I. RIGHTS TO REAL CHAP. IV. of the owner pass to the executor or administrator for the benefit of creditors or legatees, or next of kin. There is one PROPERTY. exception to this rule as regards an advowson, when the executor may be entitled to present, and not his heir, as in the case of an advowson appendant to a manor where the lord dies leaving the church vacant. (m) So with respect to tithes, there cannot be an ancient descent, because laymen were formerly incapable of holding them before the dissolution of the monasteries. (n) So a devise of incorporeal real tenements or hereditaments must be attested by three witnesses, whereas in the case of personalty and copyhold no attestation is required. (o) In observing upon the words "appendant and appurtenant," we have seen when the different kinds of incorporeal rights to real property may with propriety be claimed as appendant or appurtenant to particular and what descriptions of corporeal real property. (p) Secondly. Several kinds of in corporeal real property. 1. Ancient lights.(s) Incorporeal hereditaments are of two descriptions, the first usually annexed to, or used and enjoyed with, some particular corporeal real property, and either essential to or useful in the enjoyment thereof, such as ancient windows, pews, (q) commons, private ways or private watercourses. The second may be enumerated rights wholly unconnected with and independent of the possession or enjoyment of any real corporeal property, such as advowsons, tithes, offices, dignities, franchises, corrodies, pensions, annuities, (r) rents and services, rent-charge, rent-seck, quit rents, fee farm rents, rack rent, and corn and other rents. 1. An ancient window may be classed under incorporeal hereditaments, for the right to the enjoyment of it may be (m) 8 Bing. 490, 498, 501; 7 B. & Cres. 113; Toller's Exec.; see post, p. 217. (n) See 2 New R. 491, where a rectory in Kent, formerly belonging to one of the dissolved monasteries, having been granted by Hen. 8, to a layman, to be holden in fee by knight service in capite, it was held that the lands and buildings thereon were descendible according to the custom of gavelkind, but that the tithes descended according to the common law. See also H. Chitty on Descents, 200. (0) 29 Car. 2, c. 3, s. 5; but note, that act only names lands and tenements, omitting "hereditaments." (p) Ante, 153 to 158. (4) See 2 Bla. C. 21. It will be ob served that Blackstone singularly mentions pews as partaking of personal property, descending by custom. (r)" Annuities" is a term now technically applicable only to such annual payments as are not charged upon or issuing out of land, and cannot therefore be styled incorporeal hereditaments, though so stated by Blackstone. (s) See in general the cases collected, 2 Chit. Pl. 5th ed. 768, 769, in notes, and see 2 Bla. C. 403, and notes. Black stone singularly treats the right to an ancient window amongst rights to personal property by occupancy. See further, post, chap. viii., as to injunctions to prevent the obstruction of an ancient light, and tit. Prescription. I. RIGHTS defined to be a right to free access of light and air over land CHAP. IV. of another person, adjoining to the building in which the window is placed, so as to prevent the owner of such adjacent land from building or using his land so freely as he otherwise might have done, and precluding him from so enjoying it as to obstruct in any sensible degree the light or air from entering through such window or other apperture. The uninterrupted permission by an owner in fee to his neighbour thus freely to use such window for twenty years, at common law, afforded presumption of a grant by deed, founded upon adequate consideration, of the free use of the light and air over the land of the adjacent owner through such window, (t) and now by express enactment such long enjoyment creates an absolute and indefeasible right, so that after the lapse of that time no building could legally be erected on the adjacent ground, occasioning any sensible diminution of the light and air, unless it can be shown that the enjoyment originated by a qualified consent or agreement, expressly made or given by deed or in writing, so as to exclude the presumption of an absolute grant; and consequently, every owner of property adjoining a window that has not been erected nearly twenty years, should take care within that time either to obstruct it, or have some writing signed by the owner of the window, qualifying