Incorporeal Hereditaments

THINGS real consist of lands, tenements, and hereditaments. The latter is a word almost as comprehensive as property, for it means, any thing capable of being inherited, be it corporeal or incorporeal, real, personal, or mixed.¹ A tenement comprises every thing which may be held, so as to create a tenancy, in the feudal sense of the word.² Corporeal hereditaments are confined to land, which, according to Lord Coke,³ includes not only the ground or soil, but every thing which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hand of man, as houses, and other buildings; and which has an indefinite extent, upwards as well as downwards, so as to include every thing terrestrial, under it or over it.⁴

Incorporeal tenements and hereditaments comprise certain inheritable rights, which are not, strictly speaking, of a corporeal nature, or land, although they are, by their own nature, or by use, annexed to corporeal inheritances, and are rights issuing out of them, or concern them. They pass by deed, without livery, because they are not tangible rights.⁵ These distinctions were well known to the civil law, and are clearly defined in the Institutes. They have their foundation in the nature of things, and very material legal consequences flow from them in practical jurisprudence. Res corporales sunt quae sua natura tangi possunt, veluti fundus; incorporales sunt quae tangi non possunt et in jure consistunt, sicut usus fructus, usus, etc.⁶

The incorporeal hereditaments which subsist by our law are fewer than those known and recognized by the English law. We have no such rights as advowsons, tithes, dignities, and franchises of the chace; and those titles require complicated regulations, and have been a fruitful source of discussion. The most litigious cases in the Exchequer Reports are those relating to tithes; and it is a great relief to the labors of the student, and a greater one to the duties of the courts, and infinitely more so to the agricultural interests of the state, that the doctrine of tithes is unknown to our law.

The incorporeal rights, which I shall now consider, are, 1. Commons; 2. Ways, easements, and aquatic rights; 3. Offices; 4. Franchises; 5. Annuities; and 6. Rents.

The right of common is a right, which one man has in the lands of another. The object is, to pasture his cattle, or provide necessary fuel for his family, or for repairing his implements of husbandry.⁷

This right was intended, in early ages, for the encouragement of agriculture, and existed principally between the owner of a manor, and his feudal tenants. “By the ancient common law,” said Lord Coke, when commenting upon the statute of Merton,⁸ if a lord of a manor enfeoffed others of some parcels of arable land, the feoffees should have common appendant in the waste ground of the manor, for two causes: (1.) As incident to the feoffment, for the feoffee could not plow and manure his ground without beasts, and they could not be sustained without pasture; and, by consequence, the tenant shall have common in the wastes of the manor for his beasts of the plow; and this was the beginning of common appendant. (2.) The other reason was, for maintenance and advancement of agriculture, which was much favored in law.” The policy of the old law in favor of common of pasture, and of estovers, as being conducive to improvement in agriculture, has entirely changed, or become obsolete; and this incorporeal right is now found to be an encumbrance rather than an advantage. The right of common is little known or used in this country, and probably does not exist in any of the northern or western parts of the United States, which have been settled since the revolution. The Ch. J. of Pennsylvania, while he admitted that a right of common was an estate well known in the law, declared that he knew of very few instances of rights of common. But the right is still known and enjoyed, and has been frequently a subject of litigation, in some parts of this state; and it is interesting to perceive the nice distinctions, and the clear and accurate sense of justice, which arose and were applied to this head of the law.⁹

(1.) Of common of pasture and of estovers.

Common of pasture was known as common of pasture appendant, and common of pasture appurtenant. The first, or common appendant, is founded on prescription, and is regularly annexed to arable land. It authorized the owner or occupier of arable land to put. commonable beasts upon the waste grounds of the manor. from the necessity of the case, and to encourage agriculture.. The tenant was limited to such beasts as were levant and couchant on his estate, because such cattle only were wanted to plow and manure his land. It was deemed an incident to a grant of land, as of common right, and to enable the tenant to use his plow land. Common appurtenant may be annexed to any kind of land, and may be created by grant, as well as prescription. It is allowed the owner to put in other beasts than such as plow or manure the land; and, not being founded in necessity, like the other right, as to commonable beasts, was not favored in the law.¹⁰

The law concerning common appendant received great discussion and consideration, in Bennett v. Reeve, in 1740.¹¹ It was admitted to he the settled law, that common appendant belonged only to arable land, and could not be severed from it; and that if the land be divided ever so often, every little parcel was entitled to common appendant, but only for commonable cattle, or such as were necessary to plow and manure the tenant’s arable land. The Court of C. B., after two arguments, rejected the claim of a tenant, who, by the process of subdivision, claimed only a yard of land, to a right, of common for sixty-four sheep. He was entitled only to a right of common for such cattle as were wanted to plow and manure his yard of land, and in this way the court brought his claim within reasonable limits.

Common of pasture, whether appendant or appurtenant, might be apportioned upon the alienation of the land to which the common belonged, because it was founded in necessity and common right. “God forbid,” said Lord Coke,¹² “that the law should not be so, for otherwise many commons in England would be avoided and lost.” Thus, in Tilde’s Case,¹³ he being seized of forty acres of land, to which a right of common of pasture on two hundred adjoining acres for commonable cattle was appurtenant, sold five acres. It was held, that the alienee had a right of common appurtenant to the five acres, and that the alienation of part of the land did not destroy the right of common either of the alienor or alienee, but each retained a right of common proportioned to their estates. The warm language of Coke shows the deep conviction of that age, that these rights of common were indispensable to the tillage of the English tenantry. But the change of manners and property, and the condition of society in this country, is so great, that the whole of this law commonage is descending fast into oblivion, together with the memory of all the talent and learning which were bestowed upon it by the ancient lawyers.

There have been several cases on the subject of the right of common of pasture, and of estovers, discussed in the Supreme Court of this state, and the principles to be deduced from the ancient decisions were fully and accurately considered.

The first case I allude to was that of Watts v. Coffin,¹⁴ which was upon a lease executed before the revolutionary war, in which, by express covenant, the grantor had conveyed to the lessee in fee common of pasture, and reasonable estovers, out of the woods of the manor of Rensselaerwick, at Claverack. The grantor had cultivated, or, in ancient language, approved the manor lands, by leasing, so as to leave no common of estovers, or of pasture, and in that way had actually destroyed the exercise of the right under the covenant. The only question was, as to the remedy; and it was held, that the tenant could not set off that claim under the covenant, against the rent due upon the perpetual lease, but must resort to his covenant if any remedy existed. It was, however, left undecided, whether any right of common existed after the waste and unappropriated parts of Claverack had disappeared by the settlement and improvement of the country.

In England, before the statute of Merton, 20 Hen. III it was supposed, that the lord could not improve any part of his waste grounds, however extensive they might be, provided another person had a grant of common of pasture therein, because the common issued out of the whole waste, and every part of it. But that statute, and the statute of Westminster 2. 13 Edw. I allowed him to do it if he left sufficient common of pasture for the tenants, and this was all that any tenant could, in common justice, have required, before the provision of the statute. It. is now well settled in the English law, that the owner of lands in which another has a right of common, may improve and enclose part of the common, leaving a sufficiency of common for the tenant. In those cases, in which a right of common of pasture exists here, the right of the owner of the soil to improve, would seem necessarily to he subject to the same limitation, and to he exercised consistently with the preservation of a right of common.

The next case in which this right of common was discussed, was that of Livingston v. Ten Broeck.¹⁵ In that case, an ancient deed had conveyed a large tract of land in the manor of Livingston, with a right of common of pasture, and of estovers; and the court, in the decision of that case, recognized several principles of ancient law applicable to this right of common.

Thus if a person seized of part of the land subject to common, should purchase part of the adjoining land entitled to common, here would bean unity of title in one and the same person to part of the land entitled to a privilege of common, and to part of the land charged with that privilege, or out of which the common was to be taken. This unity of title extinguished his right of common, and upon this principle, that if it was to continue in his hands, his interest would induce him to take common for the land he purchased out of that part of the manor which he did not own, in order to relieve his own land of the burden, and to cast it upon his neighbor. This temptation to abuse and fraud, the cautious policy of the old law would not permit. So, also, if a man, having common in a large field owned by several persons, purchased an acre from one of them, his right of common was extinguished upon the same principle. This was the rule declared in Rotherham v. Green,¹⁶ and the right of common became extinct equally in either case, by aliening or releasing part of the land entitled to common, and by purchasing part of the land charged with it. If it were otherwise, the tenant of the residue might be charged with the burden of the whole common. The rule is, that the right of the common shall not be so changed or modified by the act of the parties, as to increase, or even to create the temptation to increase, the charge upon the land out of which common is to be taken. An extinguishment of the right as to a portion of the land charged, is an extinguishment of the whole; and this principle of ancient policy was ably illustrated in the case to which I have referred.

In Leyman v. Abeel,¹⁷ another branch of this same subject was brought under the consideration of the Supreme Court.

It was held, that incorporeal hereditaments descend by inheritance as real estate; and in that case, a right of common of estovers which had descended to children, was held to be incapable of division between them, and this upon an old and just principle of law, to prevent the land from being doubly or trebly charged. In accordance with the case of the Earl of Huntington v. Lord Mountjoy,¹⁸ it was held, that a common in gross and uncertain, as the right to cut wood, and dig turf, might be assigned, but it could not be aliened in such a way as to give the entire right to several persons, to be enjoyed by them separately. Lord Coke said,¹⁹ that if such a right of common descended to coparceners, as it was not partible, the eldest should have the right, and the rest should have contribution, or an allowance of the value in some other part of the inheritance. But if the ancestor left no inheritance from which to make compensation or recompense to the younger coparceners, one parcener was to have it for a time, and the other for the like time, so that no prejudice should accrue to the owner of the soil. This mode of enjoyment, alternately, or in succession, was carried, in the ancient law, to a ludicrous extent. Thus, says Coke, according to the rules to be found in Bracton, and Britton, and Fleta, in the case of a common of piscary descending to two or more parceners, the one may have one fish, and the other the second; the one may have the first draft, and the other the second. If it be of a mill, the one was to have the mill for a time, and the other for the like time, or the one the first toll dish, and the other the second.

