which there can be an ownership, the term property is often applied to the object in which a right of property exists.*

4. The ancient division of property was not into things real and things personal, but into things movable and things. immovable. When an article of movable property was stolen or in any manner taken from its owner, he could go to a court of law and demand the restoration of his property. But the restoration of the property often proved difficult, or even impossible, for, the property being movable, it was capable of being destroyed or hidden or made away with in various ways. Consequently, the court more frequently awarded the owner a sum of money as damages than it restored the actual property lost. The suit was brought against the person who had in any manner obtained possession of the property; for that reason it was called a personal action, and the thing lost, personal property.

On the other hand, if a man were deprived of his immovable property, of which land is a type, it was always possible to recover the identical, or the real, thing lost, since it could not be moved away. Since the real thing lost could be recovered, the action, or suit, brought for this purpose was called a real action, and it was because real actions were remedies for the recovery of lands that land became classed as a real thing; and because of its permanent nature, the terms real property, real estate, and realty are interchangeably used to denote land."

5. Personal Property. - Personal property is the right or interest which a man has in things personal. The term personal property is applied to all those objects and rights over which ownership may be exercised that do not concern land, and also all interests in land that are of certain and fixed duration. These objects and rights, like the corresponding objects and rights of real property, are of two kinds, corporeal and incorporeal.

* 102 Ill. 64-77 (1882); 109 Ind. 47-58 (1886). 5 Mitchell, Real Est. and Conv., pp. 1-3.

6 Bouv. Law Dict., Vol. 2. p. 409.

6. Corporeal personal property is such as has an actual material existence, and may be seen and handled; for example, a book, a horse, or a vehicle. These are called choses in possession, from the old French law term chose, which, in modern French, means a thing, and are more properly termed chattels, though the latter term is frequently used to designate all property which is not real. The term corporeal things is also used to denote this kind of personal property.

7. Incorporeal personal property includes all the rights which grow out of tangible personal property which is not in the possession of its owner. They are of two classes. Rights of the first class are usually called choses in action, and include those rights which flow from the infinite variety of contracts, covenants, and promises which confer on one party a right to recover a personal chattel or a sum of money from another, by action. Rights of the second class include the even greater variety of rights to recover damages for wrongs of all sorts, as for example, a right to recover for personal injuries, and to set aside a fraudulent conveyance. These are usually designated as personal rights, or rights of action, claims, or demands, and are hereinafter classified and explained.'

8. Chattels real are all interests in land, the duration of which is fixed and certain. Thus, a lease of land for ninetynine years is personal property because the exact time at which it will terminate is known. Originally, a tenant for a specified term of years, if turned out of his property by a third party, had no right to recover the land from the ejector, his only redress being a personal action against his landlord for breach of his agreement for quiet possession. Subsequently, the

tenant was given the right to recover the land, but a term for years is still considered personal property. Chattels real, although termed chattels, are properly classed with incorporeal personal property.

78 How.(U.S.) 449 (1850); see Personal Property, Incorporeal Personal Property, infra.

REAL PROPERTY

9. Real property, real estate, or realty, consists of lands, tenements, and hereditaments. Tenement signifies anything that may be holden. The term is derived from the feudal system and comprises not only substantial things, such as houses, but also things of an unsubstantial kind, offices, rents, and the like, provided they be of a permanent nature.

10. A hereditament is anything heritable; anything that descends on the death of the owner to his heir. Both lands and tenements are included in the term hereditaments. Tenements may or may not be land, but all lands and tenements are hereditaments. Hereditaments are either corporeal or incorporeal. Corporeal are such as exist in at material form; incorporeal, such as do not have a material existence. They are treated more specifically elsewhere in the present subject.

11. Lands. - The term land includes the surface of the earth, with all above and beneath it. It is classified as land natural, land by accession, and land by construction of law. When one is the absolute owner of land, he owns everything from the center of the earth to the highest heavens, the earth, stones, and minerals in one direction, and the herbage, trees, and space unoccupied in the other direction. The ownership of land primarily includes that of the minerals underlying it. The land and the minerals may, however, belong to different owners. The same rule applies to the ownership of oil or gas.