his otherwise perfect right. (u) On the other hand, if an ancient window has been shut up for more than twenty years, it loses its privilege, as that nonuser affords a presumption of a release of the prior right. (r) But the circumstance of an ancient window having been built contrary to the Building Act, affords no defence to an action against a private individual for obstructing it. (y) Where the owner of an entire plot of ground builds two or more houses upon it, and afterwards separates the ownership or occupation, each party taking a part impliedly engages not to alter or affect the existing state of the buildings, and in that case even six years, or less, will give as perfect a right to the free use of a modern window, as in other cases twenty years adverse enjoyment would create. (2) The remedies for injuries to ancient windows are abatement of the nuisance or by an (t) But such a presumption is excluded by the custom of London, 3 Swan. 333. See 1 Mood. & M. 350, as to this custom; but see 2 & 3 W. 4, c. 71, affecting all such customs. (u) 2 & 3 W. 4, c. 71, s. 3, &c.; 3 Campb. 82. See the statute stated fully, post," Prescription,” and in chap. ix. as to Limitations. If the use of the window commenced during a tenancy for life, 11 1. RIGHTS TO REAL CHAP. IV. action on the case, if the obstruction or other nuisance was committed off the land of the owner of the window, or by an PROPERTY. action of trespass, if the injury were by fastening a wooden or other obstruction into the owner's wall or window, and the action might be repeated even by a reversioner (a) for every continuance of the nuisance. But when the right to an ancient light is about to be obstructed, the best course is immediately to file a bill, and move a Court of Equity for an injunction to prevent the erection of the injurious building. (b) Where an old house is pulled down wherein were ancient lights, and a new one built, the lights in the new house must, it has been said, be in the same place, and of the same dimensions, and not more in number than the lights in the old house, (c) though it should seem on general principles, that a new building on the same scite would in general be entitled to the same rights as the former.(d) It has been held, that if a building, after having been used twenty years as a malthouse, is converted into a dwelling-house, it is in its new state entitled only to the same degree of light as was necessary to it in its former state, and that the owner of the adjoining ground might therefore lawfully erect a wall which prevented the admission of sufficient light for domestic purposes, if what was still admitted would have been enough for the making of malt. (e) 2. Pews. 2. Pews. The right to sit in a pew is treated by Blackstone as of à personal nature, that may descend by custom immemorial, without any ecclesiastical concurrence, from ancestor to heir; but it seems clearly to be at least an incorporeal interest in real property. (f) It is not an exclusive title to the pew itself, as a corporeal real estate, but is a right merely to sit or be there at particular times, for the specific purpose of attending divine service; for which reason trespass is not sustainable against a stranger for sitting therein, but case is the proper remedy; (g) though for actually breaking and injuring the wood-work of a pew, it has been said that trespass might be sustained by the owner against a mere wrong-doer. (h) And (a) Shadwell v. Hutchinson, 2 B. & Adolp. 97; 9 Bar. & C. 591; 1 Mood. & M. 350. (b) 2 Russ. R. 121, and post, chap. viii. (c) 2 Vern. 646, sed quære. Chit. Desc. 259. It appears to descend or pass by alienation of the house, not by any custom, but of common right; and see 2 B. & Adolp. 164, as to the subdivision of this right between several occupiers. (g) 1 T. R. 430; 5 B. & Ald. 361, per (d) Ante,151; 1 Campb. 322; 3 Campb. Holroyd, J.; 8 B. & C. 294. 81; 2 B. & Adolp. 