Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Second : Of Real Propety and, First, of Corporeal Hereditaments
Chapter the second.
Of REAL PROPERTY; and, first, of
The objects of dominion or property are things, as contradiftinguifhed from perfons: and things are by the law of England diftributed into two kinds; things real, and things perfonal. Things real are fuch as are permanent, fixed, and immoveable, which cannot be carried out of their place; as lands and tenements :things perfonal are goods, money, and all other moveables; which may attend the owner's perfon wherever he thinks proper to go.
In treating of things real, let us confider, firft, their feveral forts or kinds; fecondly, the tenures by which they may be holden; thirdly, the eftates which may be had in them; and, fourthly, the title to them, and the manner of acquiring and lofing it.
First, with regard to their feveral forts or kinds, things real are ufually faid to confift in lands, tenements, or hereditaments. Land comprehends all things of a permanent, fubftantial nature; being a word of a very extenfive fignification, as will prefently appear more at large. Tenement is a word of ftill greater extent; and though in it's vulgar acceptation it is only applied to
houfes and other buildings, yet in it's original, proper, and legal fenfe it fignifies every thing that may be holden, provided it be of a permanent nature; whether it be of a fubftantial and fenfible, or of an unfubftantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other folid objects, but alfo to offices, rents, commons, and the like a
: and as lands and houfes are tenements, fo is an advowfon a tenement ;and a franchife, and office a right of common, a peerage, or other property of the like unfubftantial kind, are, all of them, legally fpeaking, tenements b
. But an hereditament, fays fir Edward Coke c
, is by much the largeft and moft comprehenfive expreffion ;for it includes not only lands and tenements, but whatfoever may be inherited, be it corporeal, or implement of furniture which by cuftom defcends to the heir together with an houfe, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprised under the general word, hereditament :and fo a condition, the benefit of which may defcend to a man from his anceftor, is alfo an hereditament d
Hereditaments then, to ufe the largeft expreffion, are of two kinds, corporeal, and incorporeal. Corporeal confift of fuch as affect the fenfes; fuch as may be feen and handled by the body: incorporeal are not the object of fenfation, can neither be feen nor handled, are creatures of the mind, and exift only in contemplation.
Corporeal hereditaments confift wholly of fubftantial and permanent objects; all which may be comprehended under the general denomination of land only. For land, fays fir Edward Coke e
, comprehendeth in it's legal fignification any ground, foil, or earth whatfoever; as arable, meadows, paftures, woods, moors, waters, marifhes, furzes, and heath. It legally includeth
Co. Litt. 6.
Co. Litt. 19, 20.
1. Inft. 6.
3 Rep. 2.
1 Inft. 4.
alfo all caftles, houfes, and other buildings: for they confift, faith he, of two things; land, which is the foundation; and ftructure thereupon : fo that, if I convey the land or ground, the ftructure of building paffeth therewith. It is obfervable that water is here mentioned as a fpecies of land, which may feem a kind of folecifm; but fuch is the language of the law : and I cannot bring an action to recover poffeffion of a pool or other piece of water, by the name of water only; either by calculating it's capacity, as, for fo many cubical yards; or, by fuperficial meafure, for twenty acres of water; or by general defcription, as for a pond, a watercourfe, or a rivulet : but I muft bring my action for the land that lies at the bottom, and muft call it twenty acres of land covered with water f
. For water is a moveable, wandering thing, and muft of neceffity continue common by the law of nature; fo that I can only have a temporary, tranfient, ufufructuary 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 immoveable : and therefore in this I may have a certain, fubftantial property, of which the law will take notice, and not of the other.
Land hath alfo, in it's legal fignification, an indefinite extent, upwards as well as downwards. Cujus eft folum, ejus eft ufque ad coelum, 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 furface of any land, and the center of the earth, belongs to the owner of the furface; 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 foffils, his woods, his waters, and his houfes, as well as his fields and meadows. Not but the particular names of the things are equally fufficient to pafs them, except in the inftance
of water; by a grant of which, nothing but a right of fifhing g
: but the capital diftinction is this; that by the name of a caftle, meffuage, foft, cromt, or the like, nothing elfe will pafs, except what falls with the utmoft propriety under the term made ufe of; but by the name of land, which is nomen generaliffimum, every thing terreftrial will pafs h
g Co. Litt. 4.
h Ibid. 4, 5. 6.