In the last case I have referred to, it was held, that this law was changed under the operation of our statute of descents, and that if such a right of common descended to several heirs as tenants in common, or parceners, it could not be divided, but there must be a joint enjoyment. They may jointly alien, but one tenant cannot convey alone, nor can the eldest heir take the whole of this indivisible right of common of estovers, and make recompense. It is a joint right, to be enjoyed jointly by the heirs, or their assignees; and upon the principle, that the land charged with the right is not to have an increase of burden by the multiplication of claimants.

The right of common may be controlled by custom. It may be held subservient to a distinct right in the lord of the manor, founded on immemorial usage, to dig in the soil, without leaving sufficient herbage for the commoners.²⁰

(2.) Of common of piscary.

This is said to be a liberty, or right of fishery in the water covering the soil of another person, or. in a river running through another man’s land.²¹ A common of fishery is not an exclusive right, but one enjoyed in common with certain other persons; and Lord Holt said it was to be resembled to the case of other common.²² The books speak likewise of a free fishery, as being a franchise in the hands of a subject, existing by grant or prescription, distinct from an ownership in the soil. It is an exclusive right, and applies to a public navigable river, without any right in the soil. There is, also, a several fishery, which is a private exclusive right of fishery in a navigable river or arm of the sea, accompanied with the ownership of the soil. It is a grant along with the soil, though the soil may be granted without this several fishery; and it has likewise been strongly asserted and maintained, that a several fishery may exist without the ownership of the soil.²³

But these distinctions between common of piscary, free fishery, and several fishery, seem to be quite unsettled in the books;²⁴ and the authorities referred to by Mr. Hargrave²⁵ throw embarrassment in the way of the attempt to mark, with precision, the line of discrimination between these several rights of fishery. In a late case,²⁶ the judges took a distinction between a common fishery, (commune piscarium,) which may mean for all mankind, as in the sea, and a common of fishery, (communiam piscariae,) which is a right, in common with certain other persons, in a particular stream; and the text writers were deemed to have spoken inaccurately when they confounded the distinction. The more easy and intelligible arrangement of the subject would seem to be, to divide the right of fishing into a right common to all, and a right exclusively in one or a few individuals.

It was a settled principle of the common law, that the owners of lands on the banks of fresh water rivers above the ebbing and flowing of the tide, had the exclusive right of fishing, as well as the right of property opposite to their respective lands ad filum medium aquae; and where the lands on each side of the river belonged to the same person, he had the same exclusive right of fishery in the whole river, so far as his lands extended along the same. The right exists in rivers of that description, though they may be of the first magnitude, and navigable for rafts and boats, but they are subjected to the jus publicum, as a common highway or easement, for many navigable purposes. The common law, while it acknowledged and protected the right of the owners of the adjacent lands to the soil and water of the river, rendered that right subordinate to the public convenience, and all erections and impediments made hy the owners to the obstruction of the free use of the river as a highway for boats and rafts, are deemed nuisances.

The right of private property in rivers was recognized at common law in the earliest ages, and it has been uniformly admitted down to this day.²⁷ The law was laid down very clearly and emphatically in the case of The river Banne, in Ireland, ²⁸ which is regarded as a leading case, and a sound authority, and the doctrine of that case was, that a subject might have a several freehold interest in a navigable river or tide water, by special grant from the crown, but not otherwise; and that without such grant, or prescription which is evidence of a grant, the right of fishing was common. On the other hand, it was held, that in rivers not navigable, (and in the common law sense of the term, those only were deemed navigable in which the tide ebbed and flowed,) the owners of the soil on each side had the interest, and the right of fishery; and it was an exclusive right, and extended to the center of the stream opposite their respective lands. This case was followed by that of Carter v. Murcot,²⁹ in which the K. B. recognized that doctrine in its fullest extent; and Sir Matthew Hale, in his treatise De Jure Maris,³⁰ has not only laid down the same propositions, but he has discussed the subject with great and accurate learning, and it has become a text book of the highest authority.

This private right of fishery is confined to fresh water rivers, unless a special grant or prescription be shown; and the right of fishing in the sea, and in the bays and arms of the sea, and in navigable or tide waters, under the free and masculine genius of the English common law, is a right public and common to every person; and if any individual will appropriate an exclusive privilege in navigable waters, and arms of the sea, he must show it strictly by grant, or prescription.³¹ The common right of fishing in navigable waters, is founded on such plain principles of natural law, that it is considered by many jurists as part of the law of nations. The civil law declared, that the right of fishing in rivers, as well as in the sea, and ports, was common; and in some respects, it went beyond the common law, for it held, that all rivers where the flow of water was perennial, belonged wholly to the public, and carried with it the right of fishery, as well as the public use of the banks.³²

Bracton adopted the doctrine of the civil law, and held,³³ that the right of fishing in rivers, and the use of the banks, was common jure gentium. But it is every where agreed, that this common right is liable to be modified and controlled by the municipal law of the land, and no person has a right to pass over the lands of others in order to get to the water. In Blundel v. Catteral,³⁴ which called forth a very elaborate and learned discussion, the doctrine of the civil law, as stated by Bracton, was disclaimed, and it was held, that the pub[lic] had no common law right of crossing the beach, or sea shore, for the, purpose of bathing in the sea, as against the lord of a manor who was owner of the soil of the shore, and had the exclusive right of fishing therein.

So, also, in France, before their revolution, the right of fishing in navigable, and not navigable rivers, was not common to all the subjects, but belonged to the king, and such individuals as under him possessed jurisdictional rights.³⁵ The Napoleon code was formed upon the ruins of seigneurial and feudal rights, and it is declared, that rivers, and navigable or floatable streams, shores, and land between high and low water mark, were considered as dependencies of the public domain, and that the right of fishing was under the regulation of particular laws.³⁶ It is now understood, that the owners of the lands on rivers not navigable or flotable, (flottables,) have the exclusive right of fishing therein, as well as the exclusive ownership of the soil composing the bed of the river. Though some communes attempted to appropriate that right to themselves, the claim was put down by decrees, and on the principle that the abolition of feudal rights, of which the right of fishing was one, was for the benefit, not of the communes, but of the feudal vassals, who had become free in their persons and property, and that there no longer existed any such seigneurial rights.³⁷

The English doctrine, as to navigable rivers, and the common right as to the use thereof, and as to the right of fishing, as well as the right to the soil, in rivers not navigable, in the common law sense of the term, has been declared to be the law in this, and some other of the United States.³⁸ The legislature of New York, when they re-enacted in 1787, all the British statutes that were deemed applicable to our situation, considered a common of fishery, as an existing right, for they provided the writ of novel disseizin, for the disturbance of it.³⁹ So a franchise of a several fishery, at a particular place in a public river, has been admitted to exist, and an instance of such a grant was mentioned in the case of Stoughton v. Baker.⁴⁰ The statute law of the colony of Massachusetts made some alterations in the common law. Each town might appropriate the right of free fishing in navigable rivers within the town, and the right of free fishing was confined to householders.

The legislature have likewise assumed the regulation of the passage and protection of fish in streams not navigable, in the technical sense; and it is now considered that fisheries are the exclusive right of the owners of the banks of rivers not navigable, unless otherwise appropriated by statute, and that the right, unless secured by a particular grant or prescription, is held subject to legislative control.⁴¹ In Jacobson v. Fountain, and afterwards, in Gould v. James,⁴² it was considered that a person might, by grant or prescription, have an exclusive right of fishery, even in an arm of the sea, or in a navigable river, where the tide ebbed and flowed; and, in New Jersey, the right of several fishery has been attempted to be carried beyond the rule of the common law. The doctrine is asserted, that, in that state, the whole of the soil under its navigable and tide waters, is individual and not public property, and that it passed in fee simple from the original proprietors under the royal patents, to the present occupiers and grantees. The title was, originally, in the king, by right of discovery, according to the public law of Europe; and, it is said, he was competent to convey, and did convey the soil in New Jersey, as well under navigable waters as elsewhere, to the Duke of York, and by him it was conveyed to Sir George Carteret and the representatives of Lord Berkeley, and from them the title passed, and has been regularly transmitted to the present owners of lands on the navigable waters of the state.

Upon that broad foundation it is maintained, that the proprietors of land on rivers and waters, navigable as well as not navigable, have immemorially claimed and exercised the right to the soil, and to a several fishery in all waters within the state in front of their lands and shores, subject, nevertheless, to the jus publicum, or use of the same, as a public highway for all navigable purposes, and also subject to the regulations of the legislature for the passage and protection of fish.⁴³ But whatever force might have been due to such an opinion, if the question was res integra, the law is now declared, after a very profound and exhausting forensic discussion, to be, that there is no several fishery in the navigable waters of New Jersey, but the same is common to all the people of the state.⁴⁴

Though the right of fishery in a navigable river be a common right, the. adjoining proprietors have the exclusive right to draw the seine, and take fish on their own lands; and if an island or a rock, in tide waters, be private property, no person but the owner has the right to use it for the purpose of fishing.⁴⁵ It has been further decided, that though the sea-shore, between high and low water mark, be held by grant as private property, the common right still exists to go there and fish, and even to dig and take shell fish; and if the owner of the soil claims an exclusive right, he must show a prescription for it, controlling the general right at common law.⁴⁶

In Pennsylvania, the English doctrine that no rivers are deemed navigable, so as to give the common right of fishing, except those where the tide ebbs and flows, has been held not to be applicable to the great rivers in that state, and that the owners of land on the banks of such rivers as the Susquehanna and Delaware, for instance, have no exclusive right of fishing in the rivers opposite their respective lands. The right to fisheries, in such rivers, is declared to be vested in the state, and open to all the world;⁴⁷ and a similar exception to the rule of the common law, has been suggested to exist in South Carolina.⁴⁸

The conclusion on this subject is, that a right of fishery in navigable or tide waters, below high-water mark, is a common right; and if one or more. individuals set up an exclusive right to a free or several fishery, it must be clearly shown hy prescription or positive grant. In rivers and streams not navigable as tide waters, the owners of the soil over which they flew bave, at common law, (and which common, law has been generally recognized in these United States,) the exclusive right of fishing each on his own side, unless some other person can show a grant or prescription for a common of piscary, in derogation of the right naturally attached to the ownership of the soil.

