solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by 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) (4) For water is a movable, 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 immovable; 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 cælum, 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; 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 fossils, his woods, his waters, and his houses, as well as his fields and 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 [*19] capital distinction is this, that by the name of a castle, messuage, toft, croft, (6)

(4) The grant of a stream of water eo nomine, will not pass the land over which the water runs; Jackson v. Halstead, 5 Cow. 216; Egremont v. Williams, 11 A. and E. (N. S.) 701; the grant of a parcel of land, on the other hand, passes the property in a stream of water which runs over it, as much as it does the property in the stones upon the surface. Buckingham v. Smith, 10 Ohio, 288; Brown v. Kennedy, 5 H. and J. 195; Canal Commissioners v. People, 5 Wend. 423; Elliot v. Fitchburg R. R. Co., 10 Cush. 193. One who owns land on both sides of a stream owns the whole bed. If he is bounded upon it, he owns to the thread of the stream. Hatch v. Dwight, 17 Mass. 289; Mead v. Haynes, 3 Rand. 33; Morrison v Keen, 3 Greenl. 474; Middleton v. Pritchard, 3 Scam. 510; Jones v. Soulard, 24 How. 41; Fletcher v. Phelps, 28 Vt. 257; Stolp v. Hoyt, 44 Ill. 219; Berry v. Snyder, 3 Bush. 266. Prima facie, every proprietor on each bank of a river is entitled to the land covered with water to the middle thread of the stream, or, as is commonly expressed, usque ad filum aquæ. In virtue of this ownership he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction. But strictly speaking he has no property in the water itself, but a simple use of it while it passes along. The consequence of this principle is, that no proprietor has a right to use the stream to the prejudice of another. This is a necessary result of the perfect equality of right among all the proprietors of that which is common to all. Story, J. in Tyler v. Wilkinson, 4 Mason, 400; Beissell v. Sholl, 4 Dall. 211; Ingraham v. Hutchinson, 2 Conn. 584; Hendricks v. Johnson, 6 Port. 472; Omelvany v. Jaggers, 2 Hill (S. C.), 634; Elliott v. Fitchburg R. R. Co., 10 Cush. 193; Tillotson v. Smith, 32 N. H. 94.

Where parties are owners of adjoining premises bounded upon a river, and the division line between them does not strike the river at right angles, it is extended to the centre thread of the stream, not in the same direction, but in a line at right angles to the general direction of the river at that point. See Wonson v. Wonson, 14 Allen, 71; Clark v. Campau, 19 Mich. and cases cited.

(5) [Or the right to use the water as in the case of rivers and mill streams.]

(6) [By the name of a castle, one or more manors may be conveyed, and ceonverso, by the name of manor a castle may pass. I Inst. 5; 2 id. 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 enclosed piece of land near to a

messuage,

By a grant of a house or messuage a garden and curtilage will 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

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) (7)

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) (1) 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 profits produced, and the thing, or hereditament, which produces them. An annuity, 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, 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. Šo tithes, if we consider the *produce of them, as the tenth sheaf or tenth [*21] 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.

Blackbone v. Edgley, 1 P. Wms. 600; Bodenham v. Pritchard, 1 B. and Cr. 350; Smith v. Martin, 2. Saund. 401, see n. 2; Doe d. Norton v. Webster, 12 A. and E. 442. In Doe v. Collins, 2 T. R. 498, a coal pen on the side of a public road opposite to that of a house, was held to pass as part of the house. See also as to what are or are not appurtenances, Loudon v. Coll. St. Mary, Hob. 303; Higham v. Baker, Cro. Eliz. 15; Shep. Touch. 89, 94, Prest. ed.; Cowlam v. Slack, 15 East, 109; Morris v. Edgington, 3 Taunt. 24; Buck d. Whalley v. Clark, 1 B. and P. 53, 55; Barlow v. Rhodes, 1 Cr. and M. 439; James v. Plant, 6 Nev. and M. 282. 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 1 J. and H. 400; 28 Beav. 104; 27 id. 242; 30 id. 556; 2 J. and H. 248; 11 W. R. 1088; 33 Beav. 644; 12 W. R. 969; 1 New R. 517; Law R. 1 Ch. 275.]

