vested in the first fortunate finder that will seize it to his own use. But if he hides it privately in the earth or other secret place, and it is discovered, the finder acquires no property therein; for the owner does not then indicate any intention to abandon it, but rather the contrary: and if he loses or drops it by accident, no design to abandon it can be inferred; therefore in such a case the property still remains in the loser, who may claim it again of the finder. And this, in fact, is the doctrine of the law of England with relation to treasure trove.

Origin of conand inherit

ances.

But this method of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long continue, even if it ever did subsist in fact. It might suffice merely for veyance, wills, the rudiments of civil society, whilst there was no difficulty in finding unoccupied land, but could not be applicable to any country so far peopled that all valuable land had been taken possession of, and it necessarily entirely ceased to exist when other substantial wealth, derived from artificial culture or the production of man's labour, formed a material part of a man's desires. Because it followed that even if a man ceased to have a personal desire to retain lands, yet there would be other things which he would desire; if therefore the right of declaring who should be the next occupant were established, he in fact obtained means of securing some desired object. This very simple and obvious accessory to the original right of *undisturbed possession arising from occupancy would be soon recognized by society as a general benefit. At the same time it might easily be, and [*9] in fact in many countries even in the earliest times it was, that some restriction as to the mode of transfer should be insisted upon for the benefit of society, because a fundamental principle underlies every system of society that the possession of property draws with it some correlative duties, the discharge of which must not be rendered impossible. What these duties may be depends upon the conditions of society, and will be found to differ materially according to the state of civilization. Amongst people of a savage and warlike character, the general defence is always a prominent feature of such obligations.

Among other modes of giving up possession of property, the one which is at the same time most universal and most important in its results as affecting the relations of the owner to society at large is that by the death of the owner, and accordingly we find that this case has been provided for, to some extent, in almost every nation. If the right of an owner of property depended only upon the natural right of possession accompanying the act of occupancy, when both the actual possession and intention of keeping possession cease, the property, which is founded upon such possession and intention, ought of course also to cease. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions for one moment beyond his life, he would also have a right to direct their disposal for a million of ages after his death: which would be highly absurd and inconvenient. All property must therefore cease upon death, if men are considered as absolute individuals, unconnected with civil society, and the next immediate occupant acquires a right in all that the deceased possessed. But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, it has almost *universally been permitted to the dying person to exercise a power of

[*10]

continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion (h). And farther, in case no testament be permitted by the law, or none be made, and no heir can be found qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby either the state takes possession for the benefit of the community, or the sovereign becomes the owner, which is, or ought to be, the same thing.

Some right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than any right of devising by testament. We are apt to conceive at first view that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right. It is true, that the transmission of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most *tender affections. [*11] Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate origin did not arise from speculations so delicate and refined, and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man's children or nearest relations have usually assisted in his labours, and shared their fruits, they are about him on his death-bed, and are the earliest witnesses of his decease. They became therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law.

While property continued only for life, testaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically style his will. This was established in some countries much later than in others. With us in England, till modern times, a man could only dispose of one-third of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry VIII.; and then only for a certain portion: for it was not till after the Restoration that the power of devising real property became so universal as at present.

(h) It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon

the death of either, the inheritance does not so properly descend, as to continue in the hands of the survivor. (Dig. 28, 2, 11.)

Law of property necessarily arbitrary.

Wills therefore and testaments, rights of inheritance and successions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites for making a testament completely *valid: neither does anything vary more [*12] than the right of inheritance under different national establishments. In England particularly, this diversity has been carried to great lengths, almost as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state. In general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance of land: and again males are preferred to females; but in the division of goods and chattels and other property of the kind called personal estate, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed (i).

Some things still in common, as light,

There are some few things, which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being such that nothing but an usufructuary property is capable of being had in them; and therefore they still belong to the first air, water, &c. occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences; such also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition: which any man may seize and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them *afterwards; but even the enjoyment of these will be subject to divers regulations and restrictions in a highly artificial [*13] state of society such as exists in England, where, moreover, the density of population and the consequent pressure upon the resources of nature induce each man to take the utmost advantage of his rights. We shall hereafter dwell more upon this subject.

There are, besides, other things in which permanent property may exist, which yet, from the circumstance of their not rendering any profit to the owner, would, in the early stages of a country's history, not be appropriated to any individual owner. Such are waste grounds and forest lands, which, though at the present day far from valueless, would not have been of much esteem two thousand years ago even in England. In order to avoid the disturbances and quarrels which frequently arise among individuals contending about the acquisition of this species of property by first occupancy, the law wisely cuts up the root of dissension by vesting the things themselves in the sovereign of the state or else in his representatives appointed and authorized by him, being usually the lords of manors. The legislature of England has endeavoured to promote the grand ends of civil society, the peace and security of individuals,

(i) Much public attention is at the present time (1869) directed to this variegated law of succession, and a bill has been introduced

into Parliament to abolish primogeniture and assimilate the inheritance of land to the succession to goods and chattels.

by pursuing that wise and orderly maxim, of assigning to everything capable of ownership a legal and determinate owner. Though it must be confessed that in the course of doing so it has occasionally introduced and sanctioned many highly artificial and some very inconvenient doctrines which it has been and is the task of the present century to modify or abrogate.

[*14]

*CHAPTER II.

REAL PROPERTY, ITS CLASSIFICATION AND LEGAL

NATURE.

