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 .
Things as the objects of rights are sometimes divided into corporeal and incorporeal things, a corporeal thing being a thing of a visible and tangible nature and an incorporeal tiling being merely a right or group of rights which inheres in and is supported by a corporeal thing.27 The only corporeal thing of a "real" character is land, and whatever may be considered as a part thereof.28 Of incorporeal things, Blackstone enumerates, under the name of "incorporeal hereditaments," ten varieties, to wit, ad-vowsons, titles, commons, ways, offices, dignities, franchises, corodies, annuities, and rents.29
"Advowsons," which are rights of appointment to a church or ecclesiastical benefice: "tithes," which are the rights of the rector of a parish to one-tenth of the yearly increase of the inhabitants, arising either from lands, from stock on the lands, or from their personal industry; and "dignities," which are titles, such as that of an English peer, do not exist in this country. "Corodies," which were rights to receive sustenance at a monastery, are apparently obsolete. "Offices" are in this country never granted for longer than the life of the grantee, and are usually granted for a short period of years or subject to termination at any time, and consequently, even if regarded as a subject of property, which is most questionable, they cannot be classed with things real.30
27. Holland's Jurisprudence (9th Ed.) 93, 97; Challis, Real Prop. (3rd Ed.) 49 et seq.; Williams, Real Prop. (21st Ed.) 4, 30.
The division of real things or hereditaments into "corporeal" and "incorporeal" has been the subject of vehement objection by Austin (Jurisprudence (3rd Ed.) 371, 804), and by Digby (Hist. Real Prop. (4th Ed.) 304, note), on the ground that the law is concerned only with rights, while this division confuses rights and things which are the objects of rights, and treats them as if they were in pari materia. So it is said by Professor Hohfield (23 Yale Law Journ. at p. 23) referring to Blackstone's discussion of corporeal and incorporeal hereditaments. "Since all legal interests are "incorporeal"-consisting, as they do, of more or less limited aggregates of abstract legal relations-such a supposed contrast as that sought to be drawn by Blackstone can but serve to mislead the unwary. The legal interest of the fee simple owner of land and the comparatively limited interest of the owner of a "right of way" over such land are alike as far as "incorporeality" is concerned; the true contrast consists, of course, primarily in the fact that the fee simple owner's aggregate of legal relations is far more extensive than the aggregate of the easement owner." See also Salmond, Jurisprudence (4th Ed.) 220 et. seq.
28. 2 Blackst. Comm. 17; 3 Kent's Comm. 401; Challis, Real Prop. 28.
29. 2 Blackst. Comm. c. 3.
"Commons," "ways," and "rents," with which are to be included some other incorporeal things not named by Blackstone, belong to the category of what we have before referred to under the name of "Rights as to the use and profits of another's land."
- Franchises. A franchise is in England defined as
"a royal privilege or branch of the king's prerogative, subsisting in the hands of a subject;"31 and in this country as "a special privilege conferred by the government upon an individual or corporation, which does not belong to citizens of the country generally by common right."32
Franchises, then, are neither land, nor, except perhaps in exceptional cases, rights as to the use or profits of another's land, since rights of this character cannot be created by governmental act, as franchises are created.33 They are however said by Blackstone to be incorporeal hereditaments of a "real" nature, and such seems to be the law in England at the present day,34 and they have been so regarded in this country.35
30. 3 Kent. Comm. 454; Mech-em, Public Officers Sec. 464.
31. 2. Blackst. Comm. 37.
32. Bank of Augusta v. Earle. 13 Pet. (U. S.) 519, 595, 10 L. Ed. 274.
33. That is, the government cannot grant to a person rights as to the use or profits of another's land.
34. Reg. v. Cambrian Ry. Co. L. R. 6 Q. B. 422.
35. 3 Kent. Comm. 457; Alexandria Canal R. & Bridge Ce. v.
The question naturally arises, why rights of this character should bo associated with land in the quality of heritability involved in the word "hereditament," or should be regarded as things real and not as things personal. The reason for this assimilation of franchises to land seems to lie in the fact that, whatever may be the nature of franchises at the present day, in former times in England they were always exercisable within the limits of lands held by their owners, or were at least exercisable at a particular place, or within certain territorial limits, and accordingly, with other things of an incorporeal nature. were regarded as in the nature of land.36
The franchises which were of the greatest importance in mediaeval times possessed this element by locality to a decided extent, being usually rights granted to the great feudal landholders to exercise judicial or governmental powers within the limits of the land held by them of the crown, or similar rights granted to the members of a particular borough community;37 or quite frequently they involved the right of hunting in a particular district.38 The same local quality attaches to franchises to maintain a ferry at a particular point, and charge tolls for the use thereof, which have been in this country, as well as in England, regarded as real hereditaments;39 and the same may be said of a franchise to maintain a toll bridge.40
District of Columbia, 5 Mackey (16 D. C.) 376; Gibbs v. Drew, 16 Fla. 147; 26 Am. Rep. 700; Tuck-ahoe Canal Co. v. Tuckahoe & J. R. R. Co., 11 Leigh (Va.) 42, 76, 36 Am. Dec. 374; Phalen v. Com. 1 Rob. (Va.) 713, aff'd 8 How. (U. S.) 163, 12 L. Ed. 1030; Sellers v. Union Lumbering Co., 39 Wis. 525, 527.