The disturbance of a right of common of pasture arises when a person who has no right, interferes by putting in his cattle, or if he has a right to use the land for commonable cattle, by putting in those which are not commonable, or by surcharging the common by putting in more cattle than the pasture will sustain. In these cases, the owner of the soil has his action of trespass, and the commoner his special action upon the case, inasmuch as both the owner of the land, and the owner of the right of common, are injured. The common law gave to the commoner a writ of admeasurement of pasture, under which process a jury, with the sheriff, apportioned the quantity of cattle to the extent of the ground, and the number of proprietors. So, also, if the commoner be disseized, either of the common of pasture, of estovers, or of fishery, he may have a writ of novel disseizin to reinstate himself in the possession. Such injuries are now generally redressed by the more familiar and easy remedy of an action upon the case; and the mention of those old and obsolete actions in the revised act of New York, in 1787,⁴⁹ arose from the circumstance that the statute of Westminster 2d, 13 Edw. I was literally transcribed.

II. Of ways, easements, and aquatic rights.

(1.) Of ways.

This incorporeal hereditament is a right of private passage over another man’s ground. It may arise either by grant of the owner of the soil, or by prescription, which supposes a grant, or from necessity. If it be a freehold right, it must be created by deed, though it be only an easement upon the land of another, and not an interest in the land itself.⁵⁰

If it be a right of way in gross, or a mere personal right, it cannot be assigned to any other person, nor transmitted by descent. It dies with the person, and it is so exclusively personal, that the owner of the right cannot take another person in company with him.⁵¹ But when a right of way is annexed to an estate, it may pass by assignment when the land is sold to which it was annexed as appurtenant. Thus, in the case stated in Staples v. Heydon,⁵² if one be seized of lot A. and lot B., and he used a way from lot A. over lot B., to a mill, or to a river, and he sells lot A. with all ways and easements, the grantee shall have the same privilege of passing over lot B. that the grantor had.

A right of way may arise from necessity in several respects. Thus, if a man sells land to another which is wholly surrounded by his own land, in this case the purchaser is entitled to a right of way over the other’s ground to arrive at his own land. The way is a necessary incident to the grant, and without which the grant would be useless.⁵³ This principle was carried so far, in a modern case,⁵⁴ as to be applied to a trustee selling land he held in trust, and to which there was no access but over the trustee’s own land. The right of way in that case passed of necessity as incidental to the grant, for though he conveyed it in the character of trustee, it could not be intended that he meant to make a void grant, and every deed must be taken most strongly against the grantor. Lord Kenyon said it was impossible to distinguish that from the ordinary case where a man granted a close surrounded by his own land. The general rule is, that when the use of a thing is granted, every thing is granted by which the grantee may have and enjoy such use. If one man gives another a license to lay pipes of lead in his land to convey water to a cistern, he may enter on the land, and dig therein to mend the pipes.⁵⁵ The maxim is, that quando aliquis aliquid concedit, concedere videtur, et id, sine quo res uti non potest.

If a man has several distinct parcels of enclosed land, and he sells all but one surrounded by the others, and to which he has no way or passage except over one of the lots he had sold, it has been made a question, whether he be entitled to a right of way against his own deed, when he has been so improvident as to reserve none. It is said, in Clarke v. Cogge,⁵⁶ that the law reserves to him a right of way in such case from necessity. But the position in that case seems to have been contrary to the doctrine in the prior case of Dell v. Babthorpe,⁵⁷ where it was held, that if a man had a close, and a wood adjoining it, and time out of mind a way had been used over the close to the wood, and he then sells the close to one man, and the wood to another, the grantee of the wood has no right of way over the close, for the grantor had excluded himself, as he had sold the close without reserving such a right; and as he had lost his right he could not communicate any to the grantee of the wood. But in this last case, it did not appear to be necessary to go over the close in question to the wood, and there might have been another way to it; and the weight of authority is, that the grantor has a right of way to his remaining land, in case of necessity, when he cannot otherwise approach his land. The law presumes a right of way reserved, or rather gives a new way, from the necessity of the case, and the new right of way ceases with the necessity for it.⁵⁸ This principle of law has been for a long time recognised.

Thus, in Packer v. Welsted,⁵⁹ decided in the Upper Bench under the protectorate of Cromwell, A. had three parcels of land, and there was a private way out of the first parcel to the second, and out of the two first parcels to the third. B. purchased all these parcels, and then sold the two first to C. There was no way to the land not sold, but through the other two parcels; and the court adjudged, that the way continued from necessity, and that the party was not liable in trespass for using it. So, also, in Dutton v. Tayler,⁶⁰ A. owned two closes, B. and C., and there was no passage to close B. but through close C., and he sold close C., and it was held, upon plea and demurrer, that the right of way still existed from necessity, and that it was not for the public good that the close B. should be left uncultivated. This last case is supposed to be binding; and Lord Kenyon said, in Howton v. Frearson, that he was prepared to submit to the express authority of it, though his reason was not convinced, and he thought there were great difficulties in the question.

But the doctrine of the case of Dutton v. Tayler received confirmation in Buckby v. Coles,⁶¹ where it is decided, that if a person owned close A. and a passage of necessity to it over close B., and he purchased close B., and thereby united in himself the title to both closes, yet if he afterwards sold B. to one person, without any reservation, and then close A. to another person, the purchaser of close A. has a right of way over close B. This case seems to put an end to all doubt as to the existence of a right of way from necessity, even over the land which the claimant of the way had previously sold.

If a right of way be from close A. to close B., and both closes be united in the same person, the right of way, as well as all other subordinate rights and easements, is extinguished by the unity of possession.⁶² But there is a distinction between a right of way existing from necessity, and one merely by way of easement or convenience. The former is not extinguished by the unity of possession, as a right of way to a church or market, or a right to a gutter carried through an adjoining tenement., or to a water course running over the adjoining lands.⁶³ Sergeant Williams⁶⁴ is of opinion, that the right of way, when claimed by necessity, is founded entirely upon grant, and derives its force and origin from it. It is either created by express words, or it is created hy operation of law, as incident to the grant; so that in both cases the grant is the foundation to the title. If this be a sound construction of the rule, then it follows that in the cases I have mentioned, the right of the grantor to a way over the land he has sold to his remaining land, must be founded upon an implied restriction incident to the grant, and that it cannot be supposed the grantor meant to deprive himself of all use of his remaining land. This would be placing the right upon a reasonable foundation, and one consistent with the general principles of law.

There is a temporary right of way over the adjoining land, if the highway be out of repair, or be otherwise impassable, as by a flood. But this right of going upon the adjoining land applies to public and not to private ways.⁶⁵ A person having a right to a private way over another’s land, has no right to go upon the adjoining land, even though the private way be impassable or foundrous, by being overflowed by a river. The reason given is, that the owner of the way may he bound to repair, and the impassable state of the private way may be owing to his own neglect; but if public roads become impassable, it is for the general good that the people should be entitled to pass in another direction. There may be a distinction between a private way arising from necessity, and a private way founded on grant or prescription; and such a distinction was alluded to by one of the Judges in Taylor v. Whitehead. If a person be obliged, of necessity, to go over another’s farm to arrive at the land which the other sold him, and the private way assigned be destroyed by a flood or otherwise, he may, of right, cross the farm on another line, and he is not obliged, at his peril, to keep such a road of necessity in repair. By selling land surrounded with his own, the grantor has bound himself to furnish the purchaser a reasonable passage to it.

The right of way, as to a foot or two path along the banks of navigable rivers, has been a subject of great discussion, and of much regulation in the laws of different nations.

In the civil law, the banks of public rivers and the sea shore were held to be public. Riparum usus publicus est; littorum quoque usus publicus est jure gentium.⁶⁶ The law of nations was here used for natural right, and not international law, in the modern sense of it; and it is stated in the Institutes of Justinian, that all persons have the same liberty to bring their vessels to land, and to fasten ropes to the banks of the river, as they have to navigate the river itself. These liberal doctrines of the Roman law, have beep introduced into the jurisprudence of those nations of Europe which have followed the civil, and made it essentially their municipal law. Thus in Spain, the sea shore is common to the public; and any one may fish, and erect a cottage for shelter. The banks of navigable rivers may also be used to assist navigation.⁶⁷ In the French law, navigable or floatable rivers, as they are termed, have always been regarded as dependencies of the public domain, and the lands on each side subject to the servitude or burden of towing paths for the benefit of the public.⁶⁸

The English law was anciently the same as the Roman law, if we may judge from the authority of Bracton,⁶⁹ who cites the words of the civil law declaring the banks of navigable rivers to be as much for public use as the rivers themselves. So Lord Holt held,⁷⁰ that every man, of common right, was justified in going with horses on the banks of navigable rivers for towing. But Sir Matthew Hale, in his treatise De Jure Maris, and in which he has exhausted the learning concerning public property in the sea and rivers, and collected all the law on the subject, concluded that individuals had a right to a tow path, for towing vessels up and down. rivers, on making a reasonable compensation to the owner of the land for the damage.⁷¹ This condition, which he annexes to the privilege, shows, that in his opinion, there was no such common right in the English law, inasmuch as it depended on private agreement with the owner of the soil.

The point remained in this state of uncertainty, until the case of Ball v. Herbert, in 1789,⁷² brought the whole doctrine into discussion. The case was respecting a claim to tow on the bank of the river Ouze, in Norfolkshire, with men and horses, whenever it was necessary for the purposes of navigation, doing as little damage as possible. It was admitted that the Ouze was a navigable river where the tide ebbed and flowed. The question was, whether at common law, the public had a right to tow vessels on the banks of either side of a navigable river; and it was investigated and argued with great ability. All the cases bearing on the question were collected and reviewed, and the court concluded that there was not, and never had been, any right at common law, for the public to tow on the banks of navigable rivers. The claim was directly contrary to common experience; and it was observed by Lord Kenyon, that the navigators on the Thames were frequently obliged, at several places, to pass from one side of the river to the other, with great inconvenience and delay, because they had no such general right. It was admitted, that on many navigable rivers, there was a custom to tow on the banks;”but the privilege in those cases rested on the special custom, and nut on any common law right. The statutes which have given a right of towing on parts of the Severn, Trent, and Thames, are evidence that no such general right before existed.

