*The word land nevertheless includes not only the surface of the [*17] earth, but everything under it or over it; and if a man being the owner of land in this general manner grants his land, all the minerals, the woods,

who conveys "so much of my land lying, etc., as will conveniently carry the water to a sawmill, so as to be to his profit and advantage," conveys only a privilege or easement, with a right of ingress and egress for repairs, etc. Merriman v. Russell, 2 Jones' Eq. (N. C.) 470. A grantor who owns land on which there is a mill, with a dam and race, and who grants a part of the land on which the mill stands, but not the dam and race," together, also, with the mill-dam and race on the several courses as they now run, and have heretofore been in use for the mills through the upper plantation * and all the land now drowned and occupied by said dam and race, or that has been drowned by the same, with the full and uninterrupted right and use of all the water falling into the said dam and race, and to be conveyed along the same, will pass the title to the land. Hannum v. Chester, 70 Penn. St. 367; Swartz v. Swartz, id. 353. A grant of a specified parcel of land carries the title to a stream or other body of water on its surface.

*

A deed of all the land which a specified dam will cover with water, conveys all the land which would be covered with water if such dam were in use, although at the date of the deed the dam was not in use, and the water flowed within the banks of the natural stream through the waste way, as freely as though no dam had been there. Morse v. Marshall,

11 Allen (Mass.), 229.

A deed of lands "lying and being on the west side" of a specified river, which is not navigable, conveys the title to an island in the river, which lies to the west of the main channel. Stanford v. Mangin, 30 Ga. 355. A deed of lands adjoining a stream or body of water carries with it adjoining flats and islands as well as the mainland. Hill v. Lord, 48 Me. 83. So a deed of "all the right of way in and upon the land owned by a certain party, "in, to and for a ditch called the Mountain Brow Water Company," will carry the ditch. Reed v. Spicer, 27 Cal. 57.

Generally an easement appurtenent to land will pass by a conveyance of the land, although not specified in the deed. Karmuller v. Krotz, 18 Iowa, 352; Sheets v. Selden's Lessee, 2 Wall. (U. S.) 177; Esty v. Baker, 50 Me. 325; Ammidown v. Ball, 8 Allen (Mass.), 293; Neaderhouser v. State, 28 Ind. 257.

A deed or grant of land carries with it all trees standing or growing upon the land, and all trees or timber lying thereon. Cockrill v. Downey, 4 Kan. 426; Brackett v. Goddard, 54 Me. 309; Green v. Armstrong, 1 Denio, 550. But see Brock v. Smith, 14 Ark. 431; Strong v. Eddy, 40 Vt. 547; Plumer v. Prescott, 43 N. H. 277.

Standing trees are a part of the land. Goodyear v. Vosburgh, 57 Barb. 243; 37 How. 377; White v. Foster, 102 Mass. 375.

Growing grass passes by a grant of the land. Wescott v. Delano, 20 Wis. 514.

So of growing crops. Austin v. Sawyer, 9 Cow. 39; Tripp v. Hasceig, 20 Mich. 254; Chapman v. Long, 10 Ind. 465. See Lauchner v. Rex, 20 Penn. St. 464; Gibbons v. Dillingham, 10 Ark. (5 Eng.) 19; Wilkins v. Vashbinder, 7 Watts, 378; see, also, Wintermute v. Light, 46 Barb. 278, 283.

So where lands are mortgaged, a foreclosure and sale of the land carries the growing crops. Shepard v. Philbrick, 2 Denio, 174; Sherman v. Willett, 42 N. Y. (3 Hand) 146.

Where a tree stands entirely upon the lands of an individual, he is the owner of all its fruit, notwithstanding some of its branches hang over the lands of another person. Hoffman v. Armstrong, 48 N. Y. (3 Sick.) 201; Dubois v. Beaver, 25 N. Y. (11 Smith) 123.

As to a conveyance of mines or minerals, see Hartwell v. Camman, 2 Stockt. (N. J.) 128. Mines and minerals may be granted separately from the land. Ib. A grant of the mines in land gives a right to dig for them, and to work the mines. Shep. Touch. 96.

