ÆäÀÌÁö À̹ÌÁö
PDF
ePub

There are, moreover, proprietary rights in land involving the right to use the land in a particular manner, to take or receive particular profits therefrom, or to restrict its use in a particular regard, the ownership of the land, with the rights of use and profit in other respects, remaining all the time in another person. Rights of this class we consider hereafter under the title, "Rights as to the use or profits of another's land," comprising Part IV. of this work.

One may also have certain rights as against another's land, not for the purpose of use or profit, but to secure the performance of some obligation imposed by contract or by law; the person entitled thereto being authorized to appropriate or sell the land in case of nonperformance of the obligation. Such a right is termed a "lien."

Liens on land are personal, and not real, property, being in the nature of choses in action rather than rights in the land, and being furthermore regarded as merely accessory to the personal claims secured by them, and partaking of their character. Liens are not, therefore, meaning, without running counter in some instances to popular usage. At all events, a tenant farmer talks of 'my farm,' and has the exclusive right of possession." See, as to the earliest use of the term "ownership," 2 Pollock & Maitland, Hist. Eng. Law, 151, note.

10 See 2 Bl. Comm. 161, and Butler's note to Co. Litt. 208b, as to the chattel character of the estates by statute merchant, statute staple, and elegit.

Liens on land, in which we here include, for the purpose of classification, the ordinary mortgage, answer to the Roman hypotheca, which was regarded as a right in re aliena. See Langdell, Classification of Rights and Wrongs, 13 Harv. Law Rev. 539; also Holland's Jurisprudence, 202, 204; Sandar's Justinian, pp. 205, 206, quoted 3 Pomeroy, Eq. Jur. § 1233, note. It is, however, the doctrine of the English and American courts of equity, where liens on land are generally alone enforceable, that a lien is not, in strictness, either a jus in re or a jus ad rem; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing, but is more properly a charge upon the thing,

when looked at in one way, properly within the scope of a treatise on real property. Looked at, however, from the side of the results which arise from their existence, liens so frequently burden rights of ownership in land and so constantly are the means of transferring such rights, that a complete treatment of the subject of real property seems to require a consideration of liens sufficiently full, at least, for a statement of their general nature and mode of creation. They are consequently hereafter considered in Part VI., under the title, "Liens on another's land."

4. Lands, tenements, and hereditaments.

Things of a real character were formerly referred to by the phrase "lands, tenements, and hereditaments," which. is still occasionally used. The meaning of these words, particularly the last two, calls for a brief consideration.

Land includes whatever is parcel of the terrestrial globe, or is permanently affixed to such parcel.11 This statement of the meaning of the term is sufficient for our present purpose, which is concerned chiefly with definitions, and the complex questions frequently arising as to whether specific classes of things are, under particular circumstances, owing to their connection with or annexation to the soil, to be regarded as a part of the land, are reserved for consideration in connection with a discussion of the rights incident to the ownership of land.12

"Tenement" is defined as including anything which may be the subject of common-law tenure,13 or, as Blackstone

to enforce payment of which an action may be maintained. Pome. roy, Eq. Jur. §§ 165, 1233, 1234; Ex parte Foster, 2 Story, 131, 142, Fed. Cas. No. 4,960; Peck v. Jenness, 7 How. (U. S.) 612, 620; Brace v. Duchess of Marlborough, 2 P. Wms. 491.

11 Co. Litt. 4a, 6a; Challis, Real Prop. 36.

12 See post, chapter VIII.

13 Challis, Real Prop. 37.

says, it "signifies everything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstantial, ideal, kind." 14 This word, the meaning of which will more clearly appear after a consideration of the system of feudal tenure, to which the next chapter is devoted, is of a more extensive signification than land, which it includes, in addition to most of what we will later refer to as "incorporeal things." In fact, it seems at all times to have been regarded as a convenient term by which to designate these incorporeal things. provided they had what was regarded as a connection with the land; it being thus improperly applied to some things which were not in fact the subjects of common-law tenure."