(2.) Of easements and aquatic rights.

It is a settled principle in the English law, that the right of soil of owners of land bounded by the sea, or on navigable rivers, where the tide ebbs and flows, extends to highwater mark; and the shore below common, but not extraordinary high-water mark, belongs to the public, and in England the crown, and in this country the people, have the absolute proprietary interest in the same, though it may, by grant or prescription, become private property. But grants of land, bounded on rivers, or upon the margins of the same, or along the same, above tide water, carry the exclusive right and title of the grantee to the center of the stream; and the public, in cases where the river is navigable for boats and rafts, have an easement therein, or a right of passage as a public highway. The proprietors of the adjoining banks have a right to use the land and water of the river, as regards the public, in any way not inconsistent with the easement; and neither the state, nor any other individual, has the right to divert the stream, and render it less useful to the owners of the soil. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the owner, in such cases, to the edge of the river. Where a stream is used in a grant as a boundary or monument, it is used as an entirety to the center of it, and to that extent the fee passes prima facie, said the vice chancellor of England,⁷³ the proprietor of each bank of a stream, is the proprietor of half the land covered by the stream. If the same person be owner of the lands on both sides of the river, he owns the whole river to the extent of the length of his lands upon it.

If a fresh water river, running between the lands of separate owners, insensibly gains on one side or the other, the title of each continues to go ad filum medium aquae; but if the alteration be sensibly and suddenly made, the ownership remains according to the former bounds, and if the river should then forsake its channel, and make an entire new one in the lands of the owner on one side, he will become owner of the whole river, so far as it is enclosed by his land. This is the general doctrine as to alluvions. If soil be formed out of the sea or a river, by slow and imperceptible alluvion and accretion, it belongs to the owner of the adjoining land.⁷⁴ Islands situated in a river do not form any exception to this general principle, and they belong to the person who owns the land on that side of the river to which they are nearest, though, if they be situated in the middle of the river, they would belong in severalty to the owner on each side, according to the original dividing line, or filum aquae, continued on from the place where the waters begin to divide.⁷⁵

This principle of the common law has been recognized, and prevails in the states of Maine, New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Maryland and Virginia.⁷⁶ In Massachusetts, some alterations in the common law have been made by statute; for by the colony ordinance of 1641, and by usage arising therefrom, the proprietors of the adjoining land, on bays and arms of the sea, and other places where the tide ebbs and flows, go to low-water mark, subject to the public easement, and not exceeding one hundred rods below high water mark. According to judicial constructions of that ordinance, the flats between high and low water mark may be occupied by wharves and other erections, provided the easement or passage be not too much obstructed.⁷⁷

The common law, as we have already seen, has been rejected, or deemed inapplicable to the great inland rivers in Pennsylvania, and the owners of the land on the banks of them do not, as of course, acquire a right to the soil covered by the waters of the rivers, but the soil and waters of the rivers, with the rights and privileges incident thereto, remain in the public.⁷⁸ In South Carolina the doctrine of the common law on this subject has been held to he inapplicable; but as the common law still applies to rivers capable of being made navigable, and which possesses obstructions to the passage of boats of every description, and as the adjoining owners in such cases go ad filum aquae,⁷⁹ the modifications which the common law has undergone do not seem to be very material.

The sea shore, according to Lord Hale’s definition, is the ground between the ordinary high and low water mark, and it prima facie, and of common right, belongs to the king, but may be vested in a subject by prescription, or by grant, as if the king grants a manor cum littore maris eidem adjacente, the shore itself will pass.⁸⁰ But it was said by the Ch. J., in Arnold v. Mundy,⁸¹ that a grant bounded upon navigable water, where the tide ebbs and flows, extended to high-water mark when the tide was high, and to low-water mark when the tide was low, and that the intermediate space between high-water and low-water mark, might be reclaimed, and exclusively appropriated by the owner of the adjacent land, to wharves, buildings, and other erections. There may be a moveable freehold, as is stated by Lord Coke;⁸² and if a grant was made of the seashore, the freehold would shift as the sea receded or encroached, and it would take all the soil that should, from time to time, be within high and low water mark.⁸³

But I should apprehend the better opinion to be, that in ordinary grants of land bounded on the sea, or a river, the boundary limit must be stable, either at ordinary high or low-water mark, and not subject to alternate change with the flux and reflex of the tide. In Handley’s Lessee v. Anthony,⁸⁴ it was considered as a general, natural, and convenient rule of construction in public grants of territory bounded by a river, instead of being bounded by the bank or shore, to take the permanent river for the boundary line, and that would, of course, carry, the line to ordinary low-water mark, and include the land left diurnally bare by the receding of the water. The rule was, in that case, applied to a country or state bounded by a river; and the English common law does not allow the riparian owner, under the grant oft he sovereign, of lands bounded on tide waters, to go beyond ordinary high-water mark.⁸⁵ Such grants are constructed most favorably for the king, and against the grantee; and Sir William Scott has vindicated ⁸⁶such a rule of construction as founded in wise policy, for grants from the crown are made by a trustee for the public, and no alienation should be presumed, that was not clearly and indisputably expressed.

The law with respect to public highways, and to fresh water rivers, is the same, and the analogy perfect, as concerns the right of soil. The owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public. Being owners of the soil, they have a right to all ordinary remedies for the freehold. They may maintain an action of ejectment for encroachments upon the road, or an assize if disseized of it, or trespass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road, and left there for shade or ornament. The freehold, and all profits, belong to the owners of the adjoining lands. They may carry water in pipes under the highway, and have every use and remedy that is consistent with the servitude or easement of a way over it, and with police regulations.⁸⁷

The established inference of law is, that a conveyance of land bounded on a public highway, carries with it the fee to the center of the road as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would be contrary to universal practice; and it was said, in Peck v. Smith, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration to sustain such an inference; and it may be considered as the just and settled doctrine, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the center of it.

The civil law treated very extensively of these incorporeal rights annexed to land; and what in them common law are termed easements, went under the general denomination of servitudes, because they were charges on one estate for the benefit of another. Toullier defines servitudes to be real rights, jura in re, existing in the property of another. By virtue of such a right, the proprietor oft he estate charged is bound to permit, or not to do, certain acts in relation to his estate, for the utility or accommodation of a third person, or of the possessor of an adjoining estate. The term is a metaphorical expression, borrowed from personal servitude, but the charge is entirely attached to real estates, and not to the person. Servitutum ea natura est, ut aliquid patiatur aut non faciat. Servitutum non hominem debere sed rem.⁸⁸

The regulations in the civil law on the subject of urban and rural servitudes, were just and equitable, and the provisions made to define and protect those rights, were far more minute and precise than those which are to be found on the same subjects in the books of the common law; and it is difficult to solve many questions arising on those rights, without having recourse to the solid and luminous principle of the civil law, which are of permanent and universal application.⁸⁹

In cities where the population is dense, and the buildings compact, a great variety of urban services grow out of the relation of vicinage. There is the right of support, which arises from contract, or prescription which implies a grant. This right is where the owner of a house stipulates to allow his neighbor to rest his timbers on the walls of his house. There is also the servitude of drip, by which one man engages to permit the waters flowing from the roof of his neighbor’s house to fall on his estate. So there is the right of drain, or to convey water in pipes through, or over the estate of another. The right of way may also be attached to a house, entry, gate, well, or city lot, as well as to a country farm. These servitudes or easements must be created by the owner, and one tenant in common cannot establish them upon the common property without the consent of his co-tenant.⁹⁰

The exercise of these servitudes may be limited to certain times. The right of drawing water, for instance, from a neighbor’s well, may be confined to certain hours, or a right of passage may be confined to a part of the day. If there be a party-wall between two houses, and the owner of one of the houses pulls it down, in order to build a new one, and with it he takes down the party-wall belonging equally to him and his neighbor, and erects a new house and a new wall, he is bound, on his part, to pull down the wall and reinstate it in a reasonable time, and with the least inconvenience; anti if the necessity of the reparation of the old wall be established, the neighbor is bound to contribute rateably to the expense of the new wall. But he is not bound to contribute to building the new wall higher than the old one, nor with more costly materials. All such extra expense must be borne exclusively by him who pulls down and rebuilds.⁹¹

If there had been no party-wall, but the walls of the house pulled down stood wholly on its lot, yet if the beams of the other house rested upon the wall pulled down, and had done so for a period sufficient to establish an easement by prescription, the owner of the adjoining house would be entitled to have his beams inserted for a resting place in the new wall. Such an easement is continual, without requiring the constant and immediate act of man; and it is an apparent one, shown by an exterior work; and, consequently, it has the qualities sufficient by the common law, and also deemed in the French law sufficient, to establish an easement by prescription.⁹² It has been held, in England, that the owners of a party-wall, built at joint expense, and standing partly on the land of each, are not tenants in common, but each party continues owner of his land, and has a right to the use of the wall, and a remedy for a disturbance of that right.⁹³

But the most important questions have arisen in respect to the use of running waters, between different proprietors of portions of the same stream; and such questions are daily growing in interest, as the value of water power is more anti more felt in manufacturing establishments.

Every proprietor of lands on the banks of a river hag naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, (currere solebat) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere, is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it.⁹⁴

This is the clear and settled general doctrine on the subject, and all the difficulty that arises consists in the application. The owner must so use and apply the water, as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current.

