filum viæ, (r) unless where a road has been set out over a waste
under an inclosure act; (s) and when the owner of the adjacent
land is entitled to the soil of the road, he may support trespass
or ejectment for any injury to the soil, or for an ouster. (t) If
the highway be not thirty feet wide, two or more justices may
order it to be widened, and to take for that purpose adjacent
land, but not so as to pull down any house or building, or to
take away the ground of any garden, park, paddock, court or
yard;
and for which compensation is to be agreed or assessed
by a jury, and paid, before the land can be taken. (u) All in-
juries to any highway are public nuisances at common law, and
in general indictable as such; (a) such as the common practice
of ploughing up a public footpath across an arable field, (y)
suffering adjacent ditches to be foul, or trees to grow over ; (z)
and it seems clear that any person might justify lopping such
trees so far as to avoid the nuisance. (a) But these and other
nuisances are by the Highway and Turnpike Acts removeable
or punishable by summary proceedings: and in general notice
is required to the occupier himself to remove the nuisance,
before another person can interfere. (b) Mere temporary ob-
structions are not indictable when absolutely necessary; but if
otherwise, they are so. (c) Thus the erecting a scaffold to
repair a house to a reasonable extent, or the unloading a cart
or waggon, and the delivery of any large articles, as casks of
liquor, if done with as little delay as possible, are lawful; though
if an unreasonable time were employed in the operation, they
would become nuisances. (c) And on repairing or rebuilding
a house, care must be taken that the incroachment on the high-
way be not unreasonable. (d) And a timber merchant, although
only occasionally cutting logs of wood in the street, and which he
could not otherwise convey into his premises, would not be ex-
cused by the necessity which, in chusing the situation, he himself
created; (e) but the removing them promptly, and not suffering
them to remain on the highway an unreasonable time, would
excuse him. (f) So if stagecoaches, carts, or other carriages,

(r) Ante, 195, 6; 7 B. & Cres. 304; 2 Stra. 1044; 1 Burr. 143; 9 B. & C. 95, 114; 3 Bla. C. 413; 4 Bing. 448; 2 Hen. B. 527; 11 East, 51; 2 Stark. R. 46; 7 Taunt. 39; 11 Price, 736; but that presumption must not always be relied upon, and other evidence should, if possible, be adduced, Holt, C. N. P. 463.

(s) Ante, 195, n. (g); but see 11 Price, 736.

(t) Supra, note (r).

(u) 13 Geo. 3, c. 78, s. 16.

CHAP. IV.

I. RIGHTS

TO REAL PROPERTY.

(1) Hawk. c. 76, s. 48.

I. RIGHTS

CHAP. IV. ply or be kept an unreasonable time in a public street, the owner may be indicted. (g) And public exhibitions in a street, PROPERTY. Occasioning a large concourse of people there, would be in

TO REAL

38. Toll-houses,

engines.

dictable. (h) But a mere transitory obstruction, as distributing hand-bills in a public highway, is not illegal. (i) Nor is it indictable to build a house higher than before, whereby the street becomes darker. (j) But these and other matters of the like nature are now usually regulated by particular local acts, as in those relating to the metropolis. Offences of a criminal nature to highways and turnpike roads, are in general punishable under the particular provisions of the general Highway or Turnpike Acts or local acts. A small nuisance occasioned by an act producing great public benefit may be excused. (k)

38. Toll-houses, Turnpike Gates, and Weighing Engines. turnpike gates, These are a description of corporeal property fixed to the and weighing realty, as the places and means of securing the receipt of the principal property, which is incorporeal, viz. tolls and penalties for their nonpayment. These are usually regulated and protected by the general highway (7) or turnpike acts (m) or by local acts. The occupation of them does not create a settlement. (m) The interest in these is usually vested in the trustees of the turnpike roads, or the mortgagee of the toll and toll-houses; and if the trustees should have no power under their local act to mortgage the toll-houses, they being trustees for the public, will not be estopped from disputing their power to mortgage, and may therefore support ejectment against their own mortgagee. (n)

39. Rail roads,

waggon roads, trucks, &c. (0)

Criminal injuries to these are punishable under the 7 & 8 Geo. 4, c. 30, s. 14, which enacts that if any person shall maliciously throw down, level, or otherwise destroy, in whole or in part, any turnpike gate, or any wall, chains, rail, post, bar, or other fence belonging to any turnpike gate legally erected, or any house, building, or weighing engine, legally erected, he shall be guilty of a misdemeanor, and punished accordingly.

