CHAP. IV. I. RIGHTS TO REAL PROPERTA. 9. Emblements, or growing annual crops, produced or improved by care and industry, we have seen, are, whilst growing, considered, for many purposes, part of the realty, and, unless expressly excepted in a conveyance, would pass to the purchaser 9. Emblements. as part of the land, in the same manner as fixtures. (x) But as for the most part these are personal estate, and may be taken in execution as fructus industriales, and, upon death even of a tenant in fee, belong to his executor, and not to his heir, we have classed them as personal property. (y) A farmer cannot be rated to the poor in respect of his crops or farming stock, because the annual profits of the land in the aggregate having been already rated, the profits of the stock cannot be also separately rated, they having already been virtually assessed in those of the land. (z) Crops sold by a mortgagor belong to, and may be seized and sold by the mortgagee after recovery in ejectment, or even without ejectment, if he can get possession peaceably, or he may maintain trover against a person who takes the crops; (a) and if a lessee sow corn, and commit a forfeiture of his lease, the landlord is entitled to the same. (b) 10. Fixture is a term in general denoting the very reverse of 10. Fixtures. the name. It is something not originally constructed as part of a building, but formerly a moveable chattel, and afterwards annexed to the building or land for the more convenient enjoyment thereof, and which, at the will of the owner, is at all times readily capable of being removed, though at the time annexed. We have fully considered these in stating the different descriptions of personal property, and there shown when it becomes part of the realty and passes as such. (c) Questions relating to fixtures arise between the heir and an executor, or the executor and remainder-man, or a landlord and tenant, whether in trade, for agricultural purposes, or for ordinary habitation, and whether or not affected by covenant. Between the heir and the executor, the rule is more strict in favour of the heir than that as between landlord and tenant, and almost every annexation intended for the permanent improvement or better enjoyment of the premises is not removeable, but belongs to the heir. But some things put up by a tenant for life will go to the executor, and not to the remainder-man; and, as between landlord and tenant for agricultural or ordinary purposes, the rule has 64. (1) See infra, Fixtures. (y) See ante, 91 to 94. (3) 2 Ld. Raym. 1280; Burn, J. Poor, VOL. I. (a) 1 Price, 53; 3 Bing. 11. (b) Davis v. Eylon, 7 Bing. 154. M CHAP. IV. been relaxed in modern times in favour of the tenant; and it has even been held that a pump erected by an ordinary tenant, and very slightly affixed to the freehold, is removeable as a tenant's fixture; and stoves, grates, ornamental chimney-pieces, wainscots fastened with screws, coppers, and various other articles, are now clearly removeable by any tenant, if they can be separated without injury to the landlord; (d) and tenants may remove any building or annexation for the purposes of trade, unless restrained by express covenant. (e) Fixtures of every description, when annexed to any building whatever, or in squares, or fixed in land, or in the possession of tenants, are, as regards criminal injuries, now specially protected by recent acts. (g) The 7 & 8 Geo. 4, c. 29, s. 44, enacts, "That if any person shall steal, or rip, cut, or break, with intent to steal, any glass or wood-work, belonging to any building whatsoever, or any lead, iron, copper, brass, or other metal, or any utensil or fixture, whether made of metal or other material, respectively fixed in or to any building whatsoever, or any thing made of metal fixed in any land being private property, or for a fence to any dwelling-house, garden, or area, or in any square, street, or other place dedicated to public use or ornament, every such offender shall be guilty of felony, and shall be liable to be punished in the same manner as in the case of simple larceny; and in case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person." The prior statutes, 4 Geo. 2, c. 32, and 21 Geo. 3, c. 68, relating to this offence, are repealed by 7 & 8 Geo. 4, c. 27. This enactment extends the offence much further than the prior acts did, as it includes all utensils and fixtures, of whatever material made, either fixed to buildings or in land, or in a square or street. A church, (h) and, indeed, all buildings, (i) are within