12. Water is a species of real property. The owner of land is not the proprietor of the water which runs through it; he has a property in the land over which the water passes, but his right to the water is only to use it for the gratification of his ordinary wants. The owner of the land below him, through or by which the water takes its accustomed and natural course, has the same right to the water as the upper proprietor has, and the rights of all the riparian proprietors

8 Mitchell, Real Est. and Conv., p. 14.

upon any stream are, in the eye of the law, equal with respect to the water."

13. Land by Accession. -Things which are fixed or firmly attached to the soil, houses and other buildings, fences, and trees, are comprised in land by accession. By a rule of the common law, anything that is fastened to the soil belongs to and is part of the land or realty. On the other hand, things which are capable of being moved and taken away are personal property or chattels. Building material, such as lumber or stone, lying loose on the soil, are personalty, but they become realty, or part of the land, when erected into a building. So, if a tree, which is realty, or part of the land, while growing on, or attached to, the soil, be cut down and sawed or cut into lumber, its character changes from realty (land) into personalty (chattels or personal property)."

14. Fixtures. The term fixtures is applied to things comprised in land by accession when they come within the description of things affixed to the soil; but the term has a twofold meaning. Sometimes it is applied to an article which, though originally personal property, has become realty by being physically affixed to the latter. At another time it is used to denote an article which, though physically joined to realty, may be removed from it at the will of the person who affixed it. The former sense is the one in which the term is generally used."

15. In determining whether an article is a fixture or not, the following circumstances should be considered: (1) Is there actual annexation to the realty or something appurtenant to it? (2) Is the article appropriate to the use or purpose of that part of the realty with which it is connected? (3) What was the intention of the party making the annexation? Did he propose to make the article a permanent accession to the freehold? This intention is inferred from the nature of the article affixed, the relation and situation of the party making 111 Ohio 511 (1853); 30 Pa. 185 (1858).

Mitchell, Real Est. and Conv., p. 15. 10 Ibid., p. 17.

the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made. 16. Originally, an article was not a fixture unless it were physically joined to the ground by removing the soil or making it fast to something already in the ground." The rule now is, that if the article be indispensable in carrying out a specific business, it is realty, whether joined to the land or not; and this is so whether the article be kept in place by its own weight, or be slightly attached to the realty for the purpose of steadying it."

When a building is erected for a particular purpose and machinery is placed therein to carry out that purpose, and is reasonably necessary therefor and so placed as to give the idea of permanency, it will be considered a fixture, irrespective of its weight and size."

Where the principal part of machinery is actually fastened to the realty, such part of it as is not physically annexed, but which if removed would leave the principal thing unfit for use, and could not, by itself, be used elsewhere, is considered part of the realty. Accordingly, capping machines and a work-table, not actually annexed, but essentially necessary to the working of the principal machinery, are fixtures."

17. Trade, agricultural, domestic, or ornamental fixtures are articles which, though originally personal property, yet when affixed by a tenant to the realty, cease to be personalty by becoming part of the realty. It is in the power of the tenant to reduce them to the state of personal property again by severing them during his tenancy, but until they are severed they are a part of the realty."

Trade fixtures are articles which the tenant has affixed to the realty for the purpose of carrying on his business; such as an office counter, an iron safe, platform scales, a building to cover machinery, and pans, furnaces, boilers in a factory."

123 De G. F. & J. (Eng.) 381 (1862).

132 Kay & John. (Eng.) 536 (1856); 88 Pa. 368 (1879); 2 Flipp. (U. S.) 599 (1880).

14 42 N. J. Eq. 218, 225 (1886).

15 67 Md. 44 (1887).

162 Sm. L. C. 223; 7 Taunton (Eng.) 188 (1816).

172 Colo. 273 (1874); 4 Lea (Tenn.) 329 (1880); 147 Mass. 479 (1888).