(7) [See judgment in Hill v. Grange, Plowd. 170; Den d. Bulkley v. Welford, 8 D. and Ry. 549 R. v. Great Northern R. Co., 14 Q. B. 25, where a ferry passed under a conveyance of land "with all profits and commodities belonging to the same."]

(1) [Not necessarily, as in the case of an annuity granted by one person to another and his heirs, and not charged on any property. Co. Litt. 20, 144, b; 2 Ves. Sr. 179. It is true that where the annuity was not granted by the crown or other corporation: 2 Ves. Sr. 170; after the death of the grantor the annuity would cease, so far as he left no property or assets for the payment of it; and so indirectly it would be charged on property. Offices and dignities are also examples of incorporeal hereditaments which do not issue out of any thing corporate; but though so called, they seem scarcely to partake of the nature of property. See 1 J. B. Moore, 353.]

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 *had of it. If the patron takes corporeal possession of the church, the church-yard, the glebe, or the like, [22] 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, (2) either oral or written, which is a kind of invisible mental transfer: 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, 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. An advowson collative is where the bishop and patron 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 *conferring the benefice, the whole that is done in common [*23] cases, by both presentation and institution. An advowson donative is

(b) Book I, page 112. (c) This original of the jus patronatus, by building and endowing the church, appears also to have been allowed in the Roman empire. Nov. 26, t. 12, c. 2. Nov. 118, c. 23. (d) Co. Litt. 119.

(e) Ibid. 121.

(f) Ibid. 307.

(g) Ibid. 120.

(h) Ibid.

(2) [Mr. Wooddeson has taken notice of this inaccuracy, and has observed that "advowsons merely as such [i. e. in gross] could never, in any age of the English law, pass by oral grant without deed." 2 Woodd. 64. Lord Coke says expressly that "grant is properly of things incorporeal, which cannot pass without deed." 1 Inst. 9. But before the Statute of Frauds, 29 Car. II, c. 3, any freehold interest in incorporeal hereditaments might have passed by a verbal feoffment accompanied with livery of seisin. Litt. § 59. And by such a verbal grant of a manor, Mr. Wooddeson justly observes, before the statute, an advowson appendant to it might have been conveyed. But he who has an advowson or a 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.]

when the king, or any subject by his license, 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, (7) in a letter to Becket, severely inveighs against a prava consuetudo as he calls it, of investiture conferred by the patron only, this however shows 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 feudal 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.

However this may be, if, as the law now stands, the true patron once waives this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the *advowson is now become forever presentative, and [*24] shall never be donative any more. (n) For these exceptions to general rules, and common right, are ever looked upon by the law in an unfavorable view, and construed as strictly as possible. If therefore the patron, in whom such peculiar right resides, does once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up forever; and will therefore reduce it to the standard of other ecclesiastical livings. (3)

II. A second species of incorporeal hereditaments is that of tithes; (4) which are defined to be the tenth part of the increase, yearly arising and renewing from the profits of lands, the stock upon lands, and the personal industry of the inhabitants: (5) the first species being usually called predial, as of corn,

(i) Co. Litt. 344. (m) A. D. 1239.

(k) Seld. tith. c. 12, § 2.
(n) Co. Litt. 344. Cro. Jac. 63.

(1) Decretal, l. 3, t. 7, c. 3.

(3) [The contrary is held by a later authority than the authorities referred to by the learned judge; in which it was declared, that although a presentation may destroy an impropriation, yet it cannot destroy a donative, because the creation thereof is by letters patent. 2 Salk. 541; 3 id. 140; Mirehouse, 26. It may be here observed, that when an incumbent is made a bishop, the right of presentation in that case is in the king, and is called a prerogative presentation; the law concerning which was doubted in Car. II's time, but in the time of King William it was finally determined in favor of the crown. 2 Bla. R. 770.]

The whole subject of advowsons is foreign to the American law. Congress is forbidden by the first amendment to the constitution of the United States to make any law respecting an establishment of religion, and the people of the states have been careful, by their state constitutions to prohibit any such establishment under state laws. Religious societies are voluntary organizations in America, and their pastors or teachers are chosen by the members, or in such other mode as the articles of association shall prescribe.

(4) Tithes no longer exist as a distinct species of incorporeal hereditaments; they have become members of the family of rents.

