This section is from the book "American Commercial Law Series ", by Alfred W. Bays. Also available from Amazon: American commercial law series.
Blackstone 4 stated that things real are usually said to consist in lands, tenements or hereditaments. There is little if any practical distinction between "tenements" and "hereditaments," but they are both words of greater significance than "lands." All three terms may be included in the term "real estate," but their separate consideration may serve to illuminate the meaning of that term.
"Land comprehends all things of a permanent substantial nature, being a word of very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptation, it is only applied to houses and other buildings, yet in its original, proper and legal sense, it signifies everything that may be holden provided it be of a permanent nature; whether it be of a substantial and sensible, or of an unsubstantial, ideal kind. * * * But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression for it includes not only lands and tenements, but whatsoever may be inherited, be :- corporeal or incorporeal, real, personal or mixed." 5
4. Blackstone's Commentaries, Cooley's Ed. Book II, star page 16.
Land is a term meaning the ground, and all that is permanently added thereto by nature or the hand of man, and the earth under the soil and the space above.
"Land" is a term synonymous with "corporeal hereditament" and signifies that sort of real estate which is substantial and permanent, as distinguished from that which is of an intangible nature. By the word land we mean the ground, and that which grows thereon or has been attached thereto, for permanent purposes. It includes not only the surface, but all below to the center of the earth, and all above "ad coelum." Hence, ownership of lands signifies ownership of all minerals under the earth, with right to use the same; and signifies the right to prevent projections above his land by the property of others.6
If the tree of one adjoining owner extends its branches over the other land, the owner of such land, so overhung may cut off such branches, but in so far only as they overhang. He is not entitled, however, to the fruit of the overhanging branches.
Land is capable of division horizontally into superimposed legal ownerships, so that one person may own the surface; another person, the minerals beneath the surface.7
Water is also included in the term land "which may seem a kind of 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 the water only; either by calculating its capacity, as, for so many cubical yards; or, by superficial measures, 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. 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." 8
6. Murphy v. Bolger, 60 Vt. 723, 15 Atl. 365, 1 L. R. A. 309 (suit in ejectment will lie to oust defendant whose property overhangs plaintiff's property).
7. Neuhoff v. Mayo, 48 N. J. Eq. 619, 23 Atl. 265.
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.9
We usually think of real estate as being something very tangible, indeed, and usually any intangible rights are considered in the nature of personal property, but there are some so closely connected with the use of real estate, that they partake of its nature, and are classed as real estate.
An incorporeal hereditament is real estate of an intangible nature. It is distinguished from a corporeal hereditament mentioned in the last section in that it is not the land itself, but some right in the land and exercisable in connection therewith. But these rights although incorporeal are real estate. Blackstone's use of the phrase "whether real, personal or mixed," is unfortunate in conveying a contrary impression, which he does not mean to give, for his illustrations of "personal property" which constitute hereditaments are those of articles that are by custom or usage to be treated as real property, descending to the heir. The different sorts of incorporeal hereditaments are described below, very briefly. They are,
8. Blackstone, Book II, p. 18.
9. Id., page 19.
mostly, obsolete, and many of them never obtained at all in this country.
(1) Advowson.10 An advowson was an old form of property of an intangible sort signifying a right of presentation to a church, that is to say, it was the right which a person had because he had built a church or made some gift, to name the minister to officiate therein. This form of property is unknown in America.
(2) Tithes. A tithe was a right to a tenth part of the increase yearly rising from land and animals.11 Those things were tithable which were of annual increase. This was a species of property belonging to a church or the clergy and existed as a matter of right in various cases. Any person may now give a tenth part of his income to a church but this probably would not be called a tithe, because the church has no legal right to demand it; but tithes in the old days were legally demandable. These like advowsons are unknown to our law although they were known to the English law from early times.
(3) Commons. A common was a right which a man had to make substantial profit from the land of another. This sort of right is also known by the name of "profit a prendre." Commons are of four sorts, and are discussed later.12
(4) Ways or Easements. A way or an easement is the right of one to go upon the land of another.13 It differs from a common or profit in that it does not give the right to take anything from the land but merely to make a certain use of it. It differs from the right of a tenant, because he occupies the land, while the owner of an easement has no exclusive possession, but merely a right to go and come upon the land which is in the possession of another.
10. Id., page 21.
11. Id., page 24.
12. See SEC. 136, post.
13. See Sections 130-135, post.
Easements are of two sorts, "appurtenant" or "in gross" but as they are hereafter discussed at length we may not dwell upon them here.
(5) Offices.14 An office was a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging.
(6) Dignities.15 Dignities consisted in the right to honors and offices, as those of dukes, marquesses, earls, viscounts, and barons. They are unknown to our American law.
(7) Franchises16 A franchise is a right which one has to do things which by the general law he would have no right to do: Thus we may have the right of certain persons to carry on business as a corporation. This they cannot do except by the franchise of the state. There were many sorts of franchises in the old law which are now obsolete, and which consisted in rights claimed by grant of the king, to have certain privileges, as the right to wrecks, estrays, etc. Under our American law franchises are not presumed to be given to favored individuals but merely to those who comply with the law. The possession of a franchise signifies the possession of a right which could not be exercised without the franchise, thus, with the right to be a corporation, or to operate street railways. The franchises that we know would not be classed as real, but personal property.
(8) Corodies or Pensions17 A corodie or pension is a right to receive certain allotments for one's maintenance.
14. Blackstone, Book II, 36.
15. Id., 37.
17. Id., 40.
(9) Annuities.18 An annuity is the right to have a certain amount every year from some layman. By contract, as with an insurance company, one may now have an annuity, but we do not have annuities as they were originally known in England.
(10) Rents. A rent is defined as a certain profit issuing yearly out of land and tenements corporeal. It may consist in money or goods or services. There were various sorts of rent at common law which we need not take the time to discuss here. The modern law of landlord and tenant is discussed fully hereafter.'