this nomenclature is, it points to a fundamental distinction between two classes of rights in rem which it is convenient to take at the outset of a systematic discussion of the law of land. The distinction is between rights over land which entitle their possessor to speak of the thing as his own, and rights over land which is in ordinary language the property of another. It will be sufficient to style the former rights of ownership, the latter rights in alieno solo.

The word 'ownership' is here used as applicable to that class of rights which entitle the person having them to speak of the subject of the rights as his own. The great characteristic of these rights, according to Mr. Austin, is that the person having them may put the thing which is the subject of the right to uses which, though not unlimited (for no rights of user are wholly unlimited), are yet indefinite1. Generally speaking, and within limitations more or less wide, tenant in fee, tenant for life, tenant for years can use the thing which is the subject of the right as he pleases -can do what he will with his own.

2

(10) Opposite to these rights of indefinite user is the class of rights the very essence of which consists in the fact that the person having the right can only put the land which is the subject of it to uses of a strictly defined and limited character3. A person who has a right of way over his neighbour's land can only use the land for the purpose of crossing it on foot or with

classification of rights followed to a great extent the masterly Analysis of the Law' of Sir Matthew Hale.

1 See Austin, lect. xlvii, xlviii. For the present I mean by property or dominion every right in and over a thing, which is indefinite in user, as distinguished from servitus.' ii. p. 821.

2 I do not forget that in common parlance we distinguish between tenant for years and the freeholder by saying that the former has the pos session or occupation of the land, and that the latter only is the owner. But it is impossible to attempt to invest any word in common use with a technical meaning without running counter in some instances to popular usage. At all events a tenant-farmer talks of my farm,' and has the exclusive right of possession.

3 See Austin, lect. xlix.

horses or cattle, according to the nature of the right, which depends on the terms of the original grant by which it has been created, or on the extent to which the user has, as a matter of fact, been enjoyed for the time required by law to create the right. The rights which the creditor has under certain circumstances over his debtor's land may also be referred to the class of rights in alieno solo.

(11) These rights in alieno solo comprise a large portion of the rights called by Blackstone incorporeal hereditaments1. In fact the classes of rights in alieno solo styled easements and profits, marked Incorporeal hereditaments B, together with those

1 The division of hereditaments into corporeal and incorporeal, though deeply rooted in our legal phraseology, is most unfortunate and misleading. The confusion is inherited from the Roman lawyers (see Justinian, Inst. ii. tit. 2), but has been made worse confounded by our own authorities. The Romans, misled by the double sense of res, unhappily distinguished res corporales and res incorporales, the former being things 'quae tangi possunt, veluti aurum, vestis,' the latter mere rights, 'quae in jure consistunt.' It is obvious that this is mere confusion, the two ideas not being in pari materia, or capable of being brought under one class, or of forming opposite members of a division. Following the Romans, our lawyers distinguished between hereditaments as meaning the actual corporeal land itself, and another kind of hereditaments as not being the land itself but 'the rights annexed to or issuing out of the land.' A moment's reflection is sufficient to show that the distinction is untenable. The lawyer has nothing whatever to do with the material corporeal land, except so far as it is the subject of rights. It is the distinction between different classes of rights, and not between land on the one side and rights on the other, that he is concerned with. In such phrases as the land descends to the heir,' what is meant is, not that something happens to the land itself, but that a particular class of the ancestor's rights in relation to the land descends to the heir. The names corporeal and incorporeal' are most unfortunate, because if by 'corporeal' is meant 'relating to land,' then a large class of incorporeal hereditaments are also entitled to the name; if by 'incorporeal' is meant that they are mere rights, then all hereditaments are incorporeal, because the lawyer is only concerned with different classes of rights. In reality however it appears that the names point to different classes of rights, as indicated in the Table; and in fact, Stephen in his edition of Blackstone, 5th ed., vol. i. p. 656, almost confines incorporeal hereditaments to jura in alieno solo. See Austin, ii. pp. 707, 708.

marked in the Table as Incorporeal hereditaments A, seem to constitute the class of rights which Blackstone designates by that name.

(12) Taking incorporeal hereditaments in the narrower sense, as equivalent to the classes of rights in alieno solo named easements and profits, the principal characteristics of this class of rights have already been discussed1. The principal rights recognised by the law as easements properly so called are rights of way, i. e. of going over the land of another on foot, on horseback, or with carriages or cattle, in a certain line, or for certain purposes; water-courses, for example, where a person has the right to divert a flow of water to which, except for this special right, the owner of the praedium serviens would be entitled; the right to discharge water or other matter upon a neighbour's house or land 2; the right to restrain a use of land which obstructs the access of light and air to an 'ancient' window.

(13) Of profits, the principal are rights of common of various kinds, which have already been sufficiently dealt with; rents. (the right to a rent issuing out of the land, unconnected with the relation of landlord and tenant) may be classed under the same head; as also might tithes have been before the Act for their commutation (6 and 7 Will. IV, c. 71).

(14) It appears to be more accurate to class creditors' rights under the head of rights in alieno solo; though in the earlier stages of our law, as has been seen above, the tendency in the case of mortgages was to make the right of the creditor after default absolute. As legal ideas progress and become more refined, the notion that the land is only a security for the debt comes into prominence, and regulates the real rights of the

1 See above, Chap. III. § 18.

2Ut stillicidium vel flumen recipiat quis in aedes suas vel in aream, vel non recipiat.' Just. Inst. ii. tit. iii. § 1.

3 See above, Chap. III. § 18 (2). 4 As to rents, see above, p. 204.

parties, and the creditor is reduced to his true position of having simply a right in alieno solo 1.

(15)-(18) The distinctions resting upon the mode of devolution of rights over land, or between land the subject of tenure properly so called (15) and chattels real (16), the historical distinction between freehold (17) and copyhold (18), and between the various kinds of freeholds resting on the differences in the services due from the tenant to his lord, have been sufficiently explained in the preceding pages.

§ 2. Rights over Things Real classified in respect of their

duration.

The conception of an estate' in lands is a peculiar characteristic of English law. It is regarded, as has been seen, as an interest falling short of complete ownership, but capable of differences in extent or duration. Thus where an interest is given to A for life, and after his death to B for life, and after his death to C in fee, all these interests are regarded as estates, varying in duration or extent, and in the time of their coming into possession or enjoyment 5. The interest or right passes at once to the successive grantees. The grantor is regarded, not as parting with the whole ownership to A, with a proviso that after A's death it is to go to B, and after B's death to C, but as carving out of his estate two smaller interests or estates, and then as having still the fee simple or inheritance to give away, the grant of which exhausts all the interest in the lands which he has to bestow, which yet does not amount to the complete ownership of the land. Thus the fee simple is regarded as the largest estate― |

6 See above, p. 61, and Austin's Jurisprudence, ii. p. 866.

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