customary courts, though there should be no copyhold tenant at the time, or none should be present; and may grant lands to be held by copy, and also admit to lands to be held by copy, at any time or place, and without holding a court (2). When, however, by the custom of any manor, the lord is authorised, with the consent of the homage, to grant parcels of the waste to be held by copy, the consent of the homage assembled at a customary court, duly summoned and held according to the custom, is still necessary (a). And inasmuch as, by the custom of some manors, a licence from the lord to aliene was required, and in some of these cases lords were restrained, by the custom, from granting licences to their tenants to divide their antient tenements, the new Acts provide that licences to aliene parcels may now be granted, and such alienation may be made accordingly (c).

Finally, with a view to facilitating enfranchisement, that is to say, the conversion of the copyhold into freehold, the Copyhold Act, 1894, re-enacting the like provisions contained in the earlier Copyhold Acts, provides, in substance, (for no minute detail can be attempted in this place), that, with the consent of the Board of Agriculture, the lord and the tenant, whatever their interests, may, either by mutual agreement or at the instance of either, effect an enfranchisement of a copyhold tenement. In the case of a voluntary enfranchisement, the compensation to be paid to the lord for the loss of his manorial rights is agreed upon by the parties, and may take various forms (d). Where the enfranchisement is compulsory, the parties may yet agree upon the proper compensation, or, if they cannot, it may be fixed by valuers appointed by them, or by the Board of Agriculture. If, however, the compulsory enfranchisement is at the instance of the lord, or the compensation amounts to more than one year's value of

(z) Ibid., ss. 82, 84.

(a) Ibid., s. 83.

(c) Ibid., s. 86.
(d) Ibid., ss. 15-17.

the lands, it takes the form of a rent-charge (unless the parties agree otherwise); in other cases it is a lump sum paid before actual enfranchisement (e).

Upon every enfranchisement, whether compulsory or voluntary, the land becomes in all respects of freehold tenure, and ceases to be subject to any particular custom whatever (f); but, on the other hand, no compulsory enfranchisement compulsorily affects any right as to mines or minerals, or any right of fair or market, or of game, fish, or fowl (g), or the lord's right of escheat (h). And these provisions of the Copyhold Act, 1894, extend also to extinguishing, in the case of freehold lands held of the manor, the heriots or other like incidents of tenure annexed thereto (i).

The actual enfranchisement is effected, in voluntary cases, by a deed conferring upon the owners of the copyhold tenement the freehold reversion or seignory of the lord; but, in the case of voluntary enfranchisement by limited owners, the consent of the Board of Agriculture is required (k). In compulsory enfranchisements, the conversion of the copyhold tenement into a freehold is effected by the award of the Board (1). In either case, the compensation secured to the lord, and the freehold interest in the enfranchised tenement, enure for the benefit of all the persons previously interested in the manor and the copyhold tenement respectively, in proportion to their respective interests (m).

(e) Ibid., ss. 5-8.
(f) Ibid., s. 21.

(g) Ibid., s. 23.

(h) Ibid., s. 21 (6).

(i) Ibid., ss. 2, 94.
(k) Ibid., s. 16.

(1) Ibid., s. 10.

(m) Ibid., s. 21.

1

CHAPTER XXIII.

OF INCORPOREAL HEREDITAMENTS, CALLED ALSO "PURELY INCORPOREAL HEREDITAMENTS.

66

66

INCORPOREAL hereditaments now remain to be considered. As we have said, in a previous chapter, incorporeal hereditaments are "not the subject of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation." The meaning of which elaborate definition, borrowed from the older law books, is simply this, that incorporeal hereditaments do not confer upon their owners seisin, or even possession, of the land with which they are connected. Some indeed, as personal annuities descendible to heirs, though they are hereditainents in the strict sense, are not connected with land at all, and are, therefore, not real estate, but personalty. By far the greater number, however, of incorporeal hereditaments recognised by our law are issuing out of, exercised over, or in some way connected with land; and fall, therefore, properly to be discussed under the head of Things Real.

But it may be objected, that certain of the interests which we have already discussed, e.g., estates in reversion and remainder, do not confer seisin or possession upon their owners. That is, undoubtedly, true; and therefore these interests are, by some writers, very plausibly treated as incorporeal hereditaments (n). But they differ from the class of interests to be discussed in this chapter, in the important fact, that they will, in due

(n) This classification was more justifiable at the time when corporeal hereditaments "lay in

livery" only, and not "in grant." (See Real Property Act, 1845,

s. 2.)

course, at some future time confer seisin or possession, by the expiry of the particular estates which precede them. They thus share largely the character of corporeal hereditaments, amongst which we have classed them; while the more defined and limited interests which we now propose to discuss, and which never (except by way of remedy to recover them (o)) confer possession of the land upon their owners, may fairly be described as hereditaments purely incorporeal.

Incorporeal hereditaments, in this latter sense, include (amongst other species not requiring notice) adrowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, corodies, pensions, annuities, and rents. But, for the discussion of many of these subjects, places more distinctly appropriate will be found hereafter; and therefore, in the present chapter, we shall direct the reader's attention only to the following heads, namely, commons, ways, watercourses, lights, franchises, and rents (including annuities). These interests, or, as they are frequently called, jura in alieno solo, fall into two classes, according as they do, or do not, confer upon the persons entitled to exercise them the right to take actual tangible subject-matter. Thus, commons, rents, and some franchises, are called profits, or profits à prendre; because they involve the taking of grass, wood, money, and the like. But ways and lights, which confer only rights of user, not of taking away, are called easements (p). There is, as we shall hereafter see, considerable legal importance attached to this distinction.

I. [Common (or right of common) is a profit which a man hath in the land of another, as to feed beasts, to catch fish, to dig turf, to cut wood, or the like. The

(o) e.g., rent-charges under s. 44 of the Conveyancing Act, 1881.

(p) Curiously enough, a right to take water from a natural channel

or pond is an easement, not a profit. (Race v. Ward, (1855) 4 E. & B. 702.)

[right derives its name from the community of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right; all which parties are entitled to bring actions for injuries done to their respective interests and that both as against strangers and as against each other (q). There are several sorts of common, e.g., common of pasture, common of piscary, common of turbary, and common of estovers.

1. Common of pasture is the principal and most frequent sort, being the right which a man has to feed his beasts on another's land; and, in respect of title, it is either appendant, appurtenant, because of vicinage, or in gross (r).

Common of pasture appendant is a right, belonging to the tenants of arable land within manors, to put commonable beasts upon the lord's wastes. Commonable beasts are such beasts as are necessary, either for the ploughing of the land or for its manuring, viz., horses and oxen, cows and sheep. This species of common of pasture is a matter of universal right; and it was originally permitted, not only for the encouragement of agriculture, but for the necessity of the thing. For, when lords of manors granted out parcels of lands to tenants, these tenants could not plough or manure the lands without beasts, these beasts could not be sustained without pasture, and pasture could not be had but upon the lord's wastes, and on the uninclosed fallow lands of themselves and the other tenants. The law therefore annexed this right of common, as inseparably incident to the grant of lands.] From this of course it follows, that it is only in respect of arable land that common appendant can be claimed; though it may be claimed by that name as appendant to a farm now in fact containing pasture, for the land shall be presumed (where there is usage to sustain the claim) (q) Robert Marys' Case, (1612) 9 (r) Co. Litt. 122 a. Rep. 113.