INTRODUCTION. A FORMER Volume of a proposed Digest of the Law of Property in Land, after having given a short abstract of the Sources of the Law, treated of Estates in Land. An estate was there explained to be a right to the possession of land for a limited duration of time; and for the purposes of defining the various estates allowed by law, and of stating the rules regulating the limitation and order of succession of estates, land was there considered only in regard to its qualities, as a subject of property, of permanence and continuous use; being the qualities which give the power of portioning out the possession into estates or successive limited durations of time. But no consideration was there given to any complications which might arise in applying the doctrine of estates, so derived, to the specific uses and profits which in fact constitute the beneficial elements of property in land. The use and enjoyment of land was there considered merely as flowing on unitedly and uniformly during each successive estate, and as, therefore, admitting of a substitution of ownership at any moment of time, without any difficulty in ascertaining the rights of successive owners (a). The present volume proceeds to consider land in regard to the actual beneficial elements which make it valuable as a subject of property. Land here appears as a complex subject, having many distinct uses and profits, some of which sufficiently conform to the above abstract conditions of permanence and continuity, but others vary from them, more or less. For instance, the profit of land derived (a) See the Introduction to Volume I. L. B from the natural products of growth on the surface is more accurately described as recurrent than as continuous. With some kinds of produce, as annual crops, it is uniformly recurrent, subject only to the variations of cultivation and of the seasons; with other kinds of produce, as wood and timber, it is recurrent at longer and less regular intervals. Again, the profit of land for some purposes is neither continuous nor recurrent; as in the getting and removing of minerals and portions of the soil itself; the profit then consists in taking away the substance of the property, which can only be done once for all. Only for such purposes as require mere space can the use of land be described with perfect accuracy as uniform and permanent. It is obvious that the principle of measuring out estates by successive intervals of limited duration, upon the assumption that the enjoyment of the subject of property is uniform and concurrent with the continuance of the estate, cannot be applied strictly to those uses and profits which fail in satisfying this assumption; and that consequently modifications are necessary to correct the irregular and uncertain distribution of the benefits which would occur, in regard to such uses and profits, upon the substitutions of ownership. A tenant for life or for years, for instance, during his tenancy might exhaust the land and its resources by working out the mines and cutting down the timber, and thus leave it permanently impoverished to his successor; or, on the other hand, he might till and sow the land, and be unable to take the crop before the expiration of his estate. It becomes necessary, therefore, in order to secure the rights of successive owners, that provision be made by law for the purpose of securing to a present tenant the fruits of proper management and cultivation, and at the same time of securing his successor against the risks of permanent waste and deterioration. Accordingly it is now purposed to treat successively the various uses and profits of land which are recognized in law as subjects of property; and concurrently to ascertain the quantity or degree of the uses and profits appropriated by law to different estates. The fee simple being the largest estate known to the law, and therefore including every beneficial incident allowed by law, it is purposed to consider how far the full enjoyment is modified and restricted in appropriation to the particular estates of fee tail, terms for life and for years, or other less interests in the land, and what securities are provided for the due enjoyment by each in succession. These topics occupy the first Part of the present volume under the general title of "Uses and Profits of Land." Again, the various uses and profits of land are considered above as collectively forming one entire subject of property, united in the ownership for the time being, though subject to substitutions of ownership from time to time. But it will appear that some uses and profits are capable of being appropriated in separate ownership to one person concurrently with the possession of the same land by another person for all other purposes. In other words, the land and its possession may belong to one person, whilst at the same time some special use or profit of the land not involving possession of the land itself may be assigned in separate ownership to another person; so far infringing upon the integrity of the full ownership and enjoyment of the former. Property of this kind is exemplified by rights of way, rights to the access of light, and other like rights of use, which, under the term "Easements," one person may be entitled to enjoy over the land of another. Such also are the rights of taking from the land minerals, stone, turf, herbage, and other like profits, known in law as "Profits à prendre," which may be severed in ownership from all other uses and profits of the land and held as separate subjects of property. These rights are treated in the second Part of this volume under the title of "Uses and Profits in Land of another." |