But it has its origin in the most obvious considerations of public policy, and can in no sense be regarded as a relic of the feudal system. We do, indeed, still retain some of the legal terms to which that system gave rise. Thus we speak of the manner of holding as a tenure, of the thing holden as a tenement, and of the person holding as a tenant; but we use all these terms in a modified sense. So we recognize a relation of landlord and tenant, respecting which, some of the rules have taken their complexion from the feudal relation of lord and vassal. But this is all; and we may therefore dismiss the subject of tenure as having no other than a speculative interest for us.

I have stated that the law of realty improves more slowly than any other branch of law, owing to the nature of the subject; and that much yet remains for reform, even here. At the same time, it is a matter of congratulation that so much has been effected. I have no doubt that the law of realty in Ohio could be written in one third of the space which would be required for the law of realty in England. The truth of this will be felt as we proceed; though it cannot now be demonstrated without anticipation. I will, however, here indicate some of the leading points in which the most marked improvement has been made. 1. We have much fewer incorporeal hereditaments than the English. 2. We have none of the distinctions growing out of their manorial establishments. 3. We have none of the particular customs which prevail there. 4. The statutes of uses, of mortmain, and of entails, are not in force here. 5. All our tenancies, which are not in severalty, are in common. We have no joint tenancies or tenancies in coparcenary, distinct therefrom. 6. Our conveyances are greatly simplified. 7. We have but one real action, and that is ejectment, which answers for all purposes. (a) In these, and other similar respects, which will be enlarged upon hereafter, we have reason to boast of our improvement in the law of realty; and because we have innovated so much and so well, I shall treat this branch of law with more fulness than has been my custom hitherto.

The law which regulates the acquisition, use, and transfer of personalty, differs so much from the corresponding provisions with respect to realty, that I at first doubted whether it would not be advisable to treat the subjects separately; but, upon reflection, I have concluded to treat the two in connection. The distinguishing character of personalty is, its movable nature; and upon this is founded a great variety of distinctions relative to the mode of acquiring it, the evidence of ownership, the injuries which may be done to it, and the mode of disposing of it. In general, it may be remarked, that in all these respects the law of personalty is much less formal and technical, and in most of them much more simple and reasonable, than the law of realty. All this will be illustrated as we proceed. But in the mean time, I would call

(a) This form of action is superseded by the Code. For actions concerning real property, see Code, § 557-63.

your attention to the wide compass embraced by the law of personalty. Whatever relates to the money or currency of the country; to contracts in general, and more particularly to the various commercial contracts, such as bills of exchange, promissory notes, bailments, sales, insurance, and other marine contracts; to corporations; to partnerships; and generally to the relation of debtor and creditor; all this comes more or less directly within the comprehensive scope of the law of personalty. You will not, therefore, expect from me any thing more than an abstract or synopsis of these various matters, with a reference to the sources whence more particular information may be had. The subjects of commercial law alone, occupy many volumes; while I can devote to them only a few pages; but I shall take some notice of all these subjects; enough at least to indicate how much is to be learned, and what are the landmarks to direct your progress.

LECTURE XX.

INCORPOREAL HEREDITAMENTS, EASEMENTS, AND FIXTURES. (a)

§ 125. In what they Consist. We have seen that realty includes not only those tangible things, which, in legal contemplation, constitute lands, but also certain intangible rights annexed to land, and included among tenements or hereditaments. For this reason, it has been customary to make two divisions of the subject. Hereditament, being formerly the most comprehensive term, has been selected for this purpose, and the division is into corporeal hereditaments and incorporeal hereditaments: the first, including land only; and the second, every thing real which is not land. I shall first consider incorporeal hereditaments, under the name of easements; and then close the lecture with a brief account of fixtures. Incorporeal hereditaments comprise certain rights and privileges connected with land, but belonging to different persons from the proprietors of the land. They are not things of substance, cognizable by the senses, but exist merely in idea. In England, they make a very important portion of real property. No less than eleven different kinds are enumerated by Blackstone; namely, advowsons, tithes, offices, dignities, franchises, corodies, pensions, annuities, commons, ways, and rents. But this list is very much reduced in this country. For in regard to the first two, namely,

(a) See 2 Black. Com. Ch. 3; 3 Kent, Com. lec. 52; Woolrych on Ways; Gilbert on Rents; Gale and Whateley on Easements; Angell on Watercourses; Angell on Tide Waters; Woolrych on Window Lights; Amos on Fixtures; Brown on Fixtures; Angell on Highways; Washburn on Easements.