BY English law the objects of property are things as distinguished from persons and things are distributed into two primary classes, things real and things personal. The former class contains those things which are by their nature permanent and immoveable, such as land, and profitable rights connected with and arising out of them, and capable of being enjoyed in perpetuity. The latter class contains those things which are by their nature moveable, such as goods and money, and profitable rights connected with them, such as a right to demand them or their value from another person, or a debt. Things of this latter class being usually unconnected with any particular locality, are considered as attending their owner's person wherever he may think proper to go. They will be considered at length hereafter. At present we will confine our attention to the former class, with the anticipatory remark, that amongst the members of the second class are included, according to our law, although not perhaps by a very scientific classification, certain interests of a more or less temporary nature in immoveable things. And we may here also notice at the outset, in connection with real or immoveable things, that the theory of English law relating to them is that the things themselves are not so much the subjects of property as interests in them either of indefinite or of limited duration, conferring upon the owner of such interests rights of a more or [*15] *less absolute character. The origin of this theory will hereafter appear. In treating of things real, therefore, we will consider, in the first place, their several sorts or kinds. We can then with greater advantage investigate the modes in which they become the subjects of property: which will involve the following matters: first, the tenures by which they may be holden; secondly, the estates or interests which may be had in them; thirdly, the title to them, or the manner in which those estates or interests may be gained on lost.

First, their sev

First, with regard to their several sorts or kinds, things real eral sorts. are usually said to consist of lands, tenements, or hereditaments (a). Land, according to the legal acceptation of the word, comprehends all things of a substantial immoveable nature; it is a word of very extensive meaning (b), including all kinds of ground, arable, meadows, pastures, woods, moors, marshes, furze, and heaths: also everything fixed or united with the soil, such

(a) These terms are fully described in Co. Litt. 4a to 6b.

(b) Co. Litt, 3, 4; see the legislative interpretation of the word in Lord Romilly's Act, 13 & 14 Vict. c. 21, s. 4.

as houses and other buildings, trees, or even unsevered crops (c). It also includes pools, water-courses or other waters, which are in fact as well as in law land covered with water (d); for water in a water-course, being a moveable, wandering thing, must necessarily by its nature continue, to a considerable extent, common, and so permanent property can be enjoyed in it; if there be a flow of water from a man's pool to that of his neighbour, he has no right to reclaim it. The land under the water alone therefore is capable of being the object of rights of ownership (e), though these may draw with them other rights relative to the water. (201)

*The expression land, moreover, includes an indefinite extent upwards [*16] as well as downwards. Cujus est solum, ejus est usque ad cœlum, is the general maxim. Therefore no man may erect any building or structure of any kind to overhang another's land. Again, it is usually the case that whatever is in a direct vertical line from the surface of the earth downwards belongs to the owner of the surface. Minerals belong usually to the owner of the surface. We say usually, because the law admits of there being separate owners of the surface and of the minerals beneath, such division of the property arising sometimes by contract or other dealings between men, and sometimes even by rule of law. Thus a man, being owner of the land, may sell or otherwise dispose of the minerals, retaining the surface and giving his purchaser only a right of so far breaking the surface as may be necessary for the purpose of opening a mine. And the ownership of any portion of the space from the centre of the earth outwards may be held as a distinct property; a man may have an estate of inheritance not only in a seam of coal, but even of a story of a house or a box at a theatre (ƒ).

In some cases the law requires that there should be a division of ownership of this kind. For railway companies are not allowed to own the minerals under the ground which belongs to them, except in certain cases (g); and a parson having glebe lands is restricted in his rights to the minerals (h).

(c) As to these last, however, special rights have in certain cases been established, distinguishing them from the soil for purposes of convenience, as will be seen hereafter.

(d) Challenor v. Thomas, Brownl. 142. (e) Hence "if a man grant aquam suam, the soil shall not pass, but the piscary within the water passes therewith." Co. Litt. 4, 6. See Smith v. Barret, 1 Lev. 114.

(ƒ) R. v. Inhabitants of St. Martin's, 2 Gale & D. 426; Rowe v. Brenton, 3 M. & R. 133, where the mutual rights and duties of the separate owners in such cases are dis

cussed; and see Goold v. Great Western Deep Coal Company, 2 De G. J. & S. 600; Bainbridge On Mines, ch. 2.

(g) See Railways Clauses Consolidation Act, 1845 (8 Vict. c. 20), sects. 77 & 78.

(h) Bartlett v. Phillips, 4 De G. & J. 414. Again, mines of silver and gold cannot by common law be possessed by private individuals, but belong to the crown as an appendage of its prerogative of coining, The Case of Mines, Plowd. 337. The exercise of the royal right is now regulated by 1 W. & M. stat. 1, c. 20, s. 4, and 5 & 6 W. & M. c. 6, s. 2.

(201) Ordinarily, a grant of water, under any designation, does not convey the land which it covers. A grant of a river, eo nomine, will not pass the soil of the river, or an island within it. Jackson v. Halstead, 5 Cow. 216. So a grant of a "stream and pond of water and saw-mill thereunto belonging" will not convey the land covered by the waters of the stream and the pond. Nostrand v. Durland, 21 Barb. 478. A deed of a well by the terms "spring or well of water" includes not only the orifice which reaches down to the water, but also the whole opening in the earth, before it was stoned, and the stone laid into the well, and the water therein. Mixer v. Reed, 25 Vt. 254. The grantee also has a right of way to and from the well. Ib. The words in a deed: "Together with all and singular the well, house, mill-dam, races, flood-gates, mill-wheels, stones, hoppers, bolting chests and cloths, waters, water courses, and other the appurtenances," do not pass the title to the bed of the mill-pond. Bartholemew v. Edwards, 1 Houston (Del.), 17. So one