Page:The New International Encyclopædia 1st ed. v. 16.djvu/521

* PROPERTY. 453 PROPERTY. tions, came into the cki^sitication of personal property, for the contrary reason that upon the death of the holder they passed not to his heir, but to a personal representative. But this grouping of property relations was only indirectly and somewhat obscurely deter- mined by the feudal system. Its direct effect was to create a wide ami permanent separation be- tween the two systems. This it did by its trans- formation of real property through the doctrine of tenures. Personal property was left, as in other legal systems, subject to ownership in the full sense of that term. But real property could only be "held' of some one else and in subordination to the rights of a superior liolder. We have, there- fore, landholders, not land-owners. The distinc- tion is of fundamental and far-reaching impor- tance. The only owner of land is the king, the .State. The subject can have at most an estate in it, i.e. a status with reference to it. The greatest estate possible — the pure fee simple ab- solute — is less than complete ownership, being a derivative and subordinate right, subject to the superior claims of him — whether a private person or the State — of whom the land is held. Property in land, therefore, is not the land itself, but an estate of longer or shorter duration in the land, together with certain rights of use and enjojnnent. These rights depend upon the nature of the es- tate, whether for life, in fee tail, or in fee sim- ple, and are originally curiously limited, even in such vital matters as alienation and inheritance, by the claims of the superior lord. These feudal restrictions have disappeared with the system which gave them birth, and in recent years the principle of estates has. in a limited form, been extended to personal property, but land is still held of the State, while personal property owes no duty to any one but the owner. See Estate ; Fee ; Feud.l Tenure. There is a further refinement in the common- law conception of property to be noticed in order to make our understanding of it complete. There may be rights not amounting to full ownership and yet recognized as property rights and legally protected as such. .Just as. in the law of real property, several persons may have estates in the same parcel of land — one for years, another for life, another in fee, and so on — so also may a chattel be subject to a divided ownership. The faint line which divides a rightful possession from ownership has been traced in the article on PcssEssiox. It appears most plainly in our law in the doctrine of pledge. The pledger of a chat- tel does not lose his property therein : but the pledgee gains something more than a mere right of detainer. He also has a "property' in the article pledged, distinguished as a 'spicial' property, the pledger or owner (if we may still call him so) having the "general' property therein. Property is thus, like owTiership in Blackstone's famous passage, a complex of rights, all of which may be united in one and the same individual, or which may he divided up among several jiersons. In very much the same way may the numerous and important rights in another's land (jura in re. atieiia), such as easements, profits, and the like, be regarded. Though falling far short of ownership of the land affected by them, they are true property rights, being protected from dis- turbance by any person whatsoever and not only against the owner of the land. Here, then, we reach the outermost limits of property rights. Other rights there are affecting land or goods which do not attain to the dignity of proijerty. Of this nature is the ri»ht of the disseiser who is shut out of his land oy an ad- verse possession, the right of entry for condition broken, the right to enforce a covenant running with the land, and the extensive class of rights known as equitable easements. These are all "mere rights.' as the common law designates them, rights in personam, available against a spe- cific individual, and not property rights, which are, strictly speaking, always rights in rem, as- serted in the face of the whole world ,and capable of being infringed by any one who chooses to take the consequences. The classification of property as corporeal and incorporeal is also peculiar to our legal system. Of course it has no rational basis. All rights are incorporeal, i.e. intangible, and the things which are the subject-matter of property rights are usually tangible corporeal things. It may, in- deed, be admitted that such projjerty as advow- sons, tithes, offices, and the like, as well as the more modern forms of property denoted by the terms patent rights and copyrights, are incor- poreal in the strictest sense of the term. But in Blackstone's use of the expression it includes easements, commons, and other profits d prentJre, and all future estates in land, as reversions and remainders. Thus the estate of a tenant for life or years is corporeal property, whereas that of the landlord, being for the time dissociated from the possession of the land itself, is described as incorporeal. But the classification was only a convenient expression for such interests in real property as "lay in livery' ( i.e. were susceptible of physical control and therefore of delivery) and such as "lay in grant' and could be transferred only by deed and not by livery of seisin. It did not, therefore, aim at philosophic completeness and has never been extended so as to include per- sonal property. Only the most important of the incidents of property can here be referred to. Wliere ovm- ership is absolute and undivided, the right to use and enjoy one's own, whether real or personal property, is limited only by the rule that requires a man to use his property in such ways as not to injure his neighbor. Where the ownership is divided, however, the right of enjoyment is hedged about with numerous and complicated restric- tions and there is law of waste and of trover to protect the o%Tier who is out of possession. Though now bound up with the very conception of property, the unlimited rights of alienation and of inheritance have not always been recog- nized by our law, even with respect to personal property. In the case of real property, particu- larly, those rights, now complete, were wrested with difficulty and only after many years of ef- fort from the feudal system. The right to trans- mit lands by will was only conceded by Parlia- ment in 32 Hen. VIII. (1.5"27). For other incidents of property, see Emblement; Fixtures : Waste. For modes of acquiring property, see Acces- sion: Alien.tion : Conveyance: Distribution; Grant: Inheritance: Occupancy: Will. The authorities are numerous. Consult espe- cially Blackstone. Commentaries on the Lairs of Enriiand: Leake. Digest of the Law of Propertii in Land (London. 1874); Williams. Real Property (I9th ed.. London. 1000); Williams. i^ersoHa/ Propertii (loth ed., London, 1900); Schouler,