"Hereditament" includes whatever, upon the death of the owner, passes, in the absence of disposition by will. by act of the law, to the heir, and not to the executor. The term is more extensive in its signification than the word "tenement," which it generally, though not always, includes, and it may, at least in England, include things of a personal character.17

16

5. Incorporeal things real.

Things which are the subject of proprietary rights are

142 Bl. Comm. 17.

15 See 2 Pollock & Maitland, Hist. Eng. Law, 148; Challis, Real Prop. 37; Co. Litt. 18a; Gray, Perpetuities, § 43, note.

The word has perhaps acquired its chief importance because used in the statute De Donis, to describe those things subject to the operation of the statute. See post, § 26.

16 Co. Litt. 6a; BL. Comm. 17; Challis, Real Prop. 39.

17 Co. Litt. 6a; Challis, Real Prop. 39; Stafford v. Buckley, 2 Ves. Sr. 170; Mitchell v. Warner, 5 Conn. 518.

The term seems to be susceptible of considerable uncertainty in its application as between things and estates in things. See Challis, Real Prop. 38; and compare Moor v. Denn, 2 Bos. & P. 247 251 and Doe v. Allen, 8 Term R. 497, with Metropolitan Ry. Ca Fowler 1892] 1 Q. B. 165, 171, [1893] App. Cas. 416.

sometimes divided according to whether they are physical objects of a visible and tangible nature, these being known as "corporeal" things, or are mere intellectual or artificial things, consisting in fact of rights or groups of rights only, which inhere in and are supported by corporeal things, but which, being themselves of an invisible and intangible character, are known as "incorporeal" things. 18

The only corporeal things of a "real" character are lands, and whatever may be considered as a part thereof.1o Of incorporeal things real, Blackstone enumerates, under the name of "incorporeal hereditaments," ten varieties, to wit, advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, annuities, and rents.2

20

"Advowsons," which are rights of appointment to a church or ecclesiastical benefice; "tithes," which are the rights of the rector of a parish to one-tenth of the yearly increase of the inhabitants, arising either from lands, from

1 Holland's Jurisprudence, 88, 120, 186; Challis, Real Prop. 36; Bl. Comm. 17, 19.

The division of real things or "hereditaments" into "corporeal" and "incorporeal" is the subject of vehement objection by Austin (Jurisprudence [3d Ed.] 371, 804) and by Digby (Hist. Real Prop. 304, note), on the ground that the lawyer is concerned only with rights, and that these should be classified alone, while this division confuses rights and things which are the objects of rights, and treats them as if they were in pari materia.

19 2 Bl. Comm. 17; 3 Kent, Comm. 401; Challis, Real Prop. 41. 20 2 Bl. Comm. c. 3. The distinctive words "corporeal" and "incorporeal" have generally, by the modern English writers, as by Blackstone, been used in connection with the word "hereditaments," which are spoken of as being "corporeal" or "incorporeal." As the characteristic of heritability is, however, here in question only incidentally, and that of "incorporeality" is in no way connected therewith, we will generally speak of "incorporeal things," rather than "incorporeal hereditaments." Blackstone's predecessor, Lord Hale, speaks of "things" corporeal and incorporeal (see Hale's Analysis, 46-50, quoted in Kirchwey's Readings in Real Property Law, 23).

stock on the lands, or from their personal industry; and "dignities," which are titles, such as that of an English peer, do not exist in this country. "Corodies," which were rights to receive sustenance at a monastery, are apparently obsolete. "Offices" are in this country never granted for longer than the life of the grantor, and cannot be considered hereditaments in any sense, and of course, being of this temporary character, cannot be classed with real things, and it is questionable whether they can be considered as property at all.21

"Commons," "ways," and "rents," with which are to be included some other incorporeal things not specifically named by Blackstone, belong to the category of what we have before referred to under the name of "Rights as to the use and profits of another's land."

Franchises.

A franchise is in England defined as "a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject";22 and in this country as "a special privilege conferred by the government upon an individual or corporation, which does not belong to citizens of the country generally by common right." 23

Franchises, then, are neither land, nor, except perhaps in exceptional cases, rights as to the use or profits of another's land, since rights of this character cannot be created by governmental act, as franchises are created. They are, however, said by Blackstone to be incorporeal hereditaments of a "real" nature, and such seems to be the law in

113 Kent, Comm. 454; Mechem, Public Officers, § 464. 22 2 Bl. Comm. 37.

"Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 595.

24

24 That is, the government cannot grant to a person rights as to the use or profits of another's land.

« ÀÌÀü°è¼Ó »