Land in its most natural and vulgar meaning, includes nothing but earth; but the law has annexed to the word this artificial meaning. by which it comprehends every thing upwards in a direct line to the heavens, and every thing downwards in a direct line to the center of the earth. No perfon has therefore a right to erect a building that shall hang or reach over his neighbour's land; nor to dig a mine that shall run under his neighbour's land. The owner of the furface of the ground, owns all that is over and under it,— and the conveyance of land fimply conveys, not only the face of the earth, but all mines, woods, waters and buildings, as well as fields and meadows. It is true, that these particular things, excepting water, may be granted, or conveyed by their refpective names: but nothing will pafs thereby but the thing specified, and what falls literally within the meaning of the term made use of: but land being a general term, the conveyance of it transfers every thing annexed to it either above or below the furface, not only buildings, and mines, but corn, fruits, and herbage growing thereon, which are confidered as a part and parcel of the realty till fevered from it. So whatever is faftened to a houfe, is confi dered as part of the realty, and paffes with the building. It feems fingular, that water fhould pass under the denomination of land; but the fact is, that water cannot be conveyed on account of its perpetual fluctuation, and change, and no man has any thing more than a temporary, ufufructuary property in it but the land, or ground covered by water, is permanent and fubftantial, and the conveyance of it by operation of law, conveys the water that covers it. A grant of the water pafles only a right to use it, or a right of fishing.

Tenement is a word of more extenfive fignification than lard, tho generally speaking it is applied only to buildings, yet in its primary and legal fenfe, it includes every thing that may be holden, and is of a permanent nature, whether corporcal, or incorporeal.

Hereditaments by the English common law, is faid to be a tern of still larger fignification, comprehending not only lands and tene. ments, but every kind of property that can be inherited, and which on the death of the owner, defcends to his heirs, and goes pot into

the

€ Co. Lit. 6.

the hands of the executor or adminiftrator. By the English common law, certain implements of furniture, of a perfonal nature, under the name of an heir-loony, defcend by cuftom to the heir, together with the house, which being inheritable, are called hereditaments, as well as lands. But our law knows nothing about heir-looms. If we take the word hereditament according to the English definition, that is, to comprehend every thing that can be inherited--then the word would be as extenfive as the word property, becaufe every fpecies of property by our law can be inherited but the word has never been extended beyond the meaning of it as limited by the English law, and as we know of no perfonal property, that can come within the idea of an heir-loom, the confequence is, that this word here can be of no larger import than lands or tenements, and whenever it is ufed in our flatutes, it is not intended to comprehend any thing but real property, particu larly as it is ufed in the ftatute of frauds and perjuries. As hereditament is nearly fynonimous with other words, as it is apt to lead the mind to mistakes concerning it, by the common law defi. nition of it, and as there can be no neceffity for the ufe of it, to explain our law, it must be confidered as an improper and unneceffary term, and ought to be rejected.

WE CAR

CHAPTER FOURTH.

OF THE TENURE OF THINGS REAL.

E can hardly fay with propriety, that there is a tenure of our lands, for this feems to imply upon the principles of the feudal fyftem, a holding them of fome fuperior. But the truth is, that our lands are not holden of any perfon. Every proprietor has an abfolute and direct dominion in his own right in the foil independent of any fuperior.

As that branch of our jurisprudence, that refpects landed property, has never been embarrafied with the flavith principles of the fflem of feuds, it will be unneceflary to enter into an investigation of that copious and interesting subject, a fubject which has been illu brated and exhmfted bythe labours of the greatest literary charafters

racters in the republic of letters. It would be a rich fource of amufement to afcend to the origin of that fyftem, and trace its progrefs and variations to the prefent period. But as this is not within my plan, I fhall confine my researches to a few obfervations that refpect the laws of this ftate.

In the fettlement of this country, our ancestors, as foon as they united in fociety, confidered the right to the territoy, to be vested in the public, and proceeded to make grants to individuals. The charter of Charles II, confirmed the title of the lands, to be holden of him, his heirs and fucceflors, in free and common focage, rendering as a rent, one fifth part of the profits of all the mines of gold and filver, that should be difcovered in the granted territory. Socage at this time was the freet and noblest tenure in England. Such lands were faid to be holden of fome fuperior, on the confideration of rendering a rent reduced to a certainty, and of a free and honourable kind; but as there were no mines of gold and filver within the territory granted by the charter, there was no actual refervation of any rent. Ofcourfe, the lands were only nominally holden in focage, but the proprietors had in effect, an abfolute allodium. On the feparation of this State from the British em pire we ceafed to hold our lands by the nominal tenure of focage, tho in the revifion of our laws in 1784, the ftatute was retained, which declared the tenure to be free and common focage, yet as the proprietors of our lands were not fubjected to any of the duties required of tenants in focage, they could never be con£dered otherwife, than holding allodial eftates.

