(5)

CHAPTER I.

LAND IN GENERAL.

Terms of description-land-water-manor-messuage—appurtenants -rents, profits and uses.

Tenement hereditament-corporeal and incorporeal — reversionary estates.

Identification of land, by name-by the occupation-by map.

Boundaries-duty of tenant to preserve-commission to ascertain— copyholds-encroachments.

Property in land above and below the surface-partition of surface and sub-stratum.

Land as the subject of property, including all the beneficial uses and profits of which it is capable, may be described in conveyances, wills and legal proceedings by the general term "land"; or by terms indicating the condition of the land, as arable, meadow, pasture, wood. It may also be described by special terms referring to the legal condition of the property, as manor, honor, forest, park, warren, farm; or to the buildings upon it, as castle, hall, grange, messuage, house; or to other distinctive characteristics, as close, curtilage, garden, orchard. The terms of description are construed with reference to the context of the instrument and the circumstances to which it is applied (a).-"Water" is not in general a sufficient Water. description of the land upon which the water rests; but it may appear from the context and circumstances that it is so used and intended; the proper description is "land covered with water" (b). The term "fishery" has been held sufficient to pass the soil of a lake, where the con

Manor.

Warren.

Farm.

Messuage or house.

veyance was made by livery of seisin and with a reservation of rent; both which circumstances are inapplicable to the incorporeal property in a mere right of fishery (c). -"Manor" is sufficient to pass all rights comprised in the manor designated; so that the demesne lands pass to the grantee, together with all seignorial rights, rents, services and casualties (d).-" Warren " may be taken, according to the intention of the instrument, to mean the land itself used as a warren; or it may mean merely the franchise of warren, that is, the right of taking certain wild animals in the land of another, without possession of the land itself. The term "warren of conies" has been taken to pass the soil, in accordance with the intention shewn in the deed of conveyance (e)." Farm" primarily means land demised to a lessee, and refers to the interest of the lessor; but it also mean the interest of the lessee (ƒ). A devise by will of "farms" in conjunction with other real estate, upon limitations applicable to real estate only, was held not to include a leasehold farm of the testator (g).-"Close" in the ordinary sense denotes an inclosure or piece of land inclosed with boundaries; but it may from the context or circumstances receive a wider meaning ().

may

"By the grant of a messuage or house, the orchard, garden and curtilage do pass, and so an acre or more may pass by the name of a house"; but it is a question of evidence in applying the deed or instrument of conveyance, what is parcel of or appurtenant to the house (i). Appurtenant. It is a general rule that land cannot pass under the

(c) Marshall v. Ulleswater Nav. Co., 3 B. & S. 732; 32 L. J. Q. B. 139; Holford v. Bailey, 8 Q. B. 1000; 13 Q. B. 426; Devonshire v. Pattinson, L. R. 20 Q. B. D. 263; 57 L. J. Q. B. 189.

(d) Duke of Leeds v. Powell, 1 Ves. sen. 172; Duke of Beaufort v. Swansea, 3 Ex. 425.

(e) Rebinson v. Duleep Singh, L. R. 11 C. D. 798; 48 L. J. C. 758; Beauchamp v. Winn, L. R. 6 H. L. 236; 38 L. J. C. 556.

(f) Plowden, 195; Lane v. Stanhope, 6 T. R. 345.

(g) Holmes v. Milward, 47 L. J. C. 522.

(h) Richardson v. Watson, 4 B. & Ad. 787.

(i) Co. Lit. 5b; 56b; Plowden, 171; Smith v. Martin, 2 Wms. Saund. 400; Chard v. Tuck, 3 Leon. 214; Cro. Eliz. 89; Doe v. Collins, 2 T. R. 498; Doe v. Webster, 12 A. & E. 442.

mere description of an "appurtenant" of a house or land, unless it is in fact appurtenant in the sense above stated; and in that case it would pass as being included in the house or land described, without mention of appurtenants (). But the word "appurtenant" may be used. in a deed or will with reference to the context and circumstances as intending other land lying near to, or usually held or occupied with, the house or land described in the instrument; and it is then construed according to the meaning intended (1).

A grant or devise of "rents and profits" of land passes Rents, profits the land itself (m); and a devise of "rents" may pass land, and uses. according to a common use of the word "rents" for land (n). A devise of the "income" of land is equivalent for this purpose to a devise of the rents and profits (0); and a charge upon the income of land is primâ facie a charge upon the corpus of the land (p).—A grant of "the profit" of land is sufficient to pass the land itself, "for what is the land but the profits thereof? for thereby vesture, herbage, trees, mines and all whatsoever parcel of that land doth pass." But the grant of a particular profit, as the vesture or herbage of the land, or the corn, grass, underwood and the like presumptively passes only the right of entering upon the land and taking it, and not the land itself. "So if a man grant to another to dig turves in his land and to carry them at his will and pleasure, the land shall not pass, because but part of the profit is given" (q).—“ A grant of the exclusive use of land is a grant of the land" (r). So the exclusive use

(k) Co. Lit. 121 b; Buck v. Nurton, 1 B. & P. 53; Smith v. Ridgway, L. R. 1 Ex. 331; 35 L. J. Ex. 198.