But de minimis non curat lex, and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect the application of the water by the proprietors below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities to the annoyance of his neighbor.⁹⁵ Pothier lays down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below.⁹⁶ But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes. The just and equitable principle is given in the Roman law: — Sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat.⁹⁷

This natural right to the use of waters, as an incident or particular easement to the land, may be abridged, or enlarged, or modified, by grant or prescription, Though a stream be diminished in quantity, or corrupted in quality, by means of the exercise of certain trades, yet if the occupation of the party so taking or using it, has existed for so long a time as to raise the presumption of a grant, the other party whose land is below, must take the stream subject to such adverse right; and twenty years exclusive enjoyment of the water in any particular manner affords, according to the English law, and the law of New York, Massachusetts, and several other states, presumption of such a grant.⁹⁸ But nothing short of a contract, or of such a time of enjoyment of water diverted from the natural channel, or interrupted by darns, or other obstructions, or materially changed in its descent or character, will justify the owner as against any land owner lower down the stream, to whom such alterations are injurious. In the character of riparian proprietors, persons are entitled to the natural flow of the stream without diminution to their injury, and to them may be applied the observation of Whitlock, J., in Shury v. Piggott,⁹⁹ that a water course begins ex jure naturae, and having taken a course naturally, it cannot be diverted.

But, on the other hand, the owners of artificial works may acquire rights by actual appropriation as against the riparian proprietor, and the extent of the right is to be measured by the extent of the appropriation, and use of the water for a period requisite to establish a conclusive presumption of right. In such a case, the natural right of the riparian proprietor becomes subservient to the acquired right of the manufacturer.¹⁰⁰ The general and established doctrine is, that an exclusive enjoyment of water, or of light, or of any other easement in any particular way, for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person, which have been, but wits not asserted. The right is confined to the extent, and the mode of the enjoyment during the twenty years. All that the law requires is, that the mode or manner of using the water should not be materially varied to the prejudice of other owners; and the proprietor is not bound to use the water in the same precise manner, or to apply it to the same mill, for such a construction of the rule would stop all improvements in machinery. He is only not to vary the enjoyment to the prejudice of his neighbor.

This presumption of title founded on that enjoyment, is equally well established in English¹⁰¹ and American law.¹⁰²

The cases usually say, that this right, acquired by twenty years undisturbed and uninterrupted enjoyment of an easement, is founded on the presumption of a grant or release and if so, it is not an absolute title, but one that is liable to be rebutted by circumstances, and is to stand good until the presumption of title be fully and fairly destroyed. This was the doctrine so late as the cases of Campbell v. Wilson, ¹⁰³ and of Livet v. Wilson,¹⁰⁴ and it is the prevalent language in all the books, English and American. But some of the later English authorities seem to give to this presumption the, most unshaken stability, and they say it is conclusive evidence of title. In Tyler v. Wilkinson¹⁰⁵ where the whole law on the subject is stated with learning, precision, and force, the presumption is even made to be one juris et de jure, and to go to the extinguishment of the right in various ways, as well as by grant. The operation of the presumption, founded on the fact of the uninterrupted enjoyment of the basement for twenty years, is said to exist, notwithstanding personal disabilities of particular proprietors might have intervened, and where, in the ordinary course of proceedings.- grants would not be presumed.

The nature and extent of the right acquired by prior occupancy of a running stream becomes frequently an important and vexatious question between different riparian proprietors. The law gives considerable weight and effect to the first appropriation oft he elements of light, air, and water; and, therefore, if I build my house close to my neighbor’s wall, I cannot compel him to demolish it, though it may obstruct my light, for the first occupancy is in him. So, if I make a tanyard, which renders less pleasant and salubrious the air of the house and garden subsequently established adjoining it, the nuisance is said to be without a remedy to the person who voluntarily plants himself near it.¹⁰⁶ If I am the first person who applies the water of a running stream to the purposes of irrigation, or of a mill, I cannot afterwards be lawfully disturbed in any essential degree, in the exercise of my right, provided the water be used by me in such a reasonable manner as not to divert the natural course of the stream from the lands below, nor essentially to destroy the use of it as it naturally flowed over the lands of the proprietors above and below me.¹⁰⁷ If, however, the prior occupant has enjoyed the use of water in any particular mode for twenty years, so as to have acquired a title by prescription, he is, in that case, entitled to remain undisturbed in his possession, in the mode, and to the extent, commensurate with the right as it has been acquired and defined by enjoyment.¹⁰⁸ But if the prior use of the stream should have been materially altered within the twenty years, to the injury or annoyance of any adjoining occupant, who had, in the mean time, possessed himself of the use of the water, the title hy prescription would be wanting as to such alterations, and they would be unlawful, and, consequently, a ground of action.¹⁰⁹

Aright acquired by use may, however, be lost by nonuser, and an absolute discontinuance of the use for twenty years affords a presumption of the extinguishment of the right in favor of some other adverse right.¹¹⁰ As an enjoyment for twenty years is necessary to found a presumption of a grant, the general rule is, that there must be a similar non-user to raise the presumption of a release. But I do not apprehend that the mere non-user of an easement, even for twenty years, will necessarily raise a presumption of its extinguishment, unless there has been, in the mean time, some act done by the owner of the land, charged with the easement, inconsistent with, or adverse to the existence of the right; and, in that case, a release or extinguishment of the right will be presumed.¹¹¹

The doctrine of the civil law was, that a servitude was presumed to have been released or renounced, when the owner of the estate to which it was due, permitted the owner of the estate charged with it, to erect such works on it, as a wall, for instance, which naturally and necessarily hindered the exercise of the right, and operated to annihilate it. The mere sufferance of works to be erected, repugnant to the enjoyment of the servitude, would not raise the presumption of a release, unless the sufferance continued for a time requisite to establish a prescription; or the works were of a permanent and solid kind, such as edifices and walls, and presented an absolute obstacle to every kind of enjoyment of the easement. There must be a total cessation of the exercise of the right to the servitude, during the entire time necessary to raise the presumption of extinguishment, or there must have been some permanent obstacle permitted to be raised against it, and which absolutely destroyed its exercise.¹¹²

Unity of possession of the estate to which an easement is attached, and of the estate which the easement encumbers, is, in effect, an extinguishment of the easement. But this does not apply to a way of necessity; and though it be suspended by the unity of possession, it revives by necessary implication, when the possession is again severed.¹¹³ Nor is a water course extinguished by unity of possession, and this from the necessity of the case, and the nature of the subject. This was settled, after a very elaborate discussion, in Shury v. Pigott,¹¹⁴ and that case was accurately examined and deliberately confirmed, in all its parts, in Hazard v. Robinson. But the use of water, in a particular way, by means of an aqueduct, may be extinguished by the unity of possession and title of both the parcels of land connected with the easement; and if the adverse enjoyment of an easement be extinguished, within the period of prescription, by the unity of title, and the land which possesses the easement be shortly thereafter separated again from the land charged with the easement, by a re-conveyance, the right to be acquired by user, must commence de novo from the last period.¹¹⁵

As to light and air, the right to them is acquired by mere occupancy, and will continue so long, only, as the party continues the enjoyment, or shows an intention to continue it. A person may lose a right to ancient lights by abandonment of them, within a less period than twenty years, if he indicates an intention, when he relinquishes the enjoyment of them, as by building a blank wall to his house, never to resume it.¹¹⁶ It is the modern doctrine, that the ceasing to enjoy such an easement will destroy the right, provided the discontinuance be absolute and decisive, and unaccompanied with any intention to resume it within a reasonable time,; and it is a wholesome and wise qualification of the rule, considering the extensive and rapid improvements that are every where making upon real property.

So, also, in Hatch v. Dwight,¹¹⁷ it was declared, upon the same principle, that if a mill-site unoccupied be abandoned by the owner, evidently with an intent to leave it unoccupied, it would be unreasonable that the other riparian proprietors, above and below, should be prevented, by fear of suits, from making a profitable use of their sites. The law is solicitous to prevent all kind of imposition, and injury from confidence reposed in the acts of others; and a parol license to do an act, on one’s own land, affecting injuriously the air and light of a neighbor’s house, is held not to be revocable after it has been once acted upon.¹¹⁸

III. Of Offices.

Offices are another species of incorporeal hereditaments, and they consist in a right, and correspondent duty to execute a public or private trust, and to take the emoluments belonging to it.¹¹⁹ Offices, in England, may be granted to a man in fee, or for life, as well as for years, and at will.¹²⁰ In the United States, no public office can properly he termed an hereditament, or a thing capable of being inherited. The constitution, or the law of the state, provides for the extent of the duration of the office, which is never more permanent than during good behavior. Private ministerial offices only can be classed as hereditaments, and I do not know of any such subsisting among us. It would not be consistent with our manners and usages, to grant a private trust or employment to one, and his heirs, in fee; though I do not know of any positive objection to such a contract in point of law. But in the revision of the statute law of this state, in 1787, most of the provisions in the ancient English statutes relative to offices, were re-enacted.

It was provided, among other things,¹²¹ that if a man be unduly disturbed in his office, a writ of novel disseizin should be maintainable for offices in fee, and for life, as well as for lands and tenements. This regulation was taken from the statute of Westminster 2d, 13 Edw. I and it is probably a very useless provision. We have likewise (and very properly) re-enacted¹²² the substance of the statute of 5 and 6,Edw. VI. ch. 15. against buying and selling offices, and it prohibits the sale of any office, or the deputation of any office, or taking of any fee or reward therefor. The offense is punished with the loss of the office; but it does not apply to the case of a deputy ageing to pay his principal part of the profits of an office, and to be allowed to reserve another part to himself as a compensation for his services.¹²³ The object of the statute was to prevent corruption in office, and it alludes only to corrupt bargains and sales of offices, and not to the fair and necessary appointment of deputies with a reasonable allowance, though on this point there have been some refined distinctions established.