Since writing the foregoing, the legislature have paffed the following act. An act declaring the tenure of lands in this flate.Whereas by the charter of Charles II. the lands in the then colony of Connecticut, were holden of the king of England, by the tenure of free and common focage, and by the establishment of the independence of the United States, the citizens of this state, became vefted with an allodial title to their lands. Be it therefore declared, That every proprietor in fee fimple of lands, has an abfolnte and direct dominion and property in the fame.

CHAP.

CHAPTER FIFTH.

OF THE SEVERAL KINDS OF ESTATES IN THINGS REAL.

¿AN eftate in lands, fignifies the intereft that the owner has in

them. Eftate is a term common to all kinds of things, and is frequently ufed as fynonimous with property, including the thing itself, as well as the intereft the owner has in it. We have heretofore remarked, that property literally fpeaking, was applicable only to the deminion and ownership we have in things, tho by cuftom, it is now extended to the things themselves. Thus, eflate properly fignifies nothing but the kind, or quantity of intereft, that the owner has in things, tho by cuftom it has been extended to the things themselves: but in our prefent enquiries, the term will be taken in its literal sense.

Estate then may be defined to be a term importing the state, condition, and circumftances of the owner, in refpect to his property. To obtain a precise idea of estates, we must consider them in a threefold view: first in respect of the quantity of interest the owner has in things: fecondly, the time fuch interest is to be holden and enjoyed and thirdly, the number and connexion of the owners,

We begin in the first place, to confider eftates in refpect of their quantity of intereft. This is afcertained by their duration and ex. tent, and the power of the owner to ufe and improve. Eftates therefore must neceffarily be of different kinds. Some are for the life of the owner, or of fome other perfon, being as uncertain as the lives of men. Others are reduced to certainty, being circumfcribed in a limited period of time, as fo many years, months, or days; or eflates may be unlimited and perpetual, being vefted in the proprietor, and his heirs and afligns forever. The power of the owner to improve his lands, is according to the nature of the estate. An abfolute proprietor may improve them according to his own pleafure, while a perfon who has a limited estate mult improve it according to certain reftrictions refulting from the nature of it. Thus the duration of the eftate, and the power of using it, determine the quantity of interest.

d 2 Black. 103.

The

The moft general and primary division of estates, is into estates of freehold, and eftates lefs than freehold. An eftate of freehold, by our law, may be defined to be where the proprietor has a lawful right to things real, to hold and improve them for the term of his own life, and all fuch proprietors may be denominated freeholders. Eftates of freehold are fubdivided into freeholdeftates of inheritance, and not of inheritance, being for life only. The former are divided again into estates of inheritance, abfolute,' or fee fimple; and estates of inheritance, limited or fee-tail. Elates not of inheritance, or for life, are divided into conventional or fuch as are created by the act and agreement of the parties, and fuch as are legal, refulting from the conftruction and operation of law. The former comprehend eftates created by leafes for life, and the latter where a perfon is tenant by the cur tefy, and a widow is tenant in dower. Eftates lefs than freehold are divided into three kinds. Eftates for years, eltates at will, and eftates by fufferance.

By the law of England, every owner or holder of lands, is called tenant, fuch as tenant in fee fimple,-fee tail,-for life, or years. This originated from a doctrine in the feudal fystem, that the abfolute property of the foil is in the king, and that all the subjects hold of him, as the fuperior lord. This properly establishes them to be tenants. But in this state, we never apply the word tenant to the owner of an estate in fee. denominated the proprietor in fee, for the purpose of expreffing the independent rature of our title to real property. The term tenant, has ever been applied to thofe perfons, who having an eftate, lefs than fee fimple, may with propriety be faid to hold of, or be tenants to the proprietors in fee.

He may properly be

No perfon is confidered in contemplation of law, to be the owner of real property, unless he has a freehold eftate. All eftates of an inferior nature, are called chattles real, and the owners are deemed to have nothing but a ufufructuary right in the foil.

VOL. I.

I i

CHAP.