§ 310. Real property. The law of real property, as it exists today in the United States, is full of intricacy. The commercial spirit of modern times has broken down many of the artificial barriers which the feudal system and the English laws of descent and tenures interposed to prevent the quick and easy transfer of landed estates. But enough of the old rules survive to confuse and perplex the student, and to tax the experienced lawyer, when he is called upon to decide concerning the rights of claimants to land. It is only intended here to give in outline some historical facts and general rules showing how and from what source titles to land are derived, and how they are transferred from one person to another.

§ 311. Titles in the United States. It is a fundamental principle in the English law that the sovereign. was the original proprietor of all the land in the kingdom. The same principle holds good in the United States as to all lands which are known as public lands. By the terms of their charters, the original colonies which became states reserved the right when the Union was formed to hold

and dispose of the land within the boundaries of their respective grants independently of the nation. Virginia, by cession of parts of her territory to the United States, abandoned her original claim, reserving to herself, however, certain portions now in the states of Kentucky and Ohio, which she bestowed upon her soldiers who served in the Revolutionary War. Titles to lands lying within the territories acquired by purchase and annexation since the formation of the Union, such as Florida, Louisiana, Texas, California, New Mexico, Arizona, Colorado, are held and derived from two sources.

§ 312. Land acquired by treaty. In acquiring these territories, so far as they were acquired by treaties and annexation, the United States agreed that titles held by grant from Spain, France and Mexico should be respected and treated as valid. Lands not granted at the date of the treaties became part of the public lands, and titles to such lands are derived from the United States.

§ 313. Indian titles. In the fifteenth and sixteenth centuries, when navigators from Europe made their discoveries upon the American continent, Spain, France, Holland and England tacitly agreed that discovery and occupancy gave title to the first comer, not only against other European nations, but against the native Indians. The absolute title of the Indians "yielded to the military, intellectual and moral power of the European immigrants." The Indians were allowed to occupy, but not to dispose of the land, except to the government within whose boundaries they lived. This rule grew out of the necessities of the case. To have allowed the Indian tribes to make transfers of land to other nations would have been a mischievous source of controversy and war.

The policy of our government has been to treat the Indians as wards. Whether our duty as guardian has been discharged with a due regard to the rights of our wards is a matter upon which opinions differ. Little by little, however, the Indian titles have been extinguished, and the Indians themselves have been confined to certain reservations, until now the lands they are permitted to occupy are a "mere patch" when compared to the immense domain which they used or possessed when the Europeans discovered the continent.

§ 314. Definitions.-Having considered the beginning or foundation of the titles to land in this country, we come now to speak of the interests which individuals may own in land. Things real consist of land, tenements and hereditaments. The term "land" comprehends any ground, soil or earth. It also includes all buildings erected upon it, though cases may arise where by agreement of parties, or by the nature of the structure and the intention with which it was placed upon the land, it may have and retain the character of personal property. Under the term "land" is included the water which covers the land, so that we do not speak of so many acres of water, but of so many acres of "land covered by water," which was the phrase used in pleading and conveyances, but now the term land will cover and include all water, whether of lake or stream, within its bounds. Tenement, in its original, proper and legal sense, signifies everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible or of an unsubstantial, ideal kind. But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatever may be inherited, be it corporeal or incorporeal, real or personal. Hereditaments are of

two kinds: corporeal, or such as affect the senses, such as may be seen and handled by the body; incorporeal, or those which are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

§315. Lands bounded by streams.-The grant of a stream of water by that name will not pass the land over which it runs, but the grant of a parcel of land passes the property in the stream of water which runs over it as much as it does the property in the stones at the bottom of the stream. One who owns land on both sides of a stream owns the whole bed of the stream. When a stream bounds the lands of two, each owns to the thread of the stream. The owner of land over which water flows has the right to use the water without diminution or obstruction, except so far as the reasonable use of the same by other riparian owners may affect it. Strictly speaking, he has no property in the water itself, but a simple use of it while it passes along. No proprietor of land bounded by a water-course has a right to use the stream to the prejudice of another proprietor. He may not dam it so that it overflows the lands of those above him, except (1) where he gets their permission, or (2) where for certain public uses the statute authorizes him to do so upon compensating the owners for the injury. He may not foul the stream by carrying on a noxious trade which poisons the water or makes it unfit for use.

Where land is described as bounded by a nonnavigable lake, pond or stream, the general rule is that the boundary is the center or thread. This rule does not hold where there is anything in the grant to indicate a different intention. Where land abuts on the sea or its estuaries, or upon rivers in which the tide ebbs and flows

-only these being navigable at common law-the boundary is at high-water mark. In America there is some conflict as to what rule shall be applied to fresh-water lakes and the large rivers, which are navigable in fact but not at common law. As to these the weight of authority places the boundary at low-water mark. Where a nonnavigable stream gradually changes its course, the boundaries follow the change in the waters; but if the change be abrupt, the ownership remains according to the former bounds.

A proprietor of an island in a water-course owns to the thread of each branch of the stream, which in its natural course divides it from the main land. And where a water-course is thus divided by an island, and the smaller portion descends on one side, the proprietor by whose land such smaller quantity flows is entitled to no more water than naturally runs between his bank and the island..

§ 316. Islands.-Where islands are formed in the sea or a navigable river, they belong to the sovereign; in rivers not navigable and above where the tide ebbs and flows, they belong to the owners of the adjoining land. If there be an island exactly in the middle of the stream, it is equally divided between the two proprietors. But if one portion approaches nearer to one side of a stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. When a river is the boundary line between two nations or states, if the original property be in neither and there be no agreement about it, each holds to the middle of the stream. But where one state is the original proprietor, and grants the territory on one side, as in the cession by Virginia of the territory northwest of the Ohio river, it retains the river within its domain and