Ordinarily, and in the absence of words expressing a different intention, a deed or grant of lands bounded by a street extends to or is bounded by the center of such street. Mankato v. Willard, 13 Minn. 13; Boston v. Richardson, 13 Allen (Mass.), 146; Sherman v. McKeon, 38 N. Y. (11 Tiff.) 266; Hinchman v. Paterson Horse R. R. Co., 2 C. E. Green (N. J.), 75; Bank v. Ogden, 2 Wall. (U. S.) 57; Marsh v. Burt, 34 Vt. 289; Dunham v. Williams, 36 Barb. 316; 37 N. Y. (10 Tiff.) 251; 4 Trans. App. 209.

But the highway may be excluded by the terms used in the conveyance. A deed of lands

the waters, the horses, will pass under the grant quite as certainly as the fields and meadows.

If things are described by particular names in a grant, it will be effectual to pass them, except indeed in the case of water, by a grant of which, as we have already seen, nothing valuable passes but a right of fishing. But the distinction between any such particular names as castle, messuage, toft, croft (i), and land, is that a grant *of the former conveys nothing but what falls [* 18] within their specific meanings, but the latter being nomen generalissimum, denotes everything terrestrial (k).

The word tenement is a word of larger signification than land, inasmuch as it is not confined to corporeal things. The proper meaning will more fully appear when we come to the discussion of tenures, or the circumstances and conditions in and under which real property is held or possessed. A tenement is anything that may be holden in the technical sense of that word (7). Not only lands, but a right of common, a rent, an office, an advowson (m), a peerage, and other property of a similarly unsubstantial kind, are tenements.

"

(i) 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. 1 Inst. 5; 2 Inst. 31. When land is built upon, it is a messuage, and if the building afterwards fall 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; and this name it shall have in respect of the dignity which it once bore." (Plowd. 170.) A croft is an inclosed piece of land near to a messuage.

By a grant of a house or messuage, the orchard, garden, and curtilage pass (Co. Litt. 56), and see Partridge v. Strange, Plowd. 85, 86, where it is said that eleven acres might pass by the grant of a messuage as being parcel of it. Nicholas v. Chamberlain, Cro. Jac. 121; Hill v. Grange, Plowd. 170; but the land must consist only of the close on which the house is built, see Blackborn v. Edgley, 1 P. W. 600; Bodenham v. Pritchard, 1 B. & Cr. 350; Smith v. Martin, 2 Saund. 401; see note 2; Doe d. Norton v. Webster, 12 A. & E. 442. In Doe v. Collins, 2 T. R. 498, a coal pen on the side of a public road, opposite to that of the house, was held to pass as part of the house. See, also, as to what are or what are not appurtenances, London v. Coll. St. Mary, Hob. 303 (advowson not an appurtenance or profit of a prebend); Higham v. Baker, Cro. Eliz. 15, 16; Shep. Touch. 89, 94, Prest. Ed.; Corlam v. Slack, 15 East, 109 (common under an implied grant); Morris v. Edgington, 3 Taunt. 24 (ways and easements under a lease);

Buck d. Whalley v. Clark, 1 B. & P. 53, 55 (lands as appurtenant to a messuage under a devise); Barlow v. Rhodes, 1 Cr. & M. 439 (ways under a grant); James v. Plant, 6 Nev. & M. 282 (an apparent easement does not pass under a grant as an appurtenance). Much discussion has recently taken place upon the meaning of the word "house" in cases arising under sec. 92 of The Lands Clauses Consolidation Act, 1845. See Governors of St. Thomas's Hospital v. Charing Cross Railway Co., 1 J. & H. 400; King v. Wycombe Railway Co., 28 Beav. 1C4; Cole v. West London, &c., Railway Co., 27 Beav. 242; Alexander v. Crys tal Palace Railway Co., 30 Beav. 556; Gardner v. The Charing Cross Railway Co., 2 J. & H. 248; Fergusson v. London, Brighton and South Coast Railway Co., 11 W. R. 1088; Pulling v. London, Chatham and Dover Railway Co., 33 Beav. 644, on app. 12 W. R. 969; Chambers v. same, 1 New R. 517; Steele v. The Midland Railway Co., L. R. 1 Ch. 275.

