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includeth also all castles, houses, and other buildings: for they consist, saith he, of two things; land, which is the foundation, and structure thereupon; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism; but such is the language of the law: and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only; either by calculating it's capacity, as, for so many cubical yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. For water is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary, property therein: wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immoveable: and therefore in this I may have a certain substantial property; of which the law will take notice, and not of the other.

f

LAND hath also, in it's legal signification, an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelum, is the maxim of the law upwards; therefore no man may erect any building, or the like, to overhang another's land: and, downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day's experience in the mining countries. So that the word "land" includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them, except in the instance of [ 19 ] water; by a grant of which, nothing passes but a right of fishing: but the capital distinction is this, that by the name

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of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of; but by the name of land, which is nomen generalissimum, every thing terrestrial will pass".

h Co. Litt. 4, 5, 6.

CHAPTER THE THIRD.

OF INCORPOREAL HEREDITAMENTS.

AN incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, corporeal hereditaments are the substance, which may be always seen, always handled: incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance; and may belong, or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation; though their effects and profits may be frequently objects of our bodily senses. And, indeed, if we would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or hereditament, which produces them. An annuity, for instance, is an incorporeal hereditament: for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the produce of them, as the tenth sheaf or tenth lamb, seem to be completely [ 21 ] corporeal; yet they are indeed incorporeal hereditaments: for they being merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense: that

a Co. Litt. 19, 20.

casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor of being delivered into bodily possession. (1)

INCORPOREAL hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies, or pensions, annuities, and rents.

I. ADVOWSON is the right of presentation to a church, or ecclesiastical benefice. Advowson, advocatio, signifies in clientelam recipere, the taking into protection; and therefore is synonymous with patronage, patronatus: and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, (from whence, as was formerly mentioned", arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided he were canonically qualified) to officiate in that church, of which he was the founder, endower, maintainer, or, in one word, the patron.

THIS instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages; but it is a right to give some other man a title to such bodily possession.

Vol. I. pag. 112.

This original of the jus patronatus, by building and endowing the church,

appears also to have been allowed in the Roman empire. Nov. 26. t. 12. c.2. Nov. 118. c. 23.

(1) The last clause of this sentence is scarcely expressed with proper precision, and runs into the very error, against which the reader is guarded in the text, of confounding the produce with the thing producing them. "The casual share of the annual increase” is in fact as much an object of sense before severance as after; just as where a number of acres belong to a number of individuals, and are allotted yearly to each in certain proportions, though no one before allotment can say which is his acre, yet undoubtedly each acre is still corporeal, and an object of sense. But the right to the casual share is always incorporeal, as well after as before the

severance.

The advowson is the object of neither the sight, nor the touch; and 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 bodily transfer, nor can corporal possession be had of it. If the patron takes corporal possession of the [ 22 ] church, the church-yard, the glebe or the like, he intrudes on another man's property: for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant (2), either oral or written, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

ADVOWSONS are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or presentation, so long as it continues ́annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant: and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words'. But where the property of the advowson has been once separated from the property of the manor by legal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more; but is for the future annexed to the person of its owner, and not to his manor or lands. (3)

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(2) Mr. Christian has cited Woodeson's remark upon the inaccuracy of this expression; in no age of the English law could an advowson in gross, i.e. by itself, pass by word of mouth, though before the statute of frauds, it might have passed in that manner as an appendage to a manor, which was capable of being so conveyed. But the entire usage of the word "grant" in this passage is unlawyer-like, for every" grant" in law is by

deed.

(3) Disappendancy (as it is called) may however be only temporary under certain circumstances, which are collected in Burn's Ecc. Law. tit. Advowson,

c 3

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