Slike strani

to English jurisprudence. Lawyers gave their earliest and latest application to the text of Littleton; every section and sentence was weighed, and every proposition considered in all its consequences; it was translated, commented, analyzed; every method was contrived to gain a complete knowledge of its contents. Perhaps no book, in any science so confined as the municipal laws of any country may be, has more employed the labors of the learned and industrious. A writer, who was himself one of the greatest ornaments of the law, and whose name never appears greater than when accompanied with that of our author, furnished the world with a very copious and minute commentary on this book; in which he has carried his attention to the import of every word so far as to make interesting remarks on his very et caeteras. The fame of Littleton has not been confined to this island. As the Norman lawyers made Glanville a model upon which to form their coustumier, and give system to their jurisprudence, a modern writer of that country has lately composed a comment on Littleton, as the best help towards illustrating the customs and laws of that duchy.”

Sir Edward Coke, the great commentator upon the work of Littleton was Chief Justice of England during the early part of the seventeenth century and a leader of the popular party in the later parliament in the reign of James I. He was, in addition, one of the greatest of English law writers, his chief works being his reports which covered the period from 1600 to 1616, and his Institute written in four parts, the first of which included his commentaries on the work of Littleton.

• Reeves' History of English Law, pages 153 to 156.

On matters of a more modern character, the work generally referred to has been that of Warvelle on Real Property SECTION 6. OWNERSHIP, POSSESSION AND ENJOYMENT.

The various rights in real estate are included under the three expressions, ownership, possession and enjoyment. The idea conveyed by each of these three terms is well expressed by the following extracts from one of the latest works on this subject:

"In our example the student will not fail to have observed a basic idea which pervaded every part and colored every phase, and this idea or notion, may be crystallized into the word ownership. The expression is convenient; it represents the ideas involved in the sum of the aggregations of rights which may be had in land better than any other word that can be used, yet it is merely an abstraction. It eludes exact and scientific definition, and legal lexicographers admit their inability to fix its precise status. It has been described by one writer as 'the relation of a person to a thing,' by another as 'a plenary control over an object,' by another as the 'entirety of the powers of use and disposal allowed by law,' and by still another as 'a right over a determinate thing, indefinite in point of use, unrestricted in point of disposition, and unlimited in point of duration.' Perhaps the best definition is that which describes it as 'a power residing in the land owner as its subject exercised over the land, as its object, and available against all other men.' None of these descriptions are altogether satisfactory, particularly when applied to the ownership of land, and we are compelled to seek a definition rather in the enumeration of its attributes than in the term itself. But in spite of our inability to strictly define the term, it yet definitely represents fixed ideas of property. It implies powers of use and disposal; it carries with it the idea of possession, it indicates rights of enjoyment, and further indicates that all of these rights are exclusive of corresponding rights in others. But the power of user may be qualified in many ways; the power of disposal may be limited; one may be the owner and yet not entitled to possession; and the rights of enjoyment may be abridged or suspended.” ?

"From the same example we may gather another idea which finds expression in the term possession. This also is a legal abstraction, in no way dependent on physical conditions, control or detention, notwithstanding that we are accustomed to associate it with some one or all of these phases. Possession is generally regarded as an attribute of ownership-in fact, that it is inherent in onership. We have seen, however, that a person may be the owner and yet not be entitled to possession, while, on the other hand, a person may be in possession who is not the owner. This enables us to draw a strong line of demarcation between ownership and possession, although the two are often confounded." 8

“There is still another idea involved in our example which is quite adequately expressed in the word enjoyment. This also is an attribute of ownership and is inseparably connected with possession, yet it represents ideas which neither of those terms fully cover. A grant is made to a party of lands which he is to have (own), possess, and enjoy,' and these three terms seem to express in all its fullness the sum of the aggregate of proprietary rights. Warvelle on Real Property, pages

• Warvelle on Real Property, page 8 Warvelle on Real Property, page



SECTION 7. LAND. Real property is said to include land, tenements, and hereditaments.

"Terra, land, in the legal signification, comprehendeth any ground, soil, or earth whatsoever; as meadows, pastures, woods, moors, waters, marshes, furses, and heath. Terra est nomen generalissimum omnes species terrae; but properly terra dicitur a terendo, quia vomere teritur; and anciently it was written with a single r; and in that sense it included whatsoever may be ploughed; and is all one with arvum ab arando. It legally includeth also all castles, houses, and other buildings, for castles, houses, etc., consist upon two things, viz., land or ground as the foundation or structure thereupon; so as passing the land or ground, the structure or building thereupon passeth therewith. Land is anciently called fieth; but land builded is more worthy than other land, because it is for the habitation of man, and in that respect hath the precedency to be demanded in the first place in a praecipe, as hereafter shall be said. And therefore this element of the earth is preferred before the other elements, neither in the water, air or fire. For as the heavens are the habitation of Almighty God, so the earth hath he appointed as the suburbs of heaven to be the habitation of man; caelum caeli domino, terram autem dedit filiis hominum; all the whole heavens are the Lord's, the earth hath he given to the children of men. Besides, everything as it serveth more immediately, or more merely for the food and use of man (as shall be said hereafter), hather the precedent dignity before any other. And this doth the earth; for out of the earth cometh man's food and bread that strengthens man's heart, confirmat cor hominis, and wine that gladdeth the heart of man and oil that makes him a cheerful countenance; and therefore terra olim Ops mater dicta est, quia omnia hae opus habent ad vivemdum And the divine agreeth, herewith; for he saith, patriam tibi et nutricem, et matrem, et mensam, et domum posuit terram Deus, sed et sepulchrum tibi hanc eandem dedit. Also, the waters that yield fish for the food and sustenance of man, are not by that name demandable in a praecipe; but the land whereupon the water floweth or standeth is demandable; as for example, viginti acras terrae aqua coopertas; and besides, the earth doth furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely, with gold, silver, brass, iron, tin, lead, and other metals, and also with great variety of precious stones, and many other things for profit, ornament and pleasure. And lastly, the earth hath in law a great extent upwards, not only of water, as hath been said, but of air and all other things, even up to heaven, for cujus est solum est usque ad caelum, as is holden, 14 H., 8 fo 12; 22 H., 6, 58; 10; 3; 4; 14. Registrum origin and in other books." 10


Tenements is a larger term than land and includes everything which might be holden under the Feudal system.

Tenementum, tenement, is a large word to pass not only lands and other inheritances which are holden, but also offices, rents, commons, profits apprender out of lands, and the like, wherein a man hath any frank20 Coke's Institute, Vol. I, pages


« PrejšnjaNaprej »