Realty (law Lat. realitas, from res, a thing), in law, property in lands, tenements, and hereditaments. The common law of real property is distinctively and almost entirely English, founded on the rules and customs which in the feudal period governed the tenure of lands. It is the theory of the English law that no occupant of lands, not even a freeholder, has absolute ownership of them; he has only an estate. The king is lord paramount, and all the land in the realm is holden mediately or immediately of him. The chief estates in lands of the present time originated no doubt in the various forms of feudal tenure. Life feuds were probably earlier than feuds of inheritance; for as feuds were granted in consideration of a return of military services, and as this consideration was to be furnished by a certain individual whose already known valor or fidelity induced the gift, lands were without doubt primarily limited to the first donee; that is to say, they could neither be aliened by him to a stranger nor transmitted to his heirs. But as the lords became strong in their possessions, or when the times were more secure, it became safe and possible to grant estates of inheritance in feuds; namely, to the first taker and certain of his heirs or to his heirs in general.
From these modes of tenure came the modern estates respectively, for life, in tail, and in fee. Each of these is a freehold and a real interest, but no estate less than one for life (and a lease to A for 1,000 years is, in the contemplation of the law, a smaller interest than a grant for the term of his life) is a freehold or an estate in realty. But besides lands, things real, as the tautological phrase of the law is, comprise also tenements and hereditaments; and these are embraced in this term, because they possess some of the characteristic qualities of lands, as they may be holden on tenure or are inheritable. These terms may include things incorporate. Land includes only tangible or corporeal property: the ground or soil, and everything which is attached to it naturally, as trees, stones, or herbage, or by art, as houses or other structures. Growing timber, therefore, and standing grass or grain, so long as they are rooted in and supported by the soil, are parts of the realty, though they become personalty immediately on severance. But when corn or any other annual product of the soil is ripe and fit to be gathered, though not yet severed, it is personal property.
A permanent building erected on one's land becomes his property, even though the materials for it were wrongfully taken from another. But a building erected on another's land, by his permission, may remain the personal property of the builder. (See Fixture.) - Besides the incidents and elements of land which we have already mentioned, and which are examples of corporeal hereditament, there may be also incorporeal hereditaments, that is, rights annexed to and issuing out of lands, as rights of common and of way, easements, and rents. These rank next in dignity and extent to lands. (See Common, Rights of, Easement, Lease, and License.) A right of way is the right of passage over another man's ground. It may be founded in an actual grant by the owner of the soil, or may be claimed by prescription, which supposes a grant, or it may arise immediately from necessity; as where one sells a lot surrounded by other land of his, here, as a right of passage is necessary to the enjoyment of the lot granted, the grantor is conclusively presumed to have granted it to the purchaser. If the way thus granted and ordinarily used become impassable, it seems just that the purchaser shall have the right, founded on the same presumption, of passing over the adjacent lands of the grantor.
Not so, however, if the way be a private one, lying in actual grant, for here the grantor presumptively bound himself to repair. The right of the public in the highway is, ordinarily, only an easement. The fee in the soil belongs to the abuttors, and the complete use of the ground returns to them whenever it becomes discharged of the easement. The road bed of railways is generally subject to the same rules. The right of soil in land bounded by navigable rivers where the tide ebbs and flows, belongs to the owner of the land as far as low-water mark. The right to navigate such waters belongs, in all states of the tide, to the public. Grants upon streams above the flow of the tide convey not only the banks but the beds of the streams and the islands in them to the middle line of the water (ad filum medium aquoe). But the right of the grantee is qualified by the right of the public to use the stream as a highway if it be navigable.