This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The most distinctive feature of the law of land as established in England, and from there brought to this country, is the doctrine of estates, by which the duration of one's right of possession of the land, with the incidental rights of user, is made dependent on the character of the estate which he has in the land.1 In every piece of land there is an estate in fee simple in some person or persons, and less estates may be freely created in favor of others. The effect of the creation of a less estate is to deprive the owner of the fee simple estate of the right of immediate possession, this right appertaining to the less estate. But nevertheless the estate in fee simple is the same estate as existed before it was deprived of the right of immediate possession by reason of the creation of the less estate. And so in the case of an estate less than a fee simple, an estate for life, for instance, while the creation of an estate of still more limited duration will de1. The word "estate," or "status," originally, and even as late as the middle of the thirteenth century, was used as descriptive of the personal condition of the feudal tenant; but, under the feudal system, a man's personal status was so closely connected with his proprietary rights that even then a man was said to have the status of a tenant for life or of a tenant in fee, according to the duration of his feudal hold ing, and consequently but a slight change of expression was necessary to use the word with reference to the extent of the interest in the land. 1 Pollock & Mait-land, Hist. Eng. Law, 391; 2 Pollock & Maitland, Hist. Eng. Law, 11, 78. See, also, 2 Blackst. Comm. 103.
(35) prive it of the right of immediate possession, the life estate will remain the same estate as before. It is thus that the creation of two or more estates in a particular piece of land results in the existence of successive rights of possession in the owners of those estates, that is, the less estate gives a present right of possession, and the owner of the greater estate has a right of possession after the lesser estate is out of the way and not before. In other systems of law, it appears, in so far as the creation of successive rights of possession is recognized, they result from the creation of successive rights of ownership, so that one has no right of ownership until the preceding right of another has come to an end.2 A somewhat similar system of creating successive rights by the creation of prospects or possibilities of estates to commence in the future, operating by way of divestiture of pre-existing estates, is recognized in English law,3 but this is a comparatively late development, and originally the only method of creating successive rights of possession was, as above explained, by the creation of a less estate, either accompanied or not accompanied, by a transfer of the greater estate.4
When an estate, or several estates, less than a fee simple estate, exist in a particular piece of land, the possession of the land being in the tenant of the less estate, or of one of the less estates, he may conveniently be considered as holding the possession, not only in his own behalf, but also in behalf of such others, including the tenant in fee simple, as have estates in the land. From this point of view, one may be said to have an estate in land either when he has the actual or constructive possession, or when the actual or constructive possession is in another, who, having and claiming a less estate only, may be regarded as holding possession not only in his own behalf but also in behalf of the owner of the greater estate.
2. See Markby, Elements of Law Sec. 330; French Civil Code Sec. 1048; German Civil Code Sec. 2100 et seq.; Swiss Civil Code Sec.Sec. 488-492.
3. Post Sec.Sec. 156-176.
4. Post Sec.Sec. 129-147.
The doctrine of estates apparently owes its place in English law to the universal prevalence of the system of feudal tenures, by which the tenant was regarded as having an interest in land which was short of absolute ownership, the lord having a possibility of the land reverting to him by reason of the termination of the tenant's interest. The principle of a present right of possession in one person and a right or possibility of future possession in another, thus suggested or instituted, "was subsequently worked out by conveyancers, and sanctioned by the courts, to the full capacity of the subject for such mode of treatment, and in subservience, it must be presumed, to the exigencies of the public."5
Estates are said to exist not only in the land itself, but also in those classes of rights in another's land known as rents easements, and profits a prendre.6 This means merely that the possible duration of a rent, an easement, or a right of profit, or of one's interest therein, is either in theory perpetual, in analogy to an estate in fee simple in land, or it is created to endure for the period of one of the lesser estates in land, as for instance an easement for life or for years.