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 .
Not infrequently one has the right or ability to create an interest in land without regard to whether he has any estate in the land, or to the character of the estate which he may have therein. He is in such case said to have a "power" over the land, or a "power of disposition." A power over land may be defined as a right or ability in a person to create an estate or interest in the land, or to impose a lien thereon, which, when exercised, takes effect in diminution or to the destruction of the rights of others in the land, or if it takes effect in diminution or to the destruction of an estate belonging to the person exercising the power, does so by reason of the power alone, without reference to his ownership of the estate.
A power over land, a mere ability to dispose thereof, is obviously not an estate therein1 nor does it involve rights of property or ownership.2 It has even been said not to be an interest in the land,3-4 but whether this is so depends on the meaning which we may choose to give to the indefinite expression interest. Especially when the donee of the power may exercise it for his own benefit5 does it seem difficult to say that he has no interest in the land.6
Excluding from consideration the distinct statutory systems of powers which are in force in some states,7 powers may be divided into four classes, according to their mode of creation and operation: (1) Common1. Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143, 10 S. E. 355; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Harrison v. Battle, 21 N. C. 213.
2. Ex parte, Gilchrist, 17 Q. B. D. 521; Gilman v. Bell, 99 III. 144; Sewell v. "Wilmer, 132 Mass. 131; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23. See editorial notes in 8 Columbia Law Rev. 652, 11 Id. 664. That it involves no "right or title," see Co. Litt. 265b; Md. Mut. Benev.
Soc. v. Clendenin, 44 Md. 429, 22 Am. Rep. 52.
3-4. Security Company v. Pratt. 65 Conn. 161; Patterson v. Lawrence, 83 Ga. 703, 7 L. R. A. 143. 10 S. E. 355; Md. Mut Benev. Soc. v. Clendenin, 44 Md. 429, 22 Am. Rep. 52; Eells v. Lynch, 8 Bosw. (N. Y.) 465.
5. Post Sec. 315, note 23.
6. See a discriminating note in 24 Harv. Law Rev. at p. 654.
7. Post Sec. 333.
[Sec..311 law powers; (2) Statutory powers; (3) Powers taking effect as executory limitations, and (4) Equitable powers. These various classes of powers will be described in the four following sections.8