39. Rail Roads, &c. are highways to be used in the particular manner in which railways are to be used, and subject to the statutes under which they may have been constructed. (p) (g) 6 East, 427; 3 Campb. 224.

(h) 1 Vent. 169; 1 Mod. 76; Bac.

Ab. Nuisance.

(i) 1 Burr. 516.

(j) 1 Ld. Raym. 737.

(k) Ante, 198, note (n); but see 1 B.

& Adolp. 441.

(1) 13 Geo. 3, c. 78.

(m) 3 Geo. 4, c. 126.
(n) 2 Term Rep. 171.

(0) See in general Tucker on Trade, 116, 117; 2 Chit. Com. L. 135, 136;

2 B. & Ald. 646; 10 Ves. 92.

(p) 2 B. & Ald. 646. See 1 B. & Adolp. 441.

I. RIGHTS
TO REAL

PROPERTY.

Waggon ways and trucks are particularly named in the Malicious CHAP. IV. Injury Act, 7 & 8 Geo. 4, c. 30; (q) and the 24th section of the same act would extend to any wilful or malicious injury to a rail road; and injuries in the nature of larceny to the iron, or other materials of a rail way, would constitute offences against the 7 & 8 Geo. 4, c. 29, sect. 44.

11. INCORPO REAL REAL PROPERTY. (")

in

it differs from

property, and

II. INCORPOREAL REAL PROPERTY is so termed, because it has no "corpus," and is not tangible or visible, nor is the object of the senses, but itself exists only in legal contempla- 1. Defined, and tion; though it may produce something substantial and benefi- what respects cial to the owner, as in the instance of the right to tithes, and corporeal real in that respect it is principally distinguished from corporeal also from perreal property, such as land and houses. The corporeal pro- sonalty. perty is the land itself; the incorporeal is merely the right to have some part only of the produce or benefit of such corporeal property, or to exercise a right, or have an easement or privilege or advantage over or out of it. The possession of corporeal property, as houses and lands, is capable of actual and visible delivery and transfer, and is, therefore, said to lie in livery (meaning delivery of seisin) or possession. Whereas incorporeal property is incapable of actual possession, and passes by the mere deed of grant, and is, therefore, said to lie in grant. (s) Such as advowsons, tithes, commons, ways, rents, &c. which, together with all other freehold easements, must be granted by deed, and pass by the execution of such deed, without any actual or supposed delivery of any thing tangible.(t) The instance of an advowson well illustrates the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages, but is merely the right to give some other man a title to such bodily possession. It is not a jus habendi but a jus disponendi. The right of advowson is not the object of the sight or touch, and

(9) Sect. 6.

(r) See division of subject, ante, 145 to

150.

(s) Co. Lit. 9, 172; Com. Dig. Grant. But incorporeal hereditaments will pass by other kinds of conveyances than mere grants, as by bargain and sale, Cro. El. 166; covenant to stand seised, 4 Com. Dig. 135; or lease and release, Id. ib. 145.

(t) Id. ibid.; 2 Bla. C. 314, 316. A

lease for any number of years of land may
even, since the statute against frauds, be
created by writing signed by the lessor;
but a lease for years of an incorporeal
thing (as a several fishery in the arm of
the sea or navigable river) can only be
made by lease under seal, 5 Bar. & Čres.
875. So a lease of tithes must be by
deed, or the lessor is still rateable, 4
Man, & Ry. 434; 9 B. & Cres. 479.

I. RIGHTS

TO REAL

CHAP. IV. yet it perpetually exists in the mind's eye and in contemplation of law. It cannot be delivered from man to man by any visible PROPERTY. bodily transfer, nor can corporeal possession be had of it by the owner, for the latter exclusively belongs not to the patron but to the person whom he has a right to present. The patronage can, therefore, be only transferred by operation of law and grant under seal. (u) The right of advowson, entitling the owner to present to the church, when vacant, an ecclesiastical relative or friend, and reward merit, is of high estimation, and saleable for large sums of money, but the possession of such right can never legally produce pecuniary advantage to its owner, as he cannot sell the next presentation without being guilty of simony when the church is either vacant, or the incumbent in extremis; (x) though a sale of the next presentation, the church being then full, is valid. (y)

