Page:Harvard Law Review Volume 8.djvu/400

384 384 HARVARD LAW REVIEW. We pass now to the Proprietary (" property ") rights. The field to be covered is a limited one ; the largest part of property law be- ing concerned with the subdivisions of rights and with the creation, transfer, and extinction of rights. A simple and workable line of division seems as follows : Conceive an object of property to be owned in fee simple, in severalty, unaffected by trust, mortgage, or easement; then the determination of the scope of this right, the statement of the harms against which it is the essence of the right of property to give protection, will properly fall under Torts ; the description of the various subdivisions, such as estates, ease- ments, mortgages, trusts, and joint titles, as well as the modes of creation, transfer, and extinction of the general property-right and of its different subdivisions, may be dealt with as distinctively Property law. The grouping of the objects of the property right, then, for the purposes of Torts, seems to involve three kinds: (i) fixed, in- cluding land (with plantations and houses), stationary water, and aerial space; (2) detached, including portable things; (3) fluent, or accedant, including three sorts now to be mentioned. This grouping rests on similarities of policy within each group, and not on superficial resemblances. 12. The last class may be looked at now, from its analogies to the societary rights. There are three kinds : {a) There is a right to such benefit as may come by the resort of wild animals to our land, as game to be caught or shot, as furnishing eggs or other useful products, etc.; the right is to have them resort free from interference by the defendant, except so far as allowed by the limi- tations of the Excuse element.^ {p) There is a right to have flow- ing water of certain sorts come to our land in its normal quantity and quality, a right that it shall arrive free from interference by the defendant, except so far as allowed by the limitations of the Excuse element (reasonable use, etc.).^ {c) There is a right to have the effects of transmitted electrical force produced in and upon our premises, a right that the effects of means set in operation to that end shall freely be produced, except, as before, so far as 1 Keeble v. Ilickeringill, ii East, 574, note; 11 Mod. 74, 130. 2 " He has the right to have it come to him in its natural state," etc. Lord Wensley- dale, in Chasemore v. Richards, 7 H. L. C. 382. Since there is no property in the water itself before or after its passage through the plaintiff's land, the analogy to the case of wild animals seems the strongest. " Easement " seems inaccurate, for easements are partial or limited rights, and nobody has for running water any greater rigiit than the one we now are considering.