CHAPTER XXXII.

GENERAL PRINCIPLES OF THE LAW AS TO REAL PROPERTY.

§ 353. The law of real property cannot, within the space. to which a consideration of it is allotted in this work, be regarded so fully as is to be desired, and but little can here be done more than to glance at the leading characteristics of the law, and, by references, point to such authorities as treat upon the subject, and cover the ground which we can but enter upon. The first great division of property into real and personal, now so familiar, seems not to have prevailed until the power of the lords over the soil and the common populace was weakened by the breaking up of the feudal system in England. As the power of the commons increased, and the legal rights of the subject, as contradistinguished from such privileges as might be accorded him by his lord, were recognized and protected by the power of the law, the peculiar remedies sought for grievances created this distinction. Thus, where one had been unjustly deprived of his lands, the remedy which he sought was to recover the possession of the land itself—the real property which he had lost; but where a chattel, goods, or money had been taken from him, his remedy was against the person who had deprived him of it, or converted it to his own use.1

12 Blackst. Com. 1-10; Kaimes' 3d Hist. Tract; Maine, Anc. L. Chap. 8. "Of all subjects of property," says Lord Kaimes, "land is that which engages our af

This distinction has been maintained with constantly increasing rigor, as the requirements of advancing civilization and refinement have made necessary; but, though the line of distinction between these two classes of property may, in general, be easily drawn, cases will appear in which property will be real or personal according to the circumstances which affect it.1

§ 354. Real property is corporeal or incorporeal.-Corporeal property consists wholly of substantial and permanent subjects, all which may be comprehended under the general denomination of land, which, in its legal signification, comprehends the soil or earth, and an indefinite extent upwards and downwards, and, ordinarily, whatever is erected or growing upon it, as well as whatever is contained within it, or beneath the surface, such as minerals or the like.2

Incorporeal property, or hereditaments, consist of rights and profits arising from or annexed to land, which are held to be of a real nature, or such as are said, in the older law terms, to savor of the realty.

The incorporeal hereditaments which subsist by our law are

fections the most, and, for this reason, the relation of property respecting land grew up much sooner to its present firmness and stability than the relation of property respecting movables." (Tracts, p. 96; Commonwealth v. Tewkesbury, 11 Metc. 55; Commonwealth v. Alger, 7 Cush. 53, 86; Cushman v. Smith, 34 Me. 258; 1 Washburn on Real Property, 2.)

11 Washburn on Real Property, 2. "Thus, a house or a standing tree may acquire the incidents of personal estate, while articles of a movable character may come to have qualities which belong to the realty, by the nature of the use to which they are fitted and applied." "There is a division of things which excludes the idea of separate, individual property, such as air, running water, the sea, sea-shore, etc." (Ibid.)

21 Washburn on Real Property, 2, 3. "This division rests upon the feudal notions of property, whereas the distinction recognized by the civil law was into res mancipii, and res nec mancipii, things which might or might not be handled, or corporeal and incorporeal." (1 Greenleaf's Cruise on Real Property, 46.) If a tree grows so near the confines of the land of two adjoining proprietors that the roots extend into and the limbs overhang the adjoining close, yet the property in the tree belongs to the owner of the land on which the tree was planted. The proprietor of the adjoining close may remove the branches which overhang his land; but he may not convert them, nor the fruit, to his own use." (1 Greenleaf's Cruise on Real Property, 46, Note 3; Holden v. Coates, 1 M. & Malk. 112; Masters v. Pollie, 2 Roll. R. 141; Lyman v. Hale, 11 Conn. 177; Beardslee v. French, 7 Conn. 125.) But quere, whether he may remove branches after they have overhung his land twenty years. (Pope v. Garland, 2 Y. & Col. 403.)

fewer than those known and recognized by the English law. We have no such rights as advowsons, tithes, dignities, and franchises of the chase, incident to a form of government and condition of the people different from that existing in the United States; but, as in the mother country, our law recognizes such incorporeal hereditaments as commons, ways, easements, aquatic rights, officers, franchises, annuities, and rents.1

§ 355. A fee-simple is the largest possible estate which a man can have in lands; it is a pure inheritance, clear of any qualification or condition, and it gives a right of succession to all the heirs generally. It is an estate of perpetuity, and is characterized by the absolute power of disposition; and the term “fec-simple” implies an entire right and ability to do with the property whatever the holder of the title may choose, subject only to the police regulations, and rights of eminent domain; the term sometimes used of "fec-simple absolute" is but surplusage as to the last word, and no person is capable of having a greater estate or interest in land than the fee-simple.

Every restraint upon alienation is inconsistent with the nature of a fee-simple; and if a partial restraint be annexed to a fee, as a condition not to alien for a time, or the like, or not to a particular person, it ceases to be a fee-simple, and becomes a fee subject to a condition.2

§ 356. Estates tail, or, as sometimes denominated, estates in fee-tail, are estates of inheritance, which, instead of descending to heirs, generally go to the heirs of the donee's body, his children born in wedlock, and, through them, his grandchildren,

21 Greenleaf's Cruise on Real Property, 47; 3 Kent's Com. 403. A corporate right to select and acquire land for the purposes of a charter, such as to build a railroad, or dig a canal, is an incorporeal hereditament. (Chesapeake & Ohio R. R. Co. v. B. & O. R. R. Co. 4 Gill & Johns. 1.) So is a permanent right to flow lands. (Harris v. Miller, 1 Meigs, 158.) So has been held a ferry right. (Bowmen v. Wather, 2 McLean, 176; Bridges v. Purcell, 1 Dev. & Bat. 192; 1 Washburn on Real Prop. 3–43.)