(7) Plowden, 170, 171, Hill v. Grange; Thomas v. Owen, L. R. 20 Q. B. D. 225; 57 L. J. Q. B. 198; Cuthbert v. Robinson, 51 L. J. C. 238.

(m) Doe v. Lakeman, 2 B. & Ad. 42; Johnson v. Johnson, 56 L. J. C.

Tenement.

Hereditament.

of land for all purposes to which the land is in fact applicable, is presumptive evidence of the entire ownership; as in the case of an exclusive pasturage of sheep upon a mountain sheep walk, upon which no other act of ownership had been exercised (s).

The term "tenement" means primarily whatever may be the subject of tenure; "it includes, not only all corporate inheritances which are or may be holden, but also all inheritances issuing out of any of those inheritances, or annexed to or exerciseable within the same, though they lie not in tenure; as rents, commons, or other profits whatsoever granted out of land" (t). It is used as including separate profits granted out of land in the Statute De Donis; all such profits are within the statute and may be entailed, as a right of hunting and taking game (u). It is used in a similar meaning in the Statute of Frauds, s. 5, prescribing the form of wills (e); also in the Settlement Acts, as a right of pasturing cattle (w), or a right of warren (x); and in the Acts relating to the qualification of parliamentary electors, as the tolls of a bridge or ferry (y). -The word " tenement" is also used in a popular sense for a dwelling house or building, and may be so taken in construing Acts of Parliament (≈).

"An hereditament is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal or mixed" (a).—

(s) Jones v. Richard, 5 A. & E.

413.

(t) Co. Lit. 6 a; 19 b; Dawson v. Robins, L. R. 2 C. P. D. 38; 46 L. J. C. P. 62.

(u) Co. Lit. 19 b; Moore v. Plymouth, 7 Taunt. 614.

(v) Habergham v. Vincent, 2 Ves. jun. 232.

(w) The King v. Tolpuddle, 4 T. R. 671.

(x) The King v. Piddletrenthide, 3 T. R. 772; Beauchamp v. Winn,

L. R. 6 H. L. 242; 38 L. J. C. 556.

(y) Wadmore v. Dear, L. R. 7 C. P. 224; 41 L. J. C. P. 49.

(z) Dashwood v. Ayles, L. R. 16 Q. B. D. 301; 55 L. J. Q. B. 8; Yorkshire Ins. Co. v. Clayton, L. R. 8 Q. B. D. 423; 51 L. J. Q. B. 82.

(a) Lit. s. 9; Co. Lit. 6 a; Lloyd v. Jones, 6 C. B. 81; Cockburn, C. J. The Queen v. Cambrian Ry., L. R. 6 Q. B. 427; 40 L. J. Q. B. 169.

Things are distinguished as corporeal and incorporeal according as they are capable or incapable of actual possession. The corporeal include land itself and all parts of land that are capable of separate possession, as the surface and substratum. The incorporeal include all uses and profits of land which may be held and enjoyed as separate subjects of property, while the land itself remains in the possession of another. "Incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities and rents" (b).

estates.

The terms lands, tenements, hereditaments, and other Reversionary general words descriptive of the subject of property, serve also to pass all estates and interests in the property so described, whether in possession or reversion. Thus by a grant of "lands and tenements," a reversion or remainder which the grantor has in land, or in rent issuing out of land, will pass. So, "if a man has a reversion in a mill and grants 'all his mill,' the reversion will pass." "And if land, be known by the name of a house, then the reversion. of the same land may pass by the name of the house. And if six acres are known by the name of a manor, then the reversion of them may pass by the name of the manor" (e).

Name.

Land is usually identified in a deed or instrument by Identification the proper name, by which it is known. There is no ex- of land. clusive property in the use of a name for a house or land; nor are there any means of preventing the mere use of the same name by others (d). The naming of streets and numbering of houses in the metropolis is regulated by the provisions of the Metropolis Local Management Act, giving authority for that purpose to the Metropolitan Board of Works (e).-Land is sometimes described by reference to Occupation.

(b) 2 Blackst. Com. 20.

(c) Perkins, ss. 114, 116, 540.

(d) Day v. Brownrigg, L. R. 10 C. D. 294; 48 L. J. C. 173.

(e) 18 & 19 Vict. c. 120, s. 141.