There are several circumstances in which at common law, and also by statute, incorporeal hereditaments differ materially from corporeal real property and also from personalty, and first as respects their creation and the modes of transfer, and the evidence of title. Corporeal real property, before the statute against frauds, passed by verbal feoffment and livery of seisin or possession; whereas a deed of grant was always at common law and still is essential to the creation or transfer of a freehold interest in any incorporeal hereditament or easements, and consequently in general a mere verbal or written authority, not under seal, to present to a living, or to use a right of common or way, or other easement, passes no substantial permanent right or interest, but is at most a mere license or excuse, in general revocable at will. (≈) Again: a right to or interest in real property corporeal cannot be claimed by grant or by prescription, which supposes it, but must be claimed by sixty years' exclusive seisin, or by feoffment, or by lease and release, or covenant to stand seised, &c.; whereas as regards incorporeal real property, it must always have been claimed by custom, or by express or supposed grant, or by

(u) 2 Bla. C. 21, 22; note, it is there stated that an advowson may pass by verbal grant, but that position is clearly erroneous, Co. Lit. 9; 1 Saund. 228.

(r) Cro. Eliz. 685 ; 19 Vin. Ab. 458; 2 Bla. R. 1052.

(y) 3 Cru. Dig. 33.

(2) 5 Bar. & Cres. 221 to 875; 8 Bar. & Cres. 293; 4 East, 107; 9 Bar. & Cres. 479. It has been well observed, that it is singular how in the teeth of the statute against frauds, 29 Car. 2, c. 3,

s. 1 & 4, it has been held that a parol license or agreement may still create a perfect right to enjoy an easement. See Sugden, Vend. & P. 8th ed. 75, referring to Sayer's Rep. 3; 8 East, 308, &c. It is equally singular that it should have been settled, that a mere deposit of deeds, without even a written memorandum, shall create an equitable mortgage, and consequently in effect a substantial interest in land without writing.

1. RIGHTS TO REAL PROPERTY.

prescription, which supposes such a grant; or now, under the CHAP. IV. important recent act, by alleging the continued enjoyment of the right of common, way, watercourse, use of the water, ancient lights, or other easements, (except tithes, rents, and services) for one of the periods mentioned in the act, viz. sixty, forty, thirty, or twenty years, according to the subject-matter claimed and other circumstances. (a)

Incorporeal hereditaments differ also from corporeal in respect of many of their incidents, privileges, and liabilities. In general, no incorporeal hereditament or mere easement, however valuable, (excepting rents-charge, (b) tithes, and tolls of fairs and markets,) (c) give no right to vote in an election of a representative in parliament.

Nor are the same rateable to the relief of the poor; and it is only under the express terms of 43 Eliz. c. 2, s. 1, that they can be so rated, as in the instance of tithes impropriate and proportion of tithes and mere rights of common or way are not rateable. (d)

Some incorporeal hereditaments are capable of being extended under an elegit the same as corporeal property, as for instance a rent-charge. (e) But not a rent-seck, (f) nor an advowson in gross. (g)

In general, also, incorporeal property having no corpus, and not being the object of touch or force, the remedies are peculiar; and ejectment, trespass, and trover are inapplicable, unless expressly given by particular statute, as in the case of ejectment for tithes. (h)

With respect to tenure, and the modes of acquiring incorporeal hereditaments, many of them may, like corporeal real property, be of copyhold tenure. Thus, a fair or a market appendant to a manor may be granted by copy of court roll. (i) So tithes, &c., when the custom will warrant; (k) and many incorporeal things may pass by themselves without land, and without any relation to land, by copy of the court roll. (1)

The rights to most incorporeal real hereditaments descend from ancestor to heir the same as corporeal real property, in which respect they differ from personalty, which upon the death

(a) 2 & 3 W. 4, c. 71; see more fully post, tit. Prescription and Custom.

(b) If duly registered under 3 Geo. S, c. 24.

(c) See Wordsworth, Elections, 29. (d) 9 Bar. & Cres. 827; Burn's J., Poor, 68, 83; see exceptions, ante, 181, 2. (e) Gilb. Ex. 39; Moor, 32.

(f) Cro. Eliz. 656.

(g) Gilb. Ex. 39.

(h) 2 Stra. 854; Ld. Raym. 191; 52
H. 8, c. 7; Adams' Eject. 18.
(i) Willes, 324.

(k) Id. ibid.

Id. ibid.