If an officer has a certain salary, or certain annual profits, a deputation of his office, reserving a sum not exceeding the amount of his profits, has been held not to be contrary to the statute, because the principal is entitled to the fees and perquisites of the office, and the deputy to a recompense for his labor in the execution of it. So. if the profits be uncertain, the deputy may lawfully agree to pay so much out of the profits, for in that case he cannot be charged for more than he receives. But if the office consists of uncertain fees and profits, and the deputy agrees to pay a certain sum annually, without restricting the payment to the proceeds of the profits, it would be a sale within the statute; and the case is not altered by the office yielding more in contingent profits than the amount of the money stipulated to be paid.¹²⁴ It would also be a contract within the purview of the statute, for the deputy to secure all the profits to the person appointing him, for this would infallibly lead to extortion in the deputy.¹²⁵

The statute in this state would seem to be broader than the English statute of 5 and 6 Edw. VI, for it has omitted the explanatory and restrictive words in that statute, applying it to “office or offices, or any part or parcel of them that shall in any wise touch or concern the administration or execution of justice;” and the preamble shows, that it was intended to apply to “places where justice is to be administered, or any service of trust executed.” In England, the place of under marshal of London is a service of public trust, and yet it has been held to be saleable, because it only concerned the police of the city.¹²⁶ If, however, the statute of this state should not admit of a more comprehensive, construction titan the one from which it was taken, yet the principles of the common law supply all deficiencies; and many agreements for the sale of offices that are not within the statute of Edw. VI have been held void, as being against public policy. Thus, if A. should agree to allow to B. a certain proportion of the profits of an office in the king’s dock-yards, in case the latter retired, and he succeeded to the appointment, the agreement would be void, as not supported by a valid consideration.¹²⁷

The provisions and rules of the ancient common law were remarkably provident in respect to the public interest; and an office of trust, that concerned the administration of justice, could not he granted for a term of years, for then it might vest in executors and administrators, if the officer should die within the term; and it would he impossible that the law should know beforehand, whether the representatives would be competent to discharge the trust. This was so ruled by Lord Coke, and others, in Sir George Reynel’s case, respecting the office of marshal of the marshalsea.¹²⁸ Sir Henry Finch, in his Discourse,¹²⁹ held, that the grant of an office to an ignorant man who had no skill at all, was utterly void; as if the king by his letters patent, made a clerk, of the crown in the K. B., who had no experience in office, and was utterly insufficient to serve the king and people.

The general rule is, that judicial offices must be exercised in person, and that a judge cannot delegate his authority to another. I do not know of any exception to this rule with us, though in England there are several,¹³⁰ What is a judicial, and what is a ministerial function, has been sometimes a matter of dispute. In Medhurst v. Waite,¹³¹ Lord Mansfield said, it was taking the definition too large, to say that every act, where the judgment was at all exercised, was a judicial act, and that a judicial act related to a matter in litigation. But a ministerial office may be exercised by deputy, though a deputy cannot make a deputy, according to the maxim, delegata potestas non potest delegari. The distinction between a deputy and an assignee of an office, as stated by Lord Coke, in the Earl of Shrewsbury’s case,¹³² will serve to explain the application of the statute against buying and selling offices to assignees and not to deputies. An assignee of an office, he says, is a person who has an estate or interest in the office itself, and does all things in his own name, and for whom his grantor shall not answer. But a deputy has not any estate or interest in the office. He is but the officer’s shadow, and does all things in the name of the officer himself, and nothing in his own name, and his grantor shall answer for him.¹³³

IV. Of franchises.

Franchises are certain privileges conferred by grant from government, and vested in individuals. In England they are very numerous, and are understood to be royal privileges in the hands of a subject.¹³⁴ We have nothing to do with a great proportion of the franchises that occupy a large space in the treatises on English law; and whoever claims an exclusive privilege with us, must show a grant from the legislature. Corporations, or bodies politic, are the most usual franchises known in our law; and they have been sufficiently considered in a former volume. These incorporated franchises seem, indeed, with some impropriety, to be classed by writers among hereditaments, since they have no inheritable quality, inasmuch as a corporation, in cases where there is no express limitation to its continuance by the charter, is supposed never to die, but to be clothed with a kind of legal immortality. Special privileges conferred upon towns and individuals in a variety of ways, and for numerous purposes, having a connection with the public interest, are franchises.

V. Of annuities.

An annuity, says Lord Coke,¹³⁵ is a yearly sum stipulated to be paid to another, in fee, or for life, or years, and chargeable only on the person of the grantor. If it be agreed to he paid to him and his heirs, it. is a personal fee, and transmissible by descent like an estate in fee, and forfeitable for treason as an hereditament,¹³⁶ and for that reason it belongs to the class of incorporeal hereditaments. It is chargeable only upon the person of the grantor, for if the annuity was made chargeable upon land, it would then become a species of rent.¹³⁷ The remedy for a failure in the payment of the annuity, is either by the ancient and obsolete original writ of annuity, or by the modern and easy remedy of a personal action on the instrument by which the annuity is created.

VI. Of rents.

Rents are the least species of these incorporeal hereditaments, and they form a very important and interesting title under this branch of the law.

Rent is a certain profit in money, provisions, chattels, or labor, issuing out of lands and tenements in retribution for the use.¹³⁸ There were, at common law, according to Littleton,¹³⁹ three kinds of rent, viz. rent service, rent charge, and rent seck. Rent service was where the tenant held his land by fealty, or other corporeal service, and a certain rent; and it was called rent service because it was given as a compensation for military, or other services, to which the land was originally liable.¹⁴⁰ A right of distress was inseparably incident to his rent. Rent charge, or fee-farm rent is where the rent is created by deed, and the fee granted; and as there is no fealty annexed to such a grant of rent, the right of distress is not an incident, and it requires an express power of distress to be annexed to the grant, which gives it the name of a rent charge, because the lands are, by the deed, charged with a distress.¹⁴¹

Rent seck, siccus, or barren rent, was rent reserved by deed, without any clause of distress, and in a case in which the owner of the rent had no future interest or reversion in the land. The owner of the rent was accordingly driven to the slow and tedious remedy by a writ of annuity, or a writ of assize.¹⁴² But the statute of 4 Geo. II. c. 28. abolished all distinction between the several kinds of rent, so far as to give the same remedy by distress in cases of rents seek, rents of assize, and chief rents, as in the case of rent reserved upon a lease. The statute of New York on the subject of distresses and rents,¹⁴³ has not adopted that provision in so many words, but it assumes, that the remedy by distress lies for rent reserved and due upon any demise, lease, or contract whatsoever, and for any kind of rent; and it specially gives the remedy by distress to the executors and administrators of persons who were entitled to rent seck, rent service, rent charge, and fee farms, and died leaving arrearages of rent due.¹⁴⁴ There is, therefore, the same universal remedy by action and by distress, for every species of rent or service lawfully due, when the same is certain, and the landlord who distrains has a reversionary interest.¹⁴⁵ The tenancy that will authorize a distress does not necessarily require a formal lease, and it may be implied from circumstances, and a parol lease will be sufficient.¹⁴⁶

The best way of reserving perpetual rents, if it be intended that rents should always be of the same value, is to stipulate that the payment be in kind, such as wheat, or other produce, or in cattle or poultry. This was the almost universal practice in ancient times, and a great proportion of the ancient leases in this state, in the manor countries, were of that description. By the statute of 18 Eliz. one third part of the rent upon college leases, was directed to be reserved in corn, to be paid either in corn, or at the current prices at the nearest public market. We have an instance of the same provident foresight in the act instituting the university in this state,¹⁴⁷ and limiting its annual income to 40,000 bushels of wheat. This arrangement saves the interest of the persons in whose favor rent is reserved, from sinking by the depreciation of money, owing to the augmentation of gold and silver, and the prodigious accumulation of paper credit. The rents which have been reserved in corn, says Doctor Smith, have preserved their value much better than those which have been reserved in money.¹⁴⁸

In the feudal ages a great proportion of the produce of the land went as rent to the landlord. The cultivators of the soil were generally bondsmen, or tenants at will, whose labors in peace, and services in war, were equally at the command of the landlord. In modern times, the rent of land has been tripled and quadrupled, but the produce of the land, in the progress of improvement, has been increased in a much greater proportion, and the amount of the yearly produce of land is several times greater than the amount of the yearly rent.¹⁴⁹

We will, in the first place, ascertain when, and to what extent, rent is due, and then take a view of the remedy for the recovery of rent.

(1.) It is a rule of law, that the rent must be reserved to him from whom the land proceeded, or to his lawful representatives, and it cannot be reserved to a stranger. Thus, if A. leases a lot, or parcel of land, to B., on a certain rent, the payment of that rent cannot be reserved to C.; and the reason is, that the rent is payable as a return for the possession of the land, and it must, therefore, be rendered to the person from whom the land passed.¹⁵⁰ It was also, on the same ground, decided, in Prescott v. De Forest, and afterwards in Cornell v. Lamb,¹⁵¹ that the right of distress for rent was incident to the reversion, and that no other person could distrain but he who owned the reversion. The person who distrains must have some reversionary interest to sustain the right.. If the landlord dies before the rent becomes due, it goes to the heir as incident to the reversion; but if he dies after the rent had become payable, it goes to the executor or administrator as part of the personal estate, and the executor or administrator may distrain for the arrears of rent due at the tenant’s death.¹⁵²

If the tenant be evicted from the lands demised to him, by a title paramount, before the rent falls due, he will be discharged from the payment of the+ rent, for the obligation to pay ceases when the consideration for it ceases, and which was he enjoyment of the land.¹⁵³ So, if there be an actual expulsion of the tenant from the whole, or a part, by the lessor, before the rent becomes due, and be continued until after the rent becomes due, it bars the claim for the rent;¹⁵⁴ but no offensive or outrageous conduct on the part of the landlord, as by erecting a nuisance in the neighborhood of the demised premises, will be sufficient.¹⁵⁵

The cases have afforded a full discussion of the interesting question, how far a tenant is excused from the payment of rent, when he is deprived, even by inevitable necessity or misfortune, and without any default on his part, or on the part of the landlord, of the enjoyment of the premises. In Tavener’s case,¹⁵⁶ which arose in 34 and 35 Hen. VIII, a man made a lease of land, and of a flock of sheep, rendering a certain rent, and all the sheep died. The question was, whether the tenant could have relief from this calamity, at the expense of his landlord, by an apportionment of the rent. It was very much debated, and different opinions were entertained by the sergeants and judges who discussed the subject. Some of them thought there was good reason and equity to apportion the rent, or, in other words, to make a proportional deduction for the loss of the sheep. But others held to the contrary opinion, and that though the sea, or an inundation, should gain upon the land, or part of it be burnt by wildfire, the entire rent must issue out of the remainder, and that it would be different if part of the land should be recovered from. the tenant by a title paramount to that derived from his landlord. The point was left unsettled by this early decision, but the opinion of those who were for the payment of the entire rent, gained a decided superiority in the course of the subsequent century.

