Virginia, the institution of separate property is said to have had a sudden and very beneficial effect in exciting a spirit of industry. (Stith's Virg'a, 131; 1 Baner. U. S. 144; Ke Com. 319, 328, n. a.) To these instances might be added several more recent, the offspring of fanaticism or licentiousness, under the guidance of Rapp, Owen, Fourier and others, which, originating in various motives, and conducted with different degrees of wisdom and partial success, have yet had a common fate,- -a fate which demonstrates that He who made man, ordained property as one of the grand stimulants of human effort, and a principal regulator of society. But although it be admitted that property is an ordinance of God, the question yet remains, how did it at first become vested in particular individuals. Upon this point much speculation has been expended, developing wide diversities of opinion. (2. Bl. Com. 8; 2 Kent's Com. 318 & seq; Rutherf. Insts. B. I. ch. III. § viii.) To the writer it seems the better conclusion that as be- How tween nations, property originated in occupancy, whilst as to individuals, who are citizens of the same State, the appropriation of particular portions of territory, and of certain movable chattels, was by virtue of the actual or implied sanction of the political au-3 thority of the State, for the time being. This heaven-ordained institution it is the province and the duty of government to adapt, by wise laws, to the peculiar exigencies of each separate community. Freedom to acquire it, and freedom of disposition, are fundamental principles which may be regulated and restrained, but cannot, without tyranny and mischief, be either forbidden or too much encumbered. Devised for the comfort and improvement of the race, it is not to be perverted to retard the growth of society, nor to enfeeble its energies. That a man shall be permitted to do what he will with his own, is a maxim both just and wise, but with the reservation that he shall not choose to do with it aught detrimental to the common weal. But whilst property is thus needful, in general, for the progress and welfare of human society, there are some things which, either because their use is inexhaustible, or because they may be enjoyed alike by all, without injury or privation to any, or because the possession of them, from their nature, is un-permanent and temporary, are not susceptible of absolute appropriation. Of this character are the open sea, running waters, the elements of air a and light, and to a certain extent, animals feræ naturæ. But these subjects which are more or less incapable of appropriation, must not be confounded with those which, by neglect or design, may sometimes prove to have for the time no owner, and so to be open to the occupancy of whosoever shall first take possession. It should be the purpose and effort of every well-ordered State to have none of this latter class, but to provide by law that every proper subject of ownership shall, under all circumstances, have a definite and known owner by law assigned, and if there be none else, that it shall be the property of the State. (V. C. 1873, c. 119, § 11; Id. c. 9, § 3, &c.; Id. c. 78, § 66.) Having thus traced property to its divine original, let us advert to its subjects, and their due classification. One cannot look around without observing that of the subjects of property, one class is fixed, permanent, and immovable, such as land, whilst another class is susceptible of being removed from place to place, and is endued with no fixedness or permanency, as cattle, jewels, &c. All property is accordingly divided into property REAL, which is of the fixed, permanent and immovable class, and property PERSONAL, which is of the movable kind, and may attend the person; Wherein consider (I.) REAL PROPERTY; Wherein consider CHAPTER II. OF THE NATURE AND SEVERAL KINDS OF REAL PROPERTY. 1a. The Nature, and several kinds of Real Property; Wherein consider 1. The Nature of Real Property. Things real are such as are permanent, fixed, and immovable, as lands, and rights issuing out of, or connected with lands. (2 Bl. Com. 15.) 2. The several kinds of Real Property. Things real consist in lands, tenements and hereditaments. (2 Bl. Com. 15); Wherein consider 1o. Lands. The term lands includes any ground, soil, or earth, whatsoever; as arable meadows, pastures, woods, waters, marshes. It includes also all structures or buildings thereupon; in short, everything fixed on it, and everything above and below it, ab solo usque ad cælum. (2 Bl. Com. 17 & seq.; 1 Th. Co. Lit. 197 & seq.); Wherein consider 14. Messuage. The term messuage includes the dwelling, garden, and curtilage, and probably the orchard. (2 Bl. Com. 19, n (7); 1 Th. Co. Lit. 215, & n (35).) 2d. House. The word house has the same meaning as Messuage. (2 B1. Com. 19, n (7); 1 Th. Co. Lit. 115, & n (35).) 34. Curtilage. The term curtilage means the space included within the general fence which immediately surrrounds the principal Messuage, and the out-buildings and yard closely adjoining a dwelling. (1 Chit. Gen. Pr. 175; see V. C. 1873, c. 188 & 3; Synops. Crim. L. 85.) 4d. Croft. A croft is a little close adjoining a dwelling-house, for pasture, or other particular use. Usually highly manured by art or craft. (2 Bl. Com. 19, n (9); Jac. L. Dict. Croft 5. Toft A toft is a piece of ground where a dwelling formerly Comin stood. (2 Bl. Com. 19, n (8); Jac. L. Dict. Toft.) Land, of what description soever, may be conveyed by C the name of land, but it may also pass by any of these less comprehensive names which may be appropriate. Besides these here mentioned, there is, at common law, a vast number of particular designations, which are practically not employed by us, although proper to be used if there were occasion; e. g.,boscus, hirst or hurst, holt, shawe, all meaning a wood; [home, dunum or duna, cope, lawe, all signifying a hill hope, combe, store, clough, all meaning a valley (lesures or lesues, lea or ley, meaning pastures,) đe. (1 Th. Co. Lit. 201–2.) 2o. Tenements. The term tenement is more comprehensive than land. It includes everything of a permanent nature, capable of being holden of a superior, in a feudal sense; e. g., lands, houses, advowsons, franchises, commons, rents, &c. (2 Bl Com. 16, 17; 1 Th. Co. Lit. 219.) 3o. Hereditaments. This, says Lord Coke, "is the largest word in that kind." It comprehends lands and tenements, and also whatever else is capable of being inherited,―i. e., which passes, upon the death of the owner, to the heir, and not to the personal representative. (2 Bl. Com. 17; 1 Th. Co. Lit. 219.) Wherein consider 1. Corporeal Hereditaments. Corporeal hereditaments consist wholly of substantial and permanent objects, which may be apprehended by the senses; all which may be included under the denomination of land only. For land comprehends, in its legal signification, any ground whatsoever; as arable, meadows, pastures, woods, waters, marshes. It includes, also, all structures thereupon. Hence, if one were about to convey a lake, it would not be proper to describe it as so many acres of water (for that would pass only the right of fishery, &c.), but so many acres of land, covered with water. Bl. Com. 17, 18; 1 Th. Co. Lit. 199, 200.) (1 " ིར་་་ ་་ ་ ་ |