servitudes. § 151. The extent of these servitudes is determined by Extent of the terms of the grant, or the nature of the possession by which they were acquired. tion of ing ease § 152. The land to which the easement is attached is Designacalled the dominant estate; the land upon which the bur- estates. den or servitude is laid is called the servient estate. In Apportioncases of partition of the dominant estate, the burdens ments. must be apportioned, according to the division of the dominant estate, but not in such a way as to increase the burden upon the servient estate. The latter clause is added to meet the objection that common of estovers cannot be apportioned because so doing would multiply the burden. Livingston a. Ketcham, 1 Barb., 592. owner. § 153. The owner of land in fee has the right to the Rights of surface and to everything beneath or above it; and may use the same in any manner he pleases, doing no injury to the property or person of another. CHAPTER II. BOUNDARIES. SECTION 154. Boundaries by water. 155. Boundaries by ways. 156. Monuments. 157. Feuces. 158. Lateral support. by water. § 154. When land borders upon tide-water, the owner Boundaries of the upland takes to high-water mark; when it borders upon a navigable lake where there is no tide, the owner takes to the edge of the lake; when it borders upon a lake not navigable, or a stream where there is no tide, the owner takes to the centre of the lake or stream. 155. An owner of land, bounding on a road or street, Boundaries except in the city of New York, is presumed to own to the centre of the way, but the contrary may be shown. by ways. § 156. Coterminous owners are bound equally to main- Monuments tain the boundaries and monuments between them. Fences. Lateral support. § 157. They are also bound equally to maintain fences; unless one of them chooses to let his land lie open, in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value at that time, of any division fence made by the latter. 1 R. S., 353, § 31. The mode of determining controversies as to fences is prescribed by the POLITICAL CODE. § 158. Coterminous owners are each entitled to the lateral support which his land by nature receives from the land of the other. CHAPTER III. APPLICATION TO REAL PROPERTY, OF RULES RESPECTING 159. Except as otherwise provided in this CODE, real property is subject to the same rules as personal property. TITLE II. CREATION AND DIVISION OF ESTATES. The provisions of this title are from 1 R. S., 722. SECTION 160. Enumeration of estates. 161. What estate a fee simple. 162. Estates tail abolished; their nature declared. 163. Certain remainders valid. 164. Freeholds; chattels real; chattel interests. 165. Estates for life of a third person, when freehold, &c. 166. In possession or expectancy. 167. Definitions of those estates. 168. Enumeration of estates in expectancy. 169. Future estates. 170. When they are remainders. 171. Reversions. 172. Vested and contingent future estates. 173. Future estates void, which suspend power of alienation. 174. How long it may be suspended. 175. Contingent remainder in fee. 176. Limitation of successive estates for life. 177. Remainder upon certain estates for life. SECTION 178. When remainder to take effect in certain cases. 179. Contingent remainder on a term of years. 180. Remainder of estates for life. 181. Meaning of "heirs" and "issue" in certain remainders. 183. Remainders, future and contingent estates, how created. 185. Certain future estates not to be void. 186. Remainder upon a contingency. 187. Heirs of a tenant for life, when to take as purchasers. 188. Construction of certain remainders. 189, 190. Posthumous children. 191. Expectant estates not to be defeated, &c. 192. Remainders not to be defeated in certain cases. 193. Qualities of expectant estates. 194. Future profits of real property. 195. Accumulation of profits of real property. 196. Other directions, when void wholly or in part. 197. In certain cases who entitled to profits of real property. 198. Expectant estates, when deemed created. 199. Certain expectant estates abolished. 200. Estates in severalty, joint tenancy, and in common. tion of es § 160. Estates in real property are divided into estates Enumeraof inheritance, estates for life, estates for years, and estates tates. at will. The term "estates by sufferance" has been omitted, as it is proposed to designate all such as estates at will. § 161. Every estate of inheritance, notwithstanding the abolition of tenures, continues to be called a fee simple, or fee; and every such estate, when not defeasible or couditional, is called a fee simple absolute, or an absolute fee. 162. Estates tail are abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, is a fee simple; and if no valid remainder is limited thereon, is a fee simple absolute. 163. Where a remainder in fee is limited upon any estate, which would by that law be adjudged a fee tail, such remainder is valid as a contingent limitation upon a fee, and vests in possession, on the death of the first taker, without issue living at the time of such death. What es simple. tate a fee Estates tall abolished; their naturo declared. Certain revalid. mainders Freeholds; chattels real; chattel inte rests. Estates for life of a third person, when § 164. Estates of inheritance and for life, are called estates of freehold: estates for years are chattels real: and estates at will are chattel interests, but are not liable as such to sale on execution. § 165. An estate during the life of a third person, whether limited to heirs or otherwise, is a freehold only during a freehold, the life of the grantee or devisee. After his death it is a chattel real. &c. In possession or expectancy. Definitions of those estates. Enumeration of es tates in expectancy. Future estates. When they are remainders. Reversions. Vested and contingent future estates. § 166. Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. § 167. An estate in possession exists, when the owner has an immediate right to the possession of the land. An estate in expectancy exists when the right to the possession is postponed to a future period. § 168. Estates in expectancy are divided into: 1. Estates commencing at a future day, denominated future estates; and, 2. Reversions. § 169. A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time, or otherwise, of a precedent estate, created at the same time. § 170. Where a future estate is dependent on a precedent estate, it may be called a remainder, and may be created and transferred by that name. 171. A reversion is the residue of an estate left in the grantor, or his successors, or in the successors of a testator, commencing in possession on the determination of a particular estate granted or devised. 8172. Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the property, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which, they are limited to take effect, remains uncertain. § 173. Every future estate is void in its creation which suspends the absolute power of alienation for a longer period than is prescribed in this title. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. § 174. The absolute power of alienation cannot be suspended, by any limitation, or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case mentioned in the next section. remainder § 175. A contingent remainder in fee may be created on Contingent prior remainder in fee, to take effect on the event that the in fee. persons to whom the first remainder is limited die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined, before they attain their full age. § 176. Successive estates for life cannot be limited except to persons in being at the creation thereof; and where a remainder is limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto are void, and upon the death of those persons the remainder takes effect in the same manner as if no other life estates had been created. § 177. No remainder can be created upon an estate for the life of any other person than the grantee or devisee of such estate, unless such remainder is in fee; nor can a remainder be created upon such an estate in a term for years, unless it is for the whole residue of such term. Limitation of succes sive estates for life. Remainder tain estates upon cer for life. mainder to take effect in certain § 178. When a remainder is created upon any such life When reestate, and more than two persons are named as the persons during whose lives the life estate shall continue, the cases. remainder takes effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced. |