(5) [The definition proposed in the text is not strictly accurate. The faulty part of the definition seems to be the supposition that tithe consists, in all cases, of the tenth part of the increase yearly arising and renewing. This is not correct, even as to predial tithes, universally; and to mixed and personal tithes it does not at all apply.

Wood is one of the instances to show that predial tithe may be payable in respect of an article of which the renewal is not annual. Silva cædua is titheable when it is felled; and between the falls several years commonly (and a great many years not unfrequently) intervene. Page v. Wilson, 2 Jac. and Walk. 523; Walton v. Tryon, I Dick. 245; Chichester v. Sheldon, 1 Turn. and Russ. 249.]

grass, hops, and wood: (0) the second mixed, as of wool, milk, pigs, &c., (p) consisting of natural products, but nutured and preserved in part by the care of man; and of these the tenth must be paid in gross; the third personal, as of manual occupations, trades, fisheries, and the like; and of these only the tenth part of the clear gains and profits is due. (q) (6)

It is not to be expected from the nature of these general commentaries, that I should particularly specify what things are titheable, and what not; the time when, or the manner and proportion in which, tithes are usually due. For this I must refer to such authors as have treated the matter in detail: and shall only observe, that, in general, tithes are to be paid for every thing that yields an annual increase, as corn, hay, fruit, cattle, poultry, and the like; but not for any thing that is of the substance of the earth, or is not of annual increase, as stone, lime, chalk, and the like; nor for creatures that are of a wild nature, or feræ naturæ, as deer, hawks, &c., whose increase, so as to profit the owner, is not annual, but casual. (r) It will rather be our business to consider, 1 The original of the right of tithes. 2. In whom that right at present subsists. 3. Who may be discharged, either totally or in part, from paying them.

[*25] 1. As to their original, I will not put the title of the clergy to tithes upon any divine right; though such a right certainly commenced, and I believe as certainly ceased, with the Jewish theocracy. Yet an honourable and competent maintenance for the ministers of the gospel is, undoubtedly, jure divino; whatever the particular mode of that maintenance may be. For, besides the positive precepts of the New Testament, natural reason will tell us, that an order of men, who are separated from the world, and excluded from other lucrative professions, for the sake of the rest of mankind, have a right to be furnished with the necessaries, conveniences, and moderate enjoyments of life, at their expense, for whose benefit they forego the usual means of providing them. Accordingly all municipal laws have provided a liberal and decent maintenance for their national priests or clergy: ours in particular have established this of tithes, probably in imitation of the Jewish law; and perhaps, considering the degenerate state of the world in general, it may be more beneficial to the English clergy to found their title on the law of the land, than upon any divine right whatsoever, unacknowledged and unsupported by temporal sanctions.

We cannot precisely ascertain the time when tithes were first introduced into this country. Possibly they were contemporary with the planting of Christianity among the Saxons, by Augustin the monk, about the end of the sixth century. But the first mention of them, which I have met with in any written English law, is in a constitutional decree, made in a synod held A. D. 786, (8) wherein the payment of tithes in general is strongly enjoined. This canon, or decree, which at first bound not the laity, was effectually confirmed by two kingdoms of the heptarchy, in their parliamentary conventions of estates, respectively consisting of the kings of Mercia *and Northumberland, the bishops, dukes, [*26] senators, and people; which was a very few years later than the time that Charlemagne established the payment of them in France, (t) and made that famous division of them into four parts; one to maintain the edifice of the church, the second to support the poor, the third the bishop, and the fourth the parochial clergy. (u)

The next authentic mention of them is in the fœdus Edwardi et Guthruni; or the laws agreed upon between King Guthrun the Dane, and Alfred and his son Edward the Elder, successives kings of England, about the year 900. This was a kind of treaty between those monarchs, which may be found at large in (q)1 Roll. Abr. 656. (r) 2 Inst. 651. (u) Book 1, ch. 11. Seld. c. 6, 7. Sp. of Laws, b. 31, c. 12.

(0)1 Roll. Abr. 635. 2 Inst. 649. (8) Seld. c. 8, 2.

(t) A. D. 778.

(p) Ibid.

(6) [In addition to this triple distinction, all tithes have been otherwise divided into two classes, great or small; the former, in general, comprehending the tithes of corn, peas, and beans, hay and wood; the latter, all other predial, together with all personal and mixed, tithes. Tithes are great or small, according to the nature of the things which yield the tithe without reference to the quantity.]