advowsons and tithes, it is sufficient to say that they grow exclusively out of the English church establishment, which happily has no existence in this country; and we are thus relieved from a great variety of perplexing questions. In regard to the next six namely, offices, dignities, franchises, corodies, pensions, and annuities, they have, in the first place, no necessary connection with realty; and in this country, they are not, and cannot be hereditary. On the contrary, they are strictly personal in their character; and with the exception perhaps of annuities, in some cases, are neither transferable nor descendible. Not only some express provisions of the federal and State constitutions, but the whole spirit and tendency of our institutions, are opposed to the English doctrines and practice in regard to these hereditaments, if such they can be called in this country. For these reasons, I shall not stop to describe them. Again, as to the English right of common, which is the right that one man has to feed his cattle, dig turf, cut wood, or take fish, on the lands of another; it originated under the manorial establishments of England, where the lord of the manor was in the habit of setting apart certain portions, to be used in common by tenants or copyholders. It there forms quite a diffusive and intricate branch of law. It has also prevailed in some of the older States of this Union. But in the sense of the English law, this right of common is not known here, and will not therefore be discussed. Again, rent is defined to be, "a certain profit issuing yearly out of lands and tenements corporeal." According to this definition, rent may properly be classed with incorporeal hereditaments. But we commonly understand by rent, nothing more than a periodical compensation, in money or other property, for the use of land; and, in this sense, it can in no respect be considered as an incorporeal hereditament. I shall accordingly reserve the consideration of rent to its proper place, in connection with estates for years.

$126. Public Easements. (a) But there are certain other rights

(a) On the general subject of dedications to public uses, see Lade v. Shepherd, 2 Strange, 1004; McConnell v. Lexington, 12 Wheaton, 582; Cincinnati v. White, 6 Peters, 431; Gowen v. Philadelphia Exchange Co. 5 W. & S. 141; U. S. v. Chicago, 7 How. 185; Rowan v. Portland, 8 B. Monroe, 232; Glover v. Powell, 3 Am. Law Reg. 367; 2 Stockton, Ch. 211. A dedication of ground for public uses may be made in Ohio under the statute or according to the common law, the latter requiring and the former dispensing with the assent or acceptance of the public. Lessee of Incor porated Village of Fulton v. Mehrenfield, 8 Ohio State, 440.

Public Common. Where land was dedicated for the use of public buildings for the county, and it was proposed to lease part of it for private purposes, chancery would not interfere by injunction. Smith v. Hueston, 6 Ohio, 101. Where the proprietors by their agent recorded a plat, designating one lot as a "public square," and lots were sold described as adjoining it, the proprietors were enjoined from converting it to any uses inconsistent with the dedication. Brown v. Manning, 6 Ohio, 298. Where land in Cincinnati was designated on the plat as for "public uses," it was proper to use it for a court-house and jail, but not to lease it for private purposes. Here the city sued the county, and failed because the statute vested the fee in the county. Cincinnati v. Hamilton County, 7 Ohio, pt. 1, 88. Where land had been designated and used as a public square, the legislature could not authorize it to be sold and the proceeds applied to other purposes. Le Clerc . Gallipolis, 7 Ohio, pt. 1, 217. And see Lebanon v. Warren County, 9 Ohio, 80. Land dedicated for a public square may

of considerable importance connected with land, which I shall now discuss under the head of easements; a convenient term, sanctioned by the best usage, and sufficiently broad to include all incorporeal hereditaments known in this State. By easements, are meant rights or privileges relating to the land of other persons. They are divided into two classes, public and private. Public easements comprehend all such as are open and free to the enjoyment of every citizen. They apply chiefly to commons, roads, and rivers.

Public Commons. By our statute, whenever the proprietor of land wishes to lay out a town, or an addition thereto, he is required to have a plat thereof surveyed, acknowledged, and recorded, specifying the streets, alleys, and commons. And the effect of

complying with these requisitions, is to vest in the town, for the use of the public, the fee-simple of all such portions as are designated to be for public use. Here, then, while the land on which the streets, alleys, and commons are laid out, belongs to the town, the easement belongs to the public at large. But apart from this

be improved and ornamented for recreation and health, or used for public buildings and the transaction of public business. Langley v. Gallipolis, 2 Ohio State, 107.

Public Ronds, Streets. An order opening a county road forty feet wide, when the law requires sixty, will be set aside. Burrows r. Vandevier, 3 Ohio, 383. Chancery cannot decree compensation for property taken for a street, nor correct irregularities in the proceedings. Armstrong v. Cincinnati, 5 Ohio, 223. Nor to prevent the destruction of a road on the application of a supervisor. Putnam v. Valentine, 5 Ohio, 187. Where damage has been done by grading a street and the owner has neglected to prefer his claim pursuant to law, he cannot afterwards recover of the corporation. Hickox v. Cleveland, 8 Ohio, 543. The liability of a lessee for rent continues after appropriation for a street, and he is therefore entitled to compensation. Foote v. Cincinnati, 11 Ohio, 408. Before the new constitution, “benefits" might be considered, in assessing damages. Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, id. 541; Kramer v. Cleveland & Pittsburg R. R. Co., 5 Ohio State, 140; Columbus, Piqua, & Indiana R. R. Co. v. Simpson, id. 251. The damages must now be assessed by a jury of 12 men. Lamb v. Lane, 4 Ohio State, 167. And they must be assessed without deduction for benefits. County commissioners may lay out a road through an incorporated town or city, unless expressly prohibited by the charter. Wells v. McLaughlin, 17 Ohio, 99. And see on the general subject, Cincinnati v. Coombs, 1e Ohio, 181; Culbertson v. Cincinnati, id. 574; Bingham v. Doane, 9 id. 165; Fox v. Hart, 11 id. 414; McMicken v. Cincinnati, 4 Ohio State, 394; Ferris v. Bramble, 5 id. 109; Shaver v. Starret, 4 id. 494. As to the power to authorize assessments for such purposes, see Reeves v. Treasurer of Wood County, 8 Ohio State, 333; Butler v. City of Toledo, 5 id. 225; Hill v. Higdon, id. 243; Ernst v. Kunkle, id. 520; Strader v. Cincinnati, 1 Handy, 446, 464. A State road and a county road may coexist together. Bisher v. Richards, 9 Ohio State, 495.