In Paradine v. Jane,¹⁵⁷ an action of debt was brought for rent, upon a lease for years, and the defendant pleaded, by way of excuse for the non-payment of the rent, that he had been driven from the premises by public enemies, viz: by Prince Rupert and his soldiers. The case was fully and ably argued before the King’s Bench, during the time of the civil wars, in the reign of Charles I. It was insisted, that by the law of reason, a man ought not to pay rent when he could not enjoy, without any default on his part, the land demised to him, and that the civil and canon law exempted the party in such a case. But Rolle, J., (the same person who was author of the abridgment,) overruled the plea, and held that neither the hostile army, nor an inundation, would exempt the tenant from paying rent.

The same doctrine has been continued to this day; and it is well settled, that upon an express contract to pay rent, the loss of the premises by fire, or inundation, or external violence, will not exempt the party from his obligation to pay the rent. The case of Hallet v. Wylie,¹⁵⁸ was decided on that principle; and the principal English authorities were reviewed. Since that decision, the point has been presented and decided the same way in the English C. B., in Baker v. Holtzapffell;¹⁵⁹ and the unsettled question, whether a court of equity would grant relief to the tenant against the landlord’s claim at law for rent, has also been put at rest by the decision in Hare v. Grove¹⁶⁰ in the English Exchequer, and of Holtzapffell v. Baker,¹⁶¹ in the English Court of Chancery. In both of these cases, the Court of Equity refused to interfere in favor of the tenant, who was considered as having no equity against the effect of his own express agreement to pay the rent.¹⁶² The same rule prevails generally on this point, of an effect of an express covenant to pay rent; but it is understood, that by the civil law, the praetor would exempt the tenant from paying rent, or modify the obligation, according to equity, when the property was destroyed by fire, inundation, or violence, or the crops failed by a bad season.¹⁶³ So, Lord Northington, in Brown v. Quilter,¹⁶⁴ thought it very clear, that a man should not pay rent for what he cannot enjoy, if occasioned by an accident which he did not undertake to meet.

But I apprehend that the law, as it is now settled on that point, rests on solid foundations of justice and policy. It is to be observed that the case only applies to express agreements to pay; and if a party will voluntarily create a duty or charge upon himself, he ought to abide by it when the other party is not in fault, and when he might have provided, if he had chosen, against his responsibility in case of such accidents. The loss of the rent must fall either on the lessor or lessee, and there is no more equity that the landlord should bear it than the tenant, when the tenant has engaged expressly to pay rent, and when the landlord must bear the loss of the property destroyed. The calamity is mutual; and there is much weight in the observation of the counsel, in one of the cases referred to, that these losses by fire may often proceed from the carelessness of tenants, and if they can escape from the rent, which they may deem inconvenient, by leaving the property carelessly exposed, it might very much lessen the inducements to a reasonable and necessary vigilance on their part.

Inevitable accident will excuse a party from a penalty, but will not relieve him from his covenant to perform. Thus, in a case as early as 28 and 29 Henry VIII,¹⁶⁵ the party covenanted to sustain and repair the banks of a river, under pain of forfeiture of £i0., and the banks were destroyed suddenly by a great flood. The court held that he was bound to repair, but was not subjected to the penalty.

When rent is due, a tender upon the land is good, and prevents a forfeiture. The tenant is not bound to go and seek the landlord, provided the contract be silent as to the place of payment, and yet a personal tender to the landlord, off the land, is also good.¹⁶⁶ The time of payment depends upon the contract; and if there be no special agreement to the contrary, the payment would be due either yearly, half-yearly, or quarterly, according to the usage of the country, and the presumed intention to conform to it. If there be no usage in the case, the rent is due at the end of the year. But in the city of New York, it is provided by statute, that, in the absence of any special agreement, the rent is payable quarterly, and the hiring terminates on the first of May thereafter¹⁶⁷

On the subject of the apportionment of rent, there are several distinctions to be noticed. There are two modes of apportioning rent. The one is, by granting the reversion of part of the land out of which the rent issues; the other, by granting part of the rent to one person, and part to another.¹⁶⁸ It is laid down as a general rule, in the more ancient cases, that if the owner of a rent service purchased part of the land out of which the rent issued. the rent was to he apportioned according to its just value, and the tenant was discharged of the rent, in a ratio to the value oft he land purchased. But if a man had a rent charge, and purchased part of the land out of which the rent issued, the whole rent was held to be extinguished.¹⁶⁹ The objection to the doctrine of the apportionment of rent was, that it exposed the tenant to several suits or processes of distress, for a thing which was originally entire, and he ought not to be obliged to pay his rent in different parcels, and to several landlords, when he contracted to pay, in one entire sum, to one person.

But the convenience of mankind dictated the necessity of an apportionment of rent in a variety of cases. Though it was a principle of the common law that an entire contract could not be apportioned, yet the apportionment of rent was, under certain circumstances, allowed by the common law, either on severance of the land from which it issued, or of he reversion to which it was an incident. A person has a right to sell the whole or any part of his reversionary interest in land. It may be necessary to divide his estate out on rent among his children, or to sell part to answer the exigencies of the family; and it would be intolerable if such a necessary sale worked an extinguishment of the whole rent. The rent passes as an incident to the purchaser of the reversion, and the tenant may always avoid several suits and distresses by a punctual payment of his rent. The rent is to be apportioned among the several owners of the reversion or of the rent, according to the value of the land; and whenever the question becomes a litigated one in a court of justice, it is the business of the jury, upon evidence produced, to apportion the rent to the value of the land.

These things are now generally regulated hy the agreement of parties, whenever a sale of part only of the demised premises is made, and the tenant has no concern with the transaction, since he pays no more than his stipulated rent, and to the claimants in the proportions settled by themselves. There is no doubt, therefore that a rent charge may be apportioned, whenever the reversioner or owner of the rent either releases part of the rent to the tenant, or conveys part of the land to a stranger.¹⁷⁰ The rent is also liable to apportionment by act of law, as in cases of descent and judicial sales.¹⁷¹ If the landlord enters upon part of the demised premises by wrong, the better opinion is, that it suspends the payment of the whole rent until the tenant be restored to the whole possession, for the lessor ought not to be able so to apportion his own wrong as to oblige the tenant to pay any thing for the residue; but the rule is otherwise in the case of a lawful entry into part of the demised premises, by the authority of the tenant himself.¹⁷²

The rule at common law was, that neither law nor equity would apportion rent as to time, and, therefore, if the tenant for life gave a lease for years, rendering a yearly rent and died in the course of the year, the rent could not be apportioned, and the tenant would go free of rent for the first part of the year. The principle was, that an entire contract could not be apportioned. The imperfect performance of it depending on various acts, could not reasonably afford a title to the whole, and from the complex nature, and uncertain value of part performance, it con Id not afford a title to any part of he stipulated consideration.¹⁷³ But the statute of II Geo. II. c. 19. sec. 15. supplied the principle that apportionment should be made of rent in respect to time in such cases, and that part of the statute has been re-enacted in this state.¹⁷⁴

(2.) The remedy provided by law for the recovery of rent., depends upon the nature of the instrument or contract by which payment is secured. The suit may he an action of covenant, or debt, or assumpsit, for the use’ and occupation of the land. The landlord may also re-enter, or recover possession of the land, by the action of ejectment, for non-payment of rent, provided no sufficient distress can he found; and if the tenant, in such a case, does not redeem within six months, the land will he deemed discharged from the lease or contract. But the more usual, prompt, and effectual remedy, is by distress, which was provided by the common law, and has been regulated and greatly improved by statute in England and in this country.

In this state we have adopted the common law on the subject of distress for rent, and we have likewise re-enacted the substance of the English statutes of 52 Hen. III, 3 Edw. I, 13 Edw. I, 21 Hen. VIII, 17 Car. II, W. and M., 8 Anne, and II Geo. II,¹⁷⁵ and which statutes were made on purpose to control abuses, and mitigate the rigor of the common law. The English common and statute law, in relation to distress for rent, has been generally, and, I apprehend, essentially adopted in several of the other states, as, for instance, in New Jersey, Pennsylvania, Maryland, and South Carolina;¹⁷⁶ but the whole law has been judicially declared in North Carolina, to be irreconcilable with the spirit of their laws and government, and to be of no force in that state.¹⁷⁷ In the New England states, their law of attachment on mesne process has superseded the law of distress fur rent; but under their attachment laws, the principles of the common law doctrine of distress seem to have been essentially assumed, subject to the same checks and limitations which, under the English statute law, and modern decisions, have modified and improved it.¹⁷⁸ I shall, therefore, proceed to consider the remedy by distress for rent, upon the principles of the English common and statute law, as being incorporated into the jurisprudence of this, and of most of the United States.

The exorbitant authority and importance of the feudal aristocracy, and the extreme dependence, and even vassalage of the tenants, was the occasion of introducing the law of distresses, and which summary remedy is applicable to no other contracts for the payment of money, than those between landlord and tenant. The non-payment of rent, or non-performance of any other stipulated service, was originally, by the feudal law, a forfeiture of the feud, and the lord was at liberty to enter and reassume it. The severity of those feudal forfeitures was then changed, and intended to be softened into the right of distress, which was borrowed, as Baron Gilbert supposses,¹⁷⁹ from the civil law, for by that law the creditor had a right to seize a pledge in order to obtain justice. So, under the feudal law, instead of insisting upon an absolute forfeiture of the land, or even of the right of the lord to enter and hold the lands until the tenant had rendered his service, the law substituted the seizure of the cattle, and other moveables found upon the land, and allowed them to be detained as a pledge until the damages, were paid.

