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 .
36. "The realm of mediaeval law is rich with incorporeal things. Any permanent right which is of a transferable nature, at all events if it has what we may call a 'territorial ambit,' is thought of as a thing which is very like a piece of land." 2 Pollock & Maitland, Hist. Eng. Law:
124. See, also, Co. Litt. 18a, as to rights which concern or "savor of" the realty.
37. See 1 Pollock & Maitland, Hist. Eng. Law, 574, 642.
38. See 2 Blackst. Comm. 37 et seq.; 3 Cruise, Dig. tit. 27 Sec.Sec. 1-31. "The principal franchises are (1) liberties to hold courts; (2) grants of Jura Regalia and Counties Palatine; (3) grants of forest courts; (4) liberty to make a park; (5) the right of free warren; (6) to have the goods of felons etc.; (7) to have waifs and strays; (8) to have a fair or market; (9) to keep a ferry." Elphinstone, Interpretation of Deeds, 581.
The most usual franchise at the present time is the right to exist as or form a corporation; a character of right which is sometimes spoken of as vested in the corporation itself, and sometimes as vested in the individuals composing the corporation.41 Such franchises have been stated to be hereditaments,42 but there seems to be some impropriety in so classifying them, since, as remarked by Chancellor Kent, "they have no inheritable quality, inasmuch as a corporation, in cases where there is no express limitation to its continuance by charter, is supposed never to die but to be clothed with a kind of legal immortality."43 Furthermore, it may be said of franchises of this character, as of others, that, when granted only for a limited number of years, as is the custom in this country at the present day, they can39. Dundy v. Chambers, 23 111. 369; Gunterman v. People, 138 111. 518, 28 N. E. 1067: Bowman v. Wathen, 2 McLean, 376, Fed. Cas. No. 1,740, Aff'd 1 How (U. S.) 189, 11 L. Ed. 97; Reg. v. Cambrian Ry. Co., L. R. 6 Q. B. 422.
In this country the statute quite frequently provides that a ferry franchise shall be granted only to a riparian proprietor, and in such cases it is an incorporeal hereditament, which will descend with, or pass with a devise or deed of, the land of such proprietor (Haynes v. Wells, 26 Ark. 464; Mayville v. Boon, 2 J. J. Marsh. (Ky.) 224; Lewis v. Town of Gainesville, 7 Ala. 85), unless the riparian proprietor grants this right of maintaining the ferry to another, which it has been decided he may do. Bowman v. Wathen, 2 McLean, 376, Fed. Cas. No.
1,740, Aff'd 1 How. (U. S.) 189, 11 L. Ed. 97. But see Haynes v. Wells, 26 Ark. 464.
40. Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Conn. 40, 60, 42 Am. Dec. 716.
41. See 2 Morawetz, Priv. Corp. Sec. 923 et seq.; Memphis v. L. R. R. Co. v. Railroad Com'rs, 112 U. S: 609, 28 L. Ed. 837; Fietsam v. Hay, 122 111. 293, 3 Am. St. Rep. 492, 13 N. E. 501; Pierce v. Emery. 32 N. H. 484, 507; Evans v. Philadelphia Club, 50 Pa. St. 107.
42. 2 Blackst. Comm. 37; Price v. Price's Heirs, 6 Dana (Ky.) 107; Tuckahoe Canal Co. v. Tuc-kahoe & J. R. R. Co., 11 Leigh (Va.) 42, 76, 36 Am. Dec. 374.
43. 3 Kent, Comm. 459. And see State v. Georgia Medical Society, 38 Ga. 608, 626, 95 Am. Dec. 408, to the effect that such a franchise is not a hereditament.
Not be regarded as hereditaments, or "real" things in any sense, they lacking the element of perpetuity necessary for this purpose.44
- Annuities. The right of one person to receive a yearly stipend from another person, if not secured on or payable out of land, is known as an annuity. Formerly such rights were regarded as analogous to rents,45 from which they differ in that the latter are regarded as issuing out of land, or rather out of the profits thereof, but ultimately they came to be recognized as involving merely contractual rights of a personal nature. In England, however, if an annuity is, by the terms of its creation, granted to one "and his heirs," it will pass, on the grantee's death, like real property, to his heirs and not to his executors,46 though for other purposes it is recognized as personal property.47
- Corporate stock. In some early cases in England, as well as in this county, it was held that each stockholder in a corporation had an estate in the corporate property, and that consequently if that property was real, his share was also realty.48 In later cases the stockholder has been regarded as having only a right of action for his share of the profits as dividends, and it may now be considered as settled that corporate stock is always personal, and not real property.49
- Summary of conclusions. Summarizing the results of our inquiry into the nature of incorporeal things real, we find that the only things of this nature recognized
44. So it was held that a ferry franchise granted for a definite number of years passed to the personal representatives of the grantee. Lippencott v. Allander, 27 Iowa 460, 1 Am. Rep. 299.
45. 2 Pollock & Maitland, Hist. Eng. Law 133.
46. Co. Litt. 2a; Earl of Staf ford v. Buckley, 2 Ves. Sen. 170; Turner v. Turner, Amb. 776. An annuity so limited is known as a personal herditament. See Challis, Real Prop. (3rd Ed.) 46; 2 Am. Law Mag. 68.
47. Aubin v. Daly, 4 B. & A. 59; Radburn v. Jervis, 3 Beav. 450.
48. Buckeridge v. Ingram, 2 Ves. Jr. 652; Price v. Price's Heirs, 6 Dana (Ky.) 107; Welles v. Cowles, 2 Conn. 567.
49. Bligh v. Brent, 2 Y. & Coll. 268, 294; Bradley v. Holdsworth, 3 U. W. 422; Russell v. Temple, 3 Dane Abr. (Mass.) 108; Saup in this country are rights as to the use or profits of another's land, and franchises, or certain classes of franchises, and consequently these, together with land and things annexed thereto (corporeal things real), alone constitute the subject matter of real property.