Public Rivers. On the general subject see Angell on Watercourses, and on Tide Waters; 3 Kent Com. 497, 516; 3 Western Law Journal, 310, 337; 4 id. 145, 190. With regard to the Ohio River, it has been held that the cession of Virginia reserved the bed of the river to low-water mark on the Ohio side. Handly . Anthony, 5 Wheaton, 374; Booth v. Shepherd, 8 Ohio State, 243. And see State v. Hoppess, 2 Western Law Journal, 279. But with respect to jurisdiction, see 11th section of the Virginia Compact of 1789, 1 Revised Statutes of Kentucky, 45, which makes the jurisdiction of Virginia and Kentucky "concurrent with the States which may possess the opposite shores of the said river." With regard to the provision in the ordinance of 1787, see Hutchinson v. Thompson, 9 Ohio, 52; La Plaisance v. Monroe, 1 Walker's Ch. Rep. (Mich.) 155; Gavit v. Chambers, 3 Ohio, 496; Hogg v. Zanesville, 5 id. 410. As to navigable waters generally, see Walker v. Board of Public Works, 16 Ohio, 540; Hopkins v. Kent, 9 id. 13; Blanchard v. Porter, 11 id. 138; Carson v. Blazer, 2 Binney, 475; Shrunk v. Schuylkill, 14 Serg. & R. 71; Smith v. State of Maryland, 18 How. 71.

statutory provision, it is not necessary that the fee in the land should pass, in order to secure the easement to the public; or that the dedication should be made in any particular form; all that is required is the assent of the owner of the land, and the fact of its being used for the public purposes intended by this appropriation. Thus where an individual lays out a public street over his land, or where the proprietor of a town reserves a spring or common for the public use, the easement vests at once in the public, without regard to length of possession; and the owner cannot revoke the dedication.

Public Roads. (a) By these, I mean roads laid out by the public authorities. The mode of proceeding to lay out State, county, and township roads, is detailed at length in the statutes, with the particular provisions of which I shall not tax your memory. The government has authority under the constitution, as we have seen, to appropriate the land of individuals for these purposes, on making them a compensation. But the public acquire thereby only an easement in the land so appropriated. The fee-simple, subject to the easement, still remains in the former proprietor. (b) And where land is granted bounded upon a road, the grant extends to the middle of the road, unless the contrary be expressed. (c) The diference, then, between streets laid out by individuals, and roads laid out by government, is, that in the former the fee is in the town, and in the latter the fee is in individuals; while in both the easement belongs to the public. In either case, if the road becomes impassable, the public have a right to pass over the adjoining land without becoming trespassers, provided they do no unnecessary injury. Public Rivers. The general doctrine of the common law is, that the owners of land bounded by the sea, or by navigable rivers, where the tide ebbs and flows, own only to ordinary highwater mark while the shore below belongs to the public. But on navigable rivers, above tide water, the adjacent owners own to the middle of the stream, subject to the public easement of navigation. Of this latter class are all the navigable rivers within this State; there being no tide within its limits. By the fourth article of compact in the ordinance of 1787, "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them," were declared to be "public highways, and forever free to all citizens ;" and by the ninth section of the act of Congress of 1796, "all navigable rivers within the North-western Territory,"

(a) The right of passing on a highway is subject to such incidental, temporary, and partial obstructions as manifest necessity requires, such as those occasioned by delivering freight at stores or houses, repairing the street, constructing sewers, or building or repairing houses on adjoining lots. Clark v. Fry, 8 Ohio State, 358.

(b) The owner still retains the trees, shrubs, &c., growing in the road, for all purposes not incompatible with the easement. Where a growing hedge stood within the limits of a public highway, leaving ample room for public travel, which was not thereby incommoded or annoyed, and it was cut down by a person not acting under official authority, he will be liable therefor to the owner of the adjoining land. Phifer v. Cox 21 Ohio St. 248.

(c) Phillips v. Bowers, 7 Gray, 21.