wherever a perpetual inheritance is granted, which arises out of lands, or is in any way connected with, or, as it is emphatically expressed by Lord Coke, exercisable within it, it is that sort of property the law denominates real."

The principle of these cases was followed, and possibly extended, by the Supreme Court of Connecticut, in 1818, in the case of Welles v. Cowles, 2 Conn. 567, in which it was held that shares of an incorporated turnpike company are real estate. The right to the tolls, said the court, "is a right issuing out of real property, annexed to and exercisable within it and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New River, in canal navigations, and tolls of fairs and markets;" citing Drybutter v. Bartholomew, 2 Peere Williams, 127; Habergham v. Vincent, 2 Ves. Jr. 232, and The King v. The Inhabitants of Chipping Norton, 5 East, 239.

In 1835 the Supreme Court of Pennsylvania held that " a toll-bridge erected by two individuals across a river between their lands, by legislative authority, is real estate." The court said that the right was "not only a right arising out of the soil, but so far as the abutments of the bridge are concerned, it is the soil itself." Hurst v. Meason, 4 Watts, 346. It is to be observed, however, that it does not appear that the builders were incorporated.

In Price v. Price's Heirs, 6 Dana, 107, the Court of Appeals of Kentucky, in 1838, held that the stock in the Lexington & Ohio Railroad Co. is real estate. Without citing any adjudicated case, the court came to a conclusion which is thus expressed: "The right conferred on each shareholder is unquestionably an incorporeal hereditament. It is a right of perpetual duration; and though it springs out of the use of personalty, as well as lands and houses, this matters not. It is a franchise which has ever been classed in that class of real estate denominated an incorporeal hereditament."

On the other hand, the Supreme Court of Massachusetts,

in 1798, in Russell et al. v. Temple et al., 3 Dana's Abr. 108, held that shares in incorporated bridge and canal companies are personalty. The case was between the widow and heirs of Thomas Russell, the former contending that the shares were personal property, and that consequently she was entitled to a distributive portion of them, and the latter insisting that they were realty, and that therefore she had but a dower estate. The question was very fully discussed and was decided (says Professor Greenleaf in his edition of Cruise) "upon great consideration."

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In his edition of Cruise, Greenleaf says: Shares in the property of a corporation are real or personal property, according to the nature, object and manner of the investment. Where the corporate powers are to be exercised solely in land, as where original authority is given by the charter to remove obstructions in a river and render it navigable, to open new channels, etc., to make a canal, erect water-works, and the like, as was the case of the New River water, the navigation of the river Avon and some others, and the property or interest in the land, though it be an incorporeal hereditament, is vested inalienably in the corporators themselves, the shares are deemed real estate. Such, in some of the United States, has been considered the nature of shares in toll-bridge, canal, and turnpike corporations by the common law; though latterly it has been thought that railway shares were more properly to be regarded as personal estate. But where the property originally entrusted is money, to be made profitable to the contributors by applying it to certain purposes, in the course of which it may be invested in lands or in personal property, and changed at pleasure, the capital fund is vested in the corporation, and the shares in the stock are deemed personal property, and as such are in all respects treated; in modern practice, however, shares in corporate stock, of whatever nature, are usually declared by statute to be personal estate." I Greenleaf's Cr. Dig. 39, 40. In support of this statement, Mr. Greenleaf cites the cases we have already noticed, and some

others that require consideration. One of the most important of these is Bligh v. Brent, 2 Y. & C. Exch. Rep. 268, 294. It involved the question whether the shares in the Chelsea Water-works Co. were realty or personalty. The act of incorporation left the question open, as it contained no declaration upon the subject. The court reviewed the cases bearing upon it, and came to the conclusion that the shares were personalty.

A careful examination of the adjudications upon the subject has brought us to the conclusion that, according to the weight of authority, the shares in question are personal property. In the early English cases the distinction, now well understood, between the property of a corporation and the rights of its members, does not seem to have been taken, and it appears to have been assumed that each shareholder had an estate in the corporate property, and that, consequently, if that property was real, his share was also realty. But the cases we have cited abundantly show that the distinction above mentioned is now fully recognized in England, and that the property of a corporation may be mainly, if not wholly, real, and yet the shares of its members be personalty. This may, possibly, be an innovation upon the ancient principles of the common law, but it is not more so than has taken place in the case of ordinary partnerships. Thus, the old doctrine seems to have been that there could be no partnership, properly so called, in land, but the contrary doctrine is now universally held; and that a widow of a deceased partner is not dowable in lands which the firm owned and regarded as partnership stock, is settled by numerous decisions, among which are the cases in 1 Ohio Rep. 535, I and 8 Ohio Rep. 328. In whatever way we view the case, whether upon adjudication, reason, or our statute laws, we arrive at the conclusion that the shares in question are personal property.-Per Thurman, J., in Johns v. Johns (1853).

CHAPTER IV.

CORPOREAL AND INCORPOREAL INTERESTS.

BRACTON, 220. There are certain rights which belong to a tenement besides the ownership of the corporeal things; these are from different points of view called rights or servitudes. They are called rights or franchises in reference to the tenements to which they appertain. They are called servitudes in reference to the tenements subject to the obligation; and they always consist in rights over another man's land and not over a man's own land, because no one can have a servitude over his own land, and no one can create a servitude of this kind but he who has lands and tenements, for some lands are free, others subject to a servitude. Land may be called free when it is in no respect bound or subservient to the lands of neighbors. If, however, it is so subservient, land which may before have been free is said to be subjected to a servitude, and this whether its subjection to the land or tenement of another be by the will and grant of the owners, or because of an ascertained obligation, or because of vicinage.

And thus a servitude is created over another man's land, sometimes by act of party, sometimes by acquiescence and user. And in the same way it is sometimes imposed by law, and neither by act of party nor by user, for instance, that no one should do on his own land anything by which damage or harm should result to his neighbor. For harm may be permitted by law, or it may be wrongful. It is wrongful when any one does any act on his own land wrongfully, contrary to law or contrary to a grant, he being forbidden by law to do the act. But if he be not forbidden by law to do

the act, although he does harm and causes damage, yet the act will not be wrongful, for it is lawful for any one to do upon his own land anything which will not cause wrongful damage to his neighbor; as if any one erects a mill on his own land, and diverts from his neighbor his own custom and that of the neighbors, he thereby does his neighbor harm but not injury, since he is not forbidden either by law or covenant to have or erect a mill. Again, there are servitudes which are imposed by law on neighboring tenements, as, for instance, that a man should not raise the level of the water in his pool so high as to drown the land of his neighbor. Another instance is that a man may not make a ditch on his own ground so as to divert his neighbor's water, or so as to prevent it in whole or in part from flowing back into its ancient channel.

HALE, ANALYSIS, 46-50. Things real are of two kinds : Corporeal, incorporeal.

Corporeal things real are such as are manurable. And they again are of two kinds-simple, aggregate.

Things corporeal which are simple are generally comprehended under the name of lands, which yