We now come to the consideration of incorporeal hereditaments, usually so called, which, unlike a reversion, a remainder, or an executory interest, are ever of an incorporeal nature, and never assume a corporeal shape. Of these purely incorporeal hereditaments there are three kinds, namely, first, such as are appendant to corporeal hereditaments; secondly, such as are appurtenant; both of which kinds of incorporeal hereditaments are transferred simply by the conveyance, by whatever means, of the corporeal hereditaments to which they may belong; and, thirdly, such as are in gross, or exist as separate and independent subjects of property, and which are accordingly said to he in grant, and have always required a deed for their transfer (a). But almost all purely incorporeal hereditaments may exist in both the above modes, being at one time appendant or appurtenant to corporeal property, and at another time separate and distinct from it.
1. Of incorporeal hereditaments which are appendant to such as are corporeal, the first we shall consider is a seignory or lordship. In a previous part of our work (b) we have noticed the origin of manors. Of such of the lands belonging to a manor as the lord granted out in simple to his free tenants, nothing remained to him but his seignory or lordship. By the grant of an estate in fee simple, he necessarily parted with the feudal possession. Thenceforth his interest, accordingly, became incorporeal in its nature. But he had no reversion; for no reversion can remain, as we have already seen (c), after an estate in fee simple. The grantee, however, became his tenant, did to him fealty, and paid to him his rent-service, if any were agreed for. This simply having a free tenant in fee simple was called a seignory. To this seignory the rent and fealty were incident, and the seignory itself was attached or appendant to the manor of the lord, who had made the grant; whilst the land granted out was said to be holden of the manor. Very many grants were thus made, until the passing of the statute of Quia emptores (of) put an end to these creations of tenancies in fee simple, by directing that on every such conveyance the feoffee should hold of the same chief lord as his feoffor held before (e). But such tenancies in fee simple as were then already subsisting were left untouched, and they still remain in all cases in which freehold lands are holden of any manor. The incidents of such a tenancy, so far as respects the tenant, have been explained in the chapter on the tenure of an estate in fee simple. The correlative rights belonging to the lord form the incidents of his seignory. The seignory, with all its incidents, is an appendage to the manor of the lord, and a conveyance of the manor simply without mentioning its appendant seignories, will accordingly comprise the seignories, together with all rents incident to them (f). In ancient times it was necessary that the tenants should attorn to the feoffee of the manor, before the rents and services could effectually pass to him (g). For, in this respect, the owner of a seignory was in the same position as the owner of a reversion (h). But the same statute (i) which abolished attornment in the one case abolished it also in the other. No attornment, therefore, is now required.
Three kinds of purely incorporeal hereditaments.
(a) Ante, p. 229.
(b) Ante p. 115.
(c) Ante, p. 242.
(d) 18 Edw. I. c. 1. (e) Ante, pp. 61, 114.
(f) Perk, s. 116. (g) Co. Litt. 310 b.
Other kinds of appendant incorporeal hereditaments are rights of common, such as common of turbary, or a right of cutting turf in another person's land; common of piscary, or a right of fishing in another's water; and common of pasture, which is the most usual, being a right of depasturing cattle on the land of another. The rights of common now usually met with are of two kinds; one where the tenants of a manor possess rights of common over the wastes of the manor, which belong to the lord of the manor, subject to such rights (k); and the other, where the several owners of strips of land, composing together a common field, have at certain seasons a right to put in cattle to range over the whole. The inclosure of commons, so frequent of late years, has rendered much less usual than formerly the right of common possessed by tenants of manors over the lord's wastes. These inclosures were formerly effected by private acts of parliament, obtained for the purpose of each particular inclosure, subject to the provisions of the general inclosure act (l), which contained general regulations applicable to all. But by an act of parliament of the present reign (m) commissioncrs have been appointed, styled the Inclosurc Commissioners for England and Wales, under whose sanction inclosnres may now be more readily effected, several local inclosures being comprised in one act. The same commissioners have also been invested with powers for facilitating the drainage of lands(n). And by a recent act provision has been made for the improvement, protection and management of commons near the metropolis, by means of schemes for the purpose, to be certified by the Inclosure Commissioners and confirmed by act of parliament (o). The rights of common possessed by owners of land in common fields, however useful in ancient times, are now found greatly to interfere with the modern practice of husbandry; and acts have accordingly been recently passed to facilitate the exchange (p) and separate inclosure (q) of lands in such common fields. Under the provisions of these acts, each owner may now obtain a separate parcel of land, discharged from all rights of common belonging to any other person. The rights of common above spoken of, being appendant to the lands in respect of which they are exercised, belong to the lands of common right (r), by force of the common law alone, and not by virtue of any grant, express or implied. And any conveyance of the lands to which such rights belong will comprise such rights of common also (s). Another kind of appendant incorporeal hereditament is an advowson appendant to a manor. But on this head we shall reserve our observations till we speak of the now more frequent subject of conveyance, an advowson in gross, or an advowson unappended to any thing corporeal.