(k) Co. Litt. 4, 5, 6. See judgment in Hill v. Grange, Plowden, 170; Denn d. Bulkeley v. Wilford, 8 Dowl. & Ry. 549; R. v. Great Northern Railway Co., 14 Q. B. 25, where a ferry passed under a conveyance of land, "with all profits and commodities belonging to the same.

"

(1) The common colloquial meaning of the word as denoting houses or other buildings, is but an example of the ordinary case of using a general word to denote a particular meaning.

(m) Westfaling v. Westfaling, 3 Atk. 459; Savil v. Savil, Fortescue, 351. These cases show, also, that under the word lands an ad

on the south-west side of " a specified highway, excludes the highway, where there are no other words to show the intent. Hoboken, etc., Land Co. v. Kerrigan, 2 Vroom (N. J.), 13; see, also, Brainard v. Boston, etc., R. R. Co., 12 Gray (Mass.), 407; Hughes v. Providence & Worcester R. R. Co., 2 R. I. 508.

A boundary by a river or stream not navigable, generally extends to the center of the river or stream. Gove v. White, 20 Wis. 425; Phinney v. Watts, 9 Gray (Mass.), 269; Seneca Nation of Indians v. Knight, 23 N. Y. (9 Smith) 498; Middleton v. Pritchard, 3 Scam. 510 · Morrison v. Keen, 3 N. H. 474.

VOL. I.-55

An hereditament is, says Sir Edward Coke (n), by much the largest and most comprehensive expression; for *it includes not only lands and tene[*19] ments, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, or piece of furniture, which by custom descends to the heir together with a house, is neither land, nor tenement, 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 an hereditament (0).

Hereditaments then, to use the largest expression, 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. Their nature sufficiently appears from what has been already said. Incorporeal hereditaments are not the objects of sensation, they are creatures of the mind existing only in contemplation: and although they commonly (p) lead to the personal enjoyment by their owner of sensible results, these are not the hereditaments themselves, but their profits.

[*20]

Incorporeal

*CHAPTER III.

INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament may be described as a right to the enjoyment of certain profits or advantages, which right is transmissible to heirs according to the law regulating the transmission of land. Except in a few hereditaments cases (a) an incorporeal hereditament issues out of or is annexed defined. to a corporeal hereditament, and the profits of it are objects of our bodily senses, but itself is an abstract idea. A rent issues out of land, and the product is money, but the right which produces that money is a thing invisible. It is necessary, in order to form a clear notion of incorporeal hereditament, to distinguish the profits produced, the incorporeal hereditament, which gives a right to enjoy them and the corporeal hereditament (if any)

vowson will not pass. Under a devise of "lands and tenements" in F., and all other lands and tenements not thereinafter devised upon trust for charities, it was held that an advowson did not pass. Kensey v. Langham, Ca. T. Talb. 143; see as to this case, A. G. v. Ward, 7 L. J. Ch. 114.

(n) 1 Inst. 6; see Chorlton-on-Medlock v. Walker, 10 M. & W. 742, where a question arose relating to the vaults under a church. (0) Winchester's case, 3 Rep. 1, 5, 6, Shep. Touch. 92 Prest. Ed. By a condition is here meant a qualification or restriction annexed to a conveyance of lands, whereby it is provided that in case a particular event does or does not happen, or a particular act is done or omitted to be done, an estate shall commence, be enlarged or defeated. As an instance of the condition here intended, suppose A. to have enfeoffed B. of an acre of ground, upon condition that, if he or his heir should pay the feoffee 20s., he or his heir

should re-enter; this condition would be an hereditament descending on A.'s heir after A.'s death; and if such heir after A.'s death should pay the 208. he would be entitled to re-enter, and would hold the land as if it had descended to him. (Co. Litt. 201, 2146.) Instances similar to this are of daily occur. rence in the case of mortgages, but the modern form of mortgages provides for a re-conveyance upon payment of the money on a day stated.