164. (e) 1 Campb. S22, 323. (f) 3 Inst. 202; 12 Coke, 105; H. (h) 3 Bing. 137, 138; 2 Roll. R. 140; Palm, 46. CHAP. IV. 1. RIGHTS TO REAL an action of trespass for breaking and entering a chapel and destroying the pews will lie at the suit of a perpetual curate of an augmented parochial chapelry, even against the chapel PROPERTY. warden. (i) The right to sit in a particular pew in a church arises either from prescription, as appurtenant to a messuage, and which presumes a faculty, or from an actual faculty or grant from the ordinary, who has the disposition of all pews de novo, and which are not claimed by prescription. (k) In an action upon the case at law for a disturbance of the enjoyment of a pew in the body of the church, if the plaintiff claim it by prescription, he must state it in the declaration as appurtenant to a messuage in the parish. (1) But it is said that a pew in the aisle or chan-' cel of the church may be prescribed for in respect of a house out of the parish. (m) This prescription may be supported by an enjoyment for thirty-six years, and perhaps any time above twenty years. (n) But where a pew was claimed as appurtenant to an ancient messuage, and it was proved that it had been so annexed for thirty years, but that it had no existence before that time, it was held that this modern commencement defeated the prescriptive claim. (o) In an action against the ordinary the plaintiff must allege and prove repairs of the pew. (p) But a possessory right to a pew is sufficient to sustain a suit in the Ecclesiastical Court against a mere disturber. (q) The faculty and a prescription, which supposes it, cannot be granted of a pew in the body of the church to a man and his heirs, but it must be in respect of a messuage within the parish. (r) The right to sit in a pew may be apportioned; and therefore where by a faculty reciting that A. had applied to have a pew appropriated to him in the parish church in respect of his dwellinghouse, a pew was granted to him and his family for ever, and the owners and occupiers of the said dwelling-house; and the dwelling-house was afterwards divided into two; it was held Young & J. 583; 2 Chit. on Pleading, (r) 1 T. R. 428; Forrest. R. 14; 5 B. & C.1, ante, 155, note (k), supra, (k)(l). P 1. RIGHTS TO REAL PROPERTY. CHAP. IV. that the occupier of one of the two, though constituting a very small part of the original messuage, had some right to the pew, and in virtue thereof might maintain an action against a wrongdoer. (s) If a faculty for annexing a pew to a messuage has been obtained by surprise or undue contrivance, it may be revoked. (t) But a sentence in the Ecclesiastical Court or Court of Arches, relative to the right to a pew, is not conclusive evidence of the plaintiff's right in an action for disturbance, even between the same parties. (u) 3.Commons.(x) 3. Commons. The rights to use these are incorporeal hereditaments, being merely rights to take part of the produce or profits of another's land or water therein, such as to feed cattle, to dig turf, to cut wood, to catch fish, or the like, and are therefore principally of four sorts, viz. common of pasture, turbary, estovers, or piscary, being no right to the land itself, but merely to a part of the produce, to be taken in a certain manner. (y) These we have seen are distinguishable from beast-gates, cattlegates, fold-courses, &c. which are exclusive corporeal rights to the pasture upon certain lands. (2) Being incorporeal interests not expressly named in the statute 43 Eliz. c. 2, these mere rights of common are not in general directly and eo nomine or separately rateable to the poor, though in effect they are so rated when attached to land, because the land to which they are appendant or appurtenant may be rated higher in respect of the annual value being increased by the circumstance of (s) 2 B. & Adolp. 164. (t) Bull v. Jones, 2 Hagg. Ecc. R. 417. (x) As to appendants and appurten- In general, to sustain a common of pas. ture, a party should have land, and not merely a house without a curtilage, 5 T. R.; 46; but see 5 Taunt. 244. A copyholder must prescribe in the name of the lord of his manor for common on another manor, 5 Taunt. 365; Saund. Rep. Index, Common. Twenty years' adverse exclusion bars the right, 2 Taunt. 160; and on the other hand, twenty years' uninterrupted user in general gives the right, 2 & 3 W. 4, c. 71. As to the right to approve, 2 T. R. 391; 3 T. R. 445; 1 Stark. 102; Rast. Entr. 626, 627; Thomps. Ent. 453. Under the inclosure act, within what time to appeal against allotment decision, 3 M. & S. 127, What title to an allotment before award, 18 Ves. J. 207; 2 Bar. & Ald. 171. (y) All sorts of common bear a resemblance to common of pasture; but in one respect they go further, common of pasture being a right only of feeding on the herbage of the soil; but common of turbary and others are a right of taking away the very soil itself, 2 Bla. C. 34, 35. () Ante, 181, 182; Roll. Ab. 402; Cro. Car. 432;7 T. R. 671; 1 T. R. 137 ; 2 T. R. 452; 2 Stra. 1084. |