This power of distress, as anciently used, was soon found to be as grievous and oppressive as the feudal forfeiture. It was equally distressing to the tenant to be stripped in an instant of all his goods and chattels, for arrearages of rent, as it was to be turned out of the possession of his farm. The power of distraining for rent, and other feudal services, became an engine of the most insupportable tyranny and oppression.¹⁸⁰ These abuses were first stated in the statute of 51 Hen. III. De Districtione Scaccarii, wherein it is mentioned, that the commonalty of the realm had sustained great damage by wrongful taking of distresses for the King’s debts; and it provided, that when beasts should be distrained and impounded, the owner might feed them without disturbance; and that the things distrained should not be sold until the expiration of fifteen days; and that if there were any chattels to distrain, neither beasts of the plow, nor sheep, should be distrained; and that the distress should be reasonable in amount, according to the estimation of neighbors. In the following year, the, statute of Marlebridge, in the 52d Hen. III. was passed, providing more generally against the abuse of the right of distress, and that statute stated the abuses of landlords in strong language: Magnates graves ultiones fecerut, et districtiones quosque redemptiones reciperunt ad voluntatem suam.

What made the grievance more insupportable, was, that the lords refused to permit the king’s courts to take cognizance of the distresses which they had made at their own pleasure; and, therefore, as Sir Edward Coke observes, they assumed to be judges in their own causes, contrary to the solid maxim of the common law.¹⁸¹ This statute restored the authority of the regular courts, and ordered all distresses to be reasonable, and that whoever made an excessive distress, should be grievously amerced. The distress was not to be taken, or driven out of the county, and it was. not to bee made upon the public highway, and a remedy by replevin was given for a wrongful distress. By these salutary provisions, the power of distress was confined to the original intention of the hew, which was to seize the tenant’s goods by way of pledge, in order to compel hint to perform his feudal engagements.¹⁸²

The common law also imposed several benign restrictions upon this summary and somewhat perilous authority of distress. It forbade perishable articles to be distrained, because all pledges ought to be returned in the same good condition as when taken. It forbade the tools and implements of a man’s trade, as well as the beasts of the plow, to be distrained, provided other articles could he found; because the taking of such articles would tend to produce an utter inability in the tenant to redeem the pledge.¹⁸³ The goods were also to be put into a pound, and there kept safely, without being used by the landlord, until they were redeemed.¹⁸⁴

But if the tenant was disposed to controvert the legality of the distress, either by denying any rent to be due, or by averring it to be paid, the law provided him with a remedy by the writ of replevin; which was a writ authorizing the sheriff to take back the pledge and deliver it to the tenant, on receiving security from him to prosecute the writ to effect, and to return the chattels taken, if he should fail in making good his defense.

In modern times, the whole policy of the law respecting distresses has been changed. It was inconvenient, if not absurd, that property should be kept in an inactive state in order to compel a man to perform his stipulated payment. A distress at this day is no more than a summary mode of seizing and selling the tenant’s property, to satisfy the rent which he owes; and the extent and manner of the operation have been changed, and made entirely reasonable and just, and equally conducive to the security of the landlord and the protection of commerce.

When rent is due and unpaid, the landlord, upon demand, may enter immediately, by himself or his agent, upon the demised premises, and distrain any goods and chattels that are to be found there, belonging to the tenant or others; and this right of the landlord to distrain any goods and chattels upon the premises, is founded upon reasons of public convenience, and to prevent collusion and fraud.¹⁸⁵ But this inconvenient privilege is subject to many exceptions. Articles that may be temporarily placed upon the land by way of trade, are exempted from distress, on the broad principle of public convenience, and for the benefit of commerce. A horse at a public inn, or corn at a mill, or cloth at a tailor’s shop, or a grazier’s cattle put upon the land for a night, on the way to market, or goods deposited in a warehouse for sale, or goods of a principal in the hands of a factor, are not. distrainable for rent.¹⁸⁶

With respect to the cattle of a stranger found upon the land there is this distinction, that if they broke in they are distrainable immediately, but if the fences were had, they are not distrainable, until the owner, after notice, has neglected to take them away. Corn and grass, whether growing or cut, are seizable by way of distress, and those articles and cattle may be secured or impounded upon the premises, and there sold. The distress must be reasonable, and it cannot be made in a public highway, or removed out of the county. The highway in particular ought to be secure to the tenant for the intercourse of commerce, and the preservation of peace and good order. Nor can beasts of the plow, sheep, or implements of a man’s trade, be taken for rent, so long as other property can be found; but they may be distrained if not in actual use at the time, and there be no other sufficient distress on the premises.¹⁸⁷

In the case of Simpson v. Hartopp,¹⁸⁸ the question was, whether a stocking frame, in the actual use of a weaver at the time, was distrainable for rent; and after two distinct arguments at different terms, it was adjudged, that it was not. Lord Ch. J. Willes took an accurate and elaborate view of the law on the subject; and it was stated, that there were several sorts of things not distrainable at common law. 1. Things annexed to the freehold, such, for instance, as furnaces, millstones, and chimney pieces. 2. Things delivered to a person exercising a public trade, to be worked up or managed in the way of his trade, as a horse at a smith’s shop, materials sent to a weaver, a horse brought to an inn; though, with respect to a carriage at a livery stable, it has since been determined,¹⁸⁹ that it was not privileged from distress for rent by the lessor of the stable. 3. Cocks, or sheaves of corn. 6. Beasts of the plow, and instruments of husbandry. 5. Instruments of a man’s trade. These two last sorts were only exempted from distress sub modo; that is, upon the supposition that there was other sufficient distress. The court, in that case, held, that the stocking frame was privileged from distress while the party was actually using it, even though there was no other distress on the premises. If it had not been in actual use, it might have been distrained; and if things in actual occupancy could be distrained, it would, as Lord Kenyon observed,¹⁹⁰ perpetually lead to a breach of the peace.

The case of Webb v. Bell,¹⁹¹ seems to have laid down a contrary doctrine to a certain extent; for it was there held, that two horses, and the harness, fastened to a cart laden with corn, might be distrained for rent. But Lord Ch. J. Willes doubted the law of that case; and even in the case itself a doubt is suggested, whether, if a man had been upon the cart, the whole team would not have been privileged for the time. In Massachusetts, under their law of attachment upon mesne process, which is analogous to the common law doctrine of distress for rent, it has been held, that a stage coach at a tavern, in preparation, and nearly ready to depart, might be attached; and the court inclined to think, that stage coaches, steam-boats, and vessels in actual use, might be attached, though the decision did not go to that broad extent.¹⁹²

After the distress has been duly made, if the goods be not replevied within five days after notice, the law has provided, that the goods shall be forthwith appraised, and sold at public vendue, under the superintendence of a sheriff or constable, towards satisfaction of the rent. And this law of distress is liable to so much abuse on the part of the landlord, and tenants are so often driven to desperate expedients to elude the promptitude and rapidity of the recovery, that the law has been obliged to hold out the penalty of double damages against the one, if he distrains when no rent is due, and of treble damages against the other, if he unlawfully rescues the goods distrained.¹⁹³ If the tenant, in this state, holds over, he is liable to pay double rent, and all special damages; and the possession may be recovered in such cases, by the landlord, under a new and summary course of proceeding.¹⁹⁴

The proceeding applies to tenants for years, and from year to year, or for part of a year, or at will, or at sufferance, and to the assigns, under tenants, or legal representatives of such tenant; and it applies to holding over after the expiration of the term without permission, or after default in the payment. of rent pursuant to contract. But in the case of a tenancy at will,. or sufferance, three months previous notice in writing, to the tenant, to remove, must have been given; and in case the proceeding be for nonpayment of rent, there must have been a previous demand of the rent, or three days notice in writing, to pay, or deliver the possession. This summary remedy for nonpayment of rent, does not apply, when it shall appear that satisfaction for the rent might have been obtained by distress, and the whole provision is general, and applies to every part of the state.¹⁹⁵

If the tenant carries away his goods, leaving the rent unpaid. the goods of such tenant are not only liable to be seized wherever found, at any time within thirty days after the rent becomes due, though the removal may have been more than thirty days preceding, but the tenant forfeits double the value of the goods.¹⁹⁶ And in order to give further and effectual security to the rent of the landlord, no goods of a tenant, or of any other person being on the premises, and liable to distress, can be taken on execution at the instance of a creditor, until the arrears of rent due at the time, and not exceeding one year, be previously deducted.¹⁹⁷ On this last point, it has been held,¹⁹⁸ that the sheriff must have notice of the landlord’s claim, otherwise he is not bound to know who the landlord is, or what rent is in arrear.

This power of the landlord does not extend to the seizure of goods, as a distress for rent, when the goods have been sold bona fide, and for a valuable consideration, before the seizure was made.¹⁹⁹ But a mortgage of the goods is said not to be a sale within the provision, so as to protect them from distress.²⁰⁰ And if the interest of the tenant in the term has ceased, and the tenancy ended, and the tenant, with his goods, removed from the premises, a distress for rent cannot thereafter be made, though it be within thirty days from the termination of the tenancy.²⁰¹ The remedy by distress, according to the common law, assumed the tenancy to continue, and ceased with it;²⁰² but by the statute of 8 Anne, (and which has been adopted in this country,)²⁰³ the remedy by distress, is extended to six months after the determination of the tenant’s lease, provided the landlord’s title and the tenant’s possession continue. The distress may also be made, under the above limitations, for all the arrears of rent arising during the tenancy, though the rent of several years should happen to be in arrear.²⁰⁴

But the object of this work will not permit me to descend into greater detail, and I am obliged to be confined to a general view of the law on the subject of rent, and the remedy to recover it. The contract for rent, and the remedy, are in constant use and application; and in the cities and large towns there are few branches of the law that affect more sensibly the interests of every class of the people.²⁰⁵ The law may be deemed rather prompt and strict with respect to the interest of the landlord, but I am inclined to think it as a very necessary provision, and one dictated by sound policy. It is best for the tenant that he should feel the constant necessity of early and punctual performance of his contract. It stimulates to industry, economy, temperance, and wakeful vigilance; and it would tend to check the growth and prosperity of our cities, if the law did not afford to landlords a speedy and effectual security for their rents, against the negligence, extravagance, and frauds of tenants. It is that security which encourages monied men to employ their capital in useful and elegant improvements. If they were driven in every case to the slow process of a suit at law for their rent, it would lead to vexatious and countless law-suits, and be, in many respects, detrimental to the public welfare.