(p) Not invariably, e. g. a peerage is an example of an incorporeal hereditament, which in itself is unaccompanied by any profit.

(a) As to these exceptions, see Earl Staf ford v. Buckley, 2 Ves. Sen. 170, which concerned an annuity granted by Chas. 2 out of Barbadoes duties; Holdernesse v. Marquis Carmarthen, 1 Bro. C. C. 377; Smith v. Pybus, 9 Ves. 566 (annuity out of mixed assets).

from which they issue. An annuity charged on land, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, as is the land, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, which still more closely relate to the land, being (before the commutation acts,) payable in kind, as the tenth sheaf or tenth lamb, were still an incorporeal hereditament, for they, being merely a *contingent springing right, collateral to the land, can never be the object of sense. The share of the [*21] annual increase is not, till severed, capable of being shown to the eye, or of being delivered into bodily possession.

There are nine principal classes of incorporeal hereditaments-I. Commons; II. Easements; III. Rents; IV. Advowsons; Corodies; VI. Annuities; VII. Franchises; VIII. Offices; IX. Dignities (b).

I. Common, or the right of common, is a right which one person may possess over the land of another; it is an incorporeal hereditament entitling its owner I. Commons. to enjoy certain substantial parts of the land or the produce of the land, such as to dig and carry away turf, to hunt, hawk (c), catch fish, or cut wood. It is, in mediæval law French, described as a profit à prendre, and must be distinguished from an easement which also gives certain rights over the land, but does not entitle its owner to take absolutely any substantial part of the land, though it may entitle him to take and enjoy those natural accessories of land which are of a universal kind, such as light, or air, or a flow of water, and do not grow or spring out of the particular piece of land itself. Thus the right to have the light and air over the land unobstructed by buildings on it, or the right to the lateral support of land or buildings, are easements: as also the right to draw water out of a well for domestic purposes (d), or to wash and water cattle at a pond (e). An easement may involve a duty to be discharged on the *part of the landowner, such as to maintain his land at a level sufficient to secure his neighbour's wall from falling, or to keep a fence [*22] or road in repair(f). This, however, can never be the case with a common or profit à prendre, which only entitles the owner to take the particular produce if it be there, but creates no obligation on the part of the landowner to provide it, by keeping up the stock of fish or planting wood. The distinction between the two classes of right is, as we shall see, important on account of the law providing different rules of evidence for the establishment of the claims (g).

"

(b) It will be seen that a species of incorporeal hereditaments formerly classified separately, is here omitted from the list of classes. Tithes no longer exist in a distinct species; they have become members of the class of rents.

(c) See the discussion in Moore v. Earl Plymouth, 1 Moore, 346, as to the nature of hawking and hunting," and in Wickham v. Hawker, 7 M. & W. 63.

(d) See Tyler v. Bennett, 5 A. & E. 377, and Race v. Ward, 4 E. & B. 702, where the right was claimed by all inhabitants of a township, which could not be done of a profit a prendre. (e) Manning v. Wasdale, 5 A. & E. 758; S. C. 1 N. & P. 172.

(f) Such a duty on the part of the owner of the servient land is contrary to the original idea of an easement. Servitutum non ea est natura ut aliquid faciat quis, sed ut aliquid patiatur vel non faciat. Dig. viii. 1, 15, 1, and see Bract. lib. 4, 222; but the owner of the land may be bound by express stipulation or prescription (which implies a contract by deed) to perform the duty in question; see Taylor v. Whitehead, 2 Doug. 749; Rider v. Smith, 3 T. R. 766.

(g) See Blewitt v. Tregonning, 3 A. & E. 544, where a right to take sand blown on a field from the sea shore was considered to be a profit à prendre, and therefore could not be claimed by custom.