14 Kent's Com. 5; 1 Washburn on Real Prop. 57-79; 1 Green. Cr. 37-88; 1 Cruise Dig. 55; 1 Prest. Est. 431; 1 Wash. Real Prop. 67, Note 1. "Though the term fee-simple is applied in the manner above stated, and Coke divides it into fee-simple absolute, fee-simple conditional, and fee-simple qualified, or base fee; yet, in point of accuracy, it cannot be properly a fee-simple if it is either base, conditional, or qualified."

FARM-27.

great-grandchildren, etc., in direct line, so long as his posterity endures in a regular order and course of descent, and upon the death of the first owner, without issue, the estate determines. Estates tail were introduced into America with the other parts of the English jurisprudence, and subsisted in full force until the Revolution, which, in effect, by destroying all titles of nobility in the United States, swept away the chief inducement to the maintenance of this system of estates, and estates in feetail are now almost obsolete in this country, and are in most of the States abolished by legislative enactment.1

§ 357. An estate for life is a freehold estate, not of inheritance, but which is held by a person during his own life, or the life or lives of others. When the measure of the duration is the life of the holder of the estate, it is called an "estate for the tenant's own life"; when the estate is for the life of another person, it is designated "an estate per autre vie." Common instances of estates for lives are where a grant is made to one expressly for his life, or to a woman as long as she shall remain a widow, or to a man and wife so long as they shall both live; so the reservation by a grantor of the use and control of the granted premises during his life, creates in him a life estate with all its incidents, and if a dowress conveys her estate to another the latter becomes thereby a tenant for life per autre vie. The chief incidents of life estates are a right to take reasonable estovers, and freedom from injury by a sudden termination or disturbance of the estate.2

§ 358. An estate by curtesy is such as the husband takes upon the death of the wife, in the real property of which she died seized, provided they have had lawful issue born alive, and possibly capable of inheriting her estate; this estate is not con

11 Washburn Real Prop. 87-100. "The doctrine of entailment of estates in families was never consonant to the genius of the people of this country, and even in the few States where the form of estates tail remains, the application of it is very rare. And the facility with which even these may be barred by alienating them renders the possibility of creating them of little practical importance, though it does not do away with the necessity of understanding the rules by which such estates are governed." (4 Kent's Com. 15.)

21 Washburn on Real Prop. 101-47; 4 Kent's Com. 22; Preston on Estates, Vol. 1, 206-10; Wright on Tenures, 190.

fined, however, to such property as the wife has at the time of her death the legal right to, but also extends to her equitable rights in lands. The origin of this title is not clear-as to whether it is from the English law originally, or from the ancient sources of the civil law; but, whatever its origin, it has become, and for a long period been, a well known estate at common law; but, although a part of our fundamental law, received through the adoption of the common law, its existence in America has been hampered with statute laws to such an extent as to have lost many of its attributes and characteristics.

The essential requisites to entitle a husband to curtesy are: marriage, seizin of the wife during coverture, birth of the child alive during the life of the wife, and lastly, death of the wife while the husband lives. Upon the death of the wife, the husband is at once in as tenant by the curtesy, without having resort to a preliminary form to consummate his title to the property.1

§ 359. Dower is a provision for the wife which the law makes for her support, after her husband's death, out of his real property. In America, though the right of dower has been modified, and is not uniform through all the States, it has been regarded with favor. In most of the States, practically-California, Louisiana, and Indiana making the exceptions-dower is found to exist, in some form, and substantially, in most of them, like the dower of the common law.

The characteristic feature of the law of dower is that the wife takes, at once, a right of dower, generally an undivided

14 Kent's Com. 26; Bouvier's Law Dic. Vol 1, p. 539; 1 Wash. Real Prop. 148-70; Greenleaf's Cruise on Real Prop. Vol. 1, pp. 152-70. In Iowa, estate by curtesy is abolished, but the husband takes the same estate in the property left by the wife that she would have had in his by dower. No estate by curtesy exists in Louisiana, or in California, Indiana, Michigan, Dakota, or Nevada.

In New York, it would seem that the wife, by her separate conveyance, may defeat her husband's estate by curtesy. (Thurber v. Townsend, 22 N. Y. 517.) The right is expressly given by statute in Maine, Massachusetts, Rhode Island, Delaware, Minnesota, Kentucky, New York, Vermont, and Wisconsin.

The estate thus acquired by the husband terminates with his life, and inasmuch as he, generally, must join his wife in any conveyance which in her lifetime she could make, it results practically that curtesy extends but little, if at all, beyond the property of which the wife dies seized. (1 Wash. Real Prop. 141; Heath v White, 5 Conn. 235.)