the Act. An indictment, therefore, for stealing lead fixed to a certain building, without further description, will suffice; (2) and there is a general provision rendering persons liable summarily to the extent of 51. before a magistrate, for any wilful or malicious injury to any building (d) 6 Bing. 437. See more fully ante, 94; and see in general, Amos on Fixtures. According to the reasoning of Dr. A. Smith in his Wealth of Nations, all annexations for purposes of agriculture ought to be equally removeable as when made for purposes of trade, but that principle has not been as yet judicially established. Elwes v. Mawe, 3 East, 38; see post, 174, tit. "Improvement." (g) 7 & 8 Geo. 4, c. 29, s. 44; as to stealing fixtures to buildings, or in land, and as to larceny thereof by lodgers, id. 45; and as to malicious injuries, see 7 & 8 Geo. 4. c. 30. (h) 1 East, P. C. 592. or property, whether public or private, and which extends to every injury to any fixture. (k) CHAP. IV. I. RIGHTS TO REAL PROPERTY. and consider We now proceed to consider the various kinds of Corporeal real property with their respective properties and incidents, and First. The several kinds of Corthe laws for their regulation and protection, and then we will poreal real proconsider the various kinds of Incorporeal real property. The pertenumerated former are principally rectories, vicarages, glebe land, churches ed. (1) and chapels, church-yards and monuments, manors with their wastes, messuages and dwelling-houses; other buildings and erections, improvements, curtilages, areas, yards, gardens and orchards, nursery-grounds, hothouses, greenhouses, conservatories, land, acres more or less, prima tonsura, aftermath, beastgates, cattle-gates, sheepwalks, and wayleaves, when of exclusive enjoyment; hedges, fences and ditches, woods and underwoods, trees when growing, mines, forests, chases, purlieus, and inclosed grounds for deer, freewarren, warrens, and grounds for breeding conies, preserves, game, decoys, rookeries, land covered with water of every description, whether ponds, watercourses, rivulets, rivers, water and fish, and fisheries therein, dams of fish-ponds, and private fisheries and mill-ponds, and oyster beds, layings, or fisheries. We will then consider a few kinds of corporeal real property, more of a public nature; as sea banks and walls, ports and harbours, lighthouses, beacons, and sea marks, rivers, creeks, and canals, quays, docks, and wharfs, rail roads, highways, bridges, toll-houses, turnpike gates, and weighing engines, and in most of which particular individuals may have a private interest. 1. A Rectory, consisting of a church, glebe lands, and 1. Rectory or tithes, is at common law considered to be corporeal real pro- lands, &c. vicarage, glebe, perty, and ejectment is sustainable for the same, because it includes several substantial and visible things, and in that respect resembles a manor, the church being compared to the mansion-house, the glebe lands to the demesnes, and the tithes to the services. (m) But an ejectment is not sustainable for an advowson in gross, that being merely an incorporeal untangible right to present to an ecclesiastical benefice, and therefore the disturbance of the right is only remediable by quare impedit ; (n) though after a clerk has been inducted, and is in full possession of his church and his parsonage and glebe, if he be (k) 7 & 8 Geo. 4, c. 30, s. 24. (4) For the fullest ancient information on each of these, the works referred to in 1 Thomas Co. Lit. 249, note 44, should be examined. (m) 8 Bar. & Cres. 25; 2 Man. & Ry. 104, S. C.; as to Advowsons, see post. (n) Cro. Jac. 146; 3 Bla. C. 246; see 2 Wlls. 116, ante, 150; see post, "Advowsons." 1. RIGHTS TO REAL PROPERTY. CHAP. IV. evicted or trespassed upon, he may then sustain ejectment or trespass. (0) When the church is full, that is, when there has been a presentation, institution, and induction of a competent clerk, then quare impedit is the proper remedy at the suit of a person who asserts that he ought to hold; but if the clerk were so presented, instituted, and inducted, in consequence of a simoniacal void bargain, then the church is not to be considered full; and the clerk lawfully presented by the king, or bishop, or other lawful patron, may support ejectment against the person who had been so simoniacally presented, and who had obtained possession of the church under colour thereof. (p) The glebe belonging to a parsonage or vicarage cannot be extended under an elegit, (q) &c. By the grant of a "rectory" or "parsonage," without other words, the house, the glebe, the tithes, and the offerings belonging to it, will pass. And by the grant of a "vicarage," every thing belonging to it, as the vicarage house, &c. will pass. (r) In the description in fines, parsonages, rectories, advowsons, or tithes impropriate, will not pass by the names of the "advowson of the church," but by the words "the rectory of the church of S. with the appurtenances." But when the fine is of a presentation to a church only, it must be of the "advowson of the church," and not "with the appurtenances;" and of all vicarages endowed the writ must be of the "advowson of the vicarage of the church of S.," and not "with the appurtenances;" and where no vicarage is endowed, it must pass under the words, "the advowson of the church of S.," &c. (s) 2. Church, chapel, and churchyard. 2. A church or chapel, and churchyard, are terms expressly recognised as in themselves correct technical descriptions of the building and place, even in criminal proceedings; (t) and therefore, though it was formerly considered that a church must be described as a messuage, or as domus Dei, or as the mansionhouse of God, (u) they may now be described in ejectment and in criminal proceedings as a church or chapel, according to the common acceptation; (r) and a parson has a sufficient interest (0) 12 Mod. 420, 433; 8 B. & Cres. 25; 3 Bla. C. 252, 253. (p) 8 B. & Cres. 25. (9) Gilb. Exec. 39; Tidd, 9 ed. 1035. 2 Chit. Cr. L. 23. Sed quere, whether, however indecorous, the act was more than a trespass. Mr. Knapp, a very eminent crown lawyer, considered it to be no punishable offence. (1) 8 Bar. & Cres. 25; 1 Salk. 256; 11 Co. 25, b; 2 Esp. R. 5, 28. Perhaps ejectment lies for a place called the Vestry in D., or for a prebendal stall after collation, 3 Lev. 96; 1 Wils. 11, 14; Adams's Eject. 3 ed. 19; and see post, 168, notes (p) (q). I. RIGHTS TO REAL PROPERTY. therein to enable him to support trespass against a person for CHAP. IV. preaching in his church without his leave, (y) although the right of advowson is strictly an incorporeal right, and in respect of which no action of trespass could be sustained. The freehold of the church and churchyard are considered to be vested in the parson for the time being, and he may in general sustain trespass for any injury thereto; (≈) but he can convey no freebold right therein either for burial or otherwise, unless by deed under seal; (a) and a grant of part of the chancel of a church by a lay impropriator in fee, is not valid in law, and therefore the grantee could not sustain trespass for pulling down his pews there erected. (b) But as to tombstones placed in a churchyard by leave of the parson, trespass, not case, is the proper remedy by the person who so placed the same, against a wrong-doer for removing it. (c) The parson is considered as having the freehold of the church and of the soil of the churchyard, and he may bring trespass against such as dig and disturb it; (d) and a parson is in right of his freehold in his church entitled to vote in the election of members of parliament. The statutes 7 & 8 Geo. 4, c. 29, and 30, particularly protect churches from offences in the nature of larceny, termed sacrilege, and from wilful and malicious injuries. (e) 3. The heir has a property in the monuments and tomb- 3. Monuments. stones in the church or churchyard, and the escutcheons and coat armour of his ancestor there hung up, with the pennons and other ensigns of honour suitable to his degree; and if the parson or any other take them away or deface them, he is liable to an action of trespass from the heir; (g) but the heir has no property in the bodies or ashes of his ancestors, nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains when dead and buried; (h) but the offence of disinterring and selling a dead body is indictable as a misdemeanor at common law; (i) and the power to take dead persons for dissection is now regulated by a recent act. (k) And at common law, if any one, in taking up a dead body, steal the shroud or other apparel, it is felony, (y) 12 Mod. 420, 433. (3) 3 Bing. 136; 2 Car. & P. 34; 2 B. & A. 478; 1 East, 244. (a) 5 Bar. & Cres. 221; 8 Bar. & Cres. 293; 7 Bing. 687. (b) 1 Bar. & Ald. 498. (e) 3 Bing. 136; 2 Car. & P. 34. (d) 2 Bla. C. 429. (e) See observations, post. (f) Ante, 50 to 52 and 95, and supra, note (c). (g) 3 Bing. 136; 12 Co. 105; Co. Lit. 18, b; 2 Bla. C. 428, 429; ante, 50, 51, 52, Right of Burial. (h) 2 Bla. Č. 429. (i) 2 T. R. 733; 2 Leach, 560, S. C. |