Of common there are four different principal sorts: common of pasture, of piscary, of turbary, and of estovers. (202)

Common of pasture is, as its name imports, the right of pasturing cattle upon the land of another. (203)

Common of turbary is the right of digging turves for fuel: this right necessarily extends only to those parts of a waste piece of ground where there is dry peat or heather, and not to grass turf (h); consequently in this case a commoner could not interfere with the lord enclosing at pleasure any waste land suitable for a meadow.

Common of piscary is a liberty of fishing in the lord's river or ponds. (204)

(h) Pearson v. Underhill, 16 Q. B. 120.

(202) The cases in relation to rights of common are not numerous in this country, and the subject is not one frequently occurring. A reference to some of the cases will enable the reader to see what points have been decided. See Livingston v. Ten Broeck, 16 Johns. 14; Leyman v Abeel, id. 30; Van Rensselaer v. Radcliff, 10 Wend. 639; Trustees of Western University v. Robinson, 12 Serg. & Rawle, 29; Knowles v. Nichols, 2 Curtis' C. C. 571; Worcester v. Green, 2 Pick. 429; Hall v. Lawrence, 2 R. I. 218; Bell v. Ohio and Pennsylvania R. R. Co., 25 Penn. St. 161; Hebert v. Lavalle, 27 Ill. 448; Funkhouser v. Langkopf, 26 Mo. 455; Livingston v. Ketcham, 1 Barb. 592; Smith v. Floyd, 18 id. 522. As to permitting lands to "lie open to a public common," see Perkins v. Perkins,

44 Barb. 134.

(203) A custom that all the inhabitants of a particular town, for the time being, have the right to the depasture of uninclosed woodlands of individual proprietors within the town, is not a mere easement like a right of way, or a right to flow water. It is a right to take a profit, and for such a right the commoner must prescribe in respect to some estate, and not in respect to mere inhabitancy. The custom is therefore void. Smith v. Floyd, 18 Barb. 522. There can be no inter-commonage, or common because of vicinage, unless there are contiguous townships, the inhabitants of which, seeking to excuse a trespass for that cause, have common rights of pasturage appendant, appurtenant or in gross, in the towns where they reside. Ib. The proof required to establish a customary right cannot be less than that required to establish a prescriptive right. The entry or use must have been adverse or hostile to the true owner in its commencement. It must have been used and enjoyed under a claim of right, and have continued uninterrupted for a length of time sufficient to bar an entry. Ib. The fact that cattle are suffered without objection to run at large over the uninclosed lands of a new country, affords no ground from which to imply a grant; because such use is not adverse, and is not accompanied by any claim, and because such a user is oftentimes unknown to the true owner, and takes nothing away which he would naturally appropriate to his own benefit. Ib. He is deprived of nothing which is to him of any real value; he is not interrupted in the enjoyment of his property, and there is no reason why he should assert his title. He does not, therefore, acquiesce in the claim and dominion of another, or in the appropriation of his property to the use of another. Ib. See Donnell v. Clark, 19 Me. 174, 183; Thomas v. Marshfield, 13 Pick. 240.

Common of estovers cannot be divided or apportioned; and if severed by the act of the party the right is extinguished; and this will be done by a partition of the land by the voluntary acts of the tenants. Livingston v. Ketcham, 1 Barb. 592; Van Rensselaer v. Radcliff, 10 Wend. 639; Hall v. Lawrence, 2 R. I. 218, 236. The taking of sea-weed from a beach may be a commonable right. Knowles v. Nichols, 2 Curtis' C. C. 571.

(204) The right to take fish in the waters upon the soil of a private proprietor, for one's own use, is not an easement, but a profit in lands. It can only be acquired by grant or prescription, from which a grant may be presumed. Nor will prescription, or custom, or dedication, raise a general right in the public to enter upon the lands of a private owner, at their own pleasure, to catch fish in the waters thereon. Cobb v. Davenport, 33 N. J. L. (4 Vroom) 223; 3 id. 369; McFarlin v. Essex Co., 10 Cush. (Mass.) 304; Chalker v. Dickinson,