1. HAVING treated of injuries to the person or body, and to character or reputation, we now proceed to the remaining class of private wrongs-wrongs to property. These are not only in point of fact more numerous and frequent than the others, but in nature they are far more various and complicated. For this difference the reasons are very obvious. A bodily injury partakes of the simplicity of the subject which it affects. So character or reputation is in nature one, and libel or slander (including the kindred wrong of malicious prosecution) is accordingly the only form of injury to which it is liable. But property is of various kinds; such as real and personal, absolute and qualified, perpetual and temporary; and for this cause alone the wrongs committed against property must be correspondingly various. (a) But, in addi

(a) In reference to the fact, that injuries to the person and to real and personal property frequently grow out of one and the same occurrence, it is said, “injuries arising from keeping mischievous animals, and from public nuisances, also frequently affect personal property; and on the other hand, many of the wrongs affecting personal property may also affect persons, as negligence in riding horses, and driving carriages," &c. 1 Chit. Pl. 137, n.

tion, injuries to property are in themselves of great variety; being committed with or without force, immediately or consequentially, by misfeasance or nonfeasance, by direct invasion of another's possession, or by an unauthorized use of one's own property, causing damage to another. With reference to the injuries themselves, they include disseisin, trespass, nuisance, conversion, waste, fraud, and negligence; and, with reference to the remedies by which such injuries are redressed, the actions of ejectment, trespass, trover, case, and waste. The former of these modes of classification is the one adopted in the present work. The injury is treated as the principal-the action as only the accessory or incident. Thus we treat, not of the action of trespass, and therein of the wrongs for which such action may be brought, but of the injury of trespass, and therein, incidentally, of the action which may be brought for such injury. So we treat of conversion as another injury to property, involving a consideration of trover, the appropriate remedy therefor; and not of trover, as including the wrong for which it is made by law the peculiar remedy.

2. As already suggested, injuries to property are of various kinds, and, in treating of them as injuries and not merely as the subjects of special actions or remedies, it is somewhat difficult to decide upon the most natural and intelligible arrangement and classification. It will be seen that a twofold system has been adopted; depending, in part, upon the comprehensiveness of the injury, as a component part of the general subject of torts or wrongs, and therefore a natural sequel to the second chapter of this work, which treated of wrongs and remedies, generally; and in part upon the consideration, whether the injury in question may be done to property of any kind, or whether it is restricted to a particular description of property, the former being considered before the latter. Upon these grounds, it will be seen that, first in order among specific injuries to property, we treat of nuisance, the very name of which imports the generality of

its application, being in fact but another term for wrong or injury. And for the other reason suggested, we treat of trespass, which is a wrong alike to real and personal property, before conversion, which applies to personal property alone.

3. But, in advance of the whole subject of this class of injuries, it is necessary to state some general principles in relation to property itself, and the elements or incidents involved in those wrongs committed against it which the law will notice or redress. Our plan does not involve any minute or extended discrimination between the different kinds of property, although those distinctions often determine the legal character of particular injuries, and more especially of the various remedies therefor. In other words, throughout the whole course of the work, it is assumed and taken for granted, that real estate and personal estate, for example, are entirely different subjects of ownership; and that an incorporeal right or privilege connected with land is in nature different from the land itself; and these differences are no further formally defined or explained, than is necessary in stating the principles of law which govern wrongs and remedies. (a) Upon the general subject of property, therefore, it is sufficient for our purpose to say, that property is the right and interest which one man has in things, to the exclusion of others; including, not only the right to possess and use, but also to dispose of them. And, with reference to the great divisions of property into real and personal, that "things real are such as are permanent, fixed and immovable, which cannot be carried out of their place; as lands and tenements; things personal are goods, money, and all other movables; which may attend the owner's person wherever he thinks proper to go. Land comprehends all

(a) It will be seen, with some few exceptions, founded on technical grounds, which affect the remedy rather than the right, that the law of torts is substantially the same in reference to all kinds of property.

things of a permanent, substantial nature. Tenement is a word of still greater extent; and though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it 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. Thus liberum tenementum, frank-tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like. But an hereditament includes not only lands and tenements, but whatsoever may be inherited, (a) be it corporeal or incorporeal, real, personal, or mixed." And it may be added, with respect to the great, subordinate classification of real property itself, that corporeal property consists of "houses, lands, and every other visible, tangible, and immovable property." Incorporeal property is "a property which cannot in general be touched, and has no corpus; such as rights of common, or rights of way, and other easements, and rights which, though they may be enjoyed in, upon, over, or relating to land or other corporeal property, yet in consideration of law constitute no right to the land itself." 2

4. There is, however, in addition to property distinctly real or distinctly personal, an intermediate kind, partaking somewhat of both, which demands a brief preliminary notice, with reference to the injuries of which it may be the subject.

5. Under this head may be classed, in the first place, fixtures. Fixture is said to be a term in general denoting the very reverse of the name. It is something not originally constructed as part of a building, but formerly a movable chattel, and afterwards annexed to the building or land for the more convenient enjoyment thereof, and which, at the

1 2 Bl. Com. 16.

21 Chit. Gen. Prac. 5.

(a) Meaning, whatever descends to the heir, instead of passing to the executor or administrator.

will of the owner, is at all times readily capable of being removed, though at the time annexed.1 So fixtures are defined, as "things fixed in a greater or less degree to the realty."2 Or (rather with reference to the privilege connected with them than the things themselves) "the right of severance of chattels attached to the soil, and not part of the freehold."3 Conformably with either of these definitions, until actually removed, a fixture is a part of the freehold; though, when lawfully severed, it becomes personal property, and may be sued for in replevin. And, in general,

to constitute a fixture, there must be a complete annexation to the soil. This rule, however, does not apply to the constituent and subordinate parts of a dwelling-house, such as doors, blinds, and shutters, which, though even temporarily detached, are held to be parts of the realty."

6. The question of fixtures is commonly said to arise in three cases. 1. Between heir and executor. That is, when the owner of real estate dies, the question is, whether things attached to the land shall pass with, or as a part of it, to the heir, or as personal property to the executor. 2. Upon the death of a tenant for life, by whom erections have been made, between his executor and the remainder-man or reversioner. 3. Between landlord and tenant; which relation has given rise to most of the cases decided upon the subject; the privilege of removal being more liberally construed in favor of a tenant than in any other instance. (a) And, with reference to the relative rights of landlord and tenant upon this subject, it may be stated, in general, that a tenant may remove implements of trade, such as furnaces, kettles, or boilers; machinery, as a steam-engine, pump, or post-windmill; buildings for trade, if this is the primary

11 Chit. Gen. Prac. 161.

2 2 Kent, 344, n.

Horsfall v. Key, 17 L. J. Exch. 266. 1 Hill. Real Prop. 19.

5 Heaton v. Findlay, 12 Penn. 304. 6 Amos on Fixt. 5, 274, and seq. 7 Winslow v. Merchants', &c. 4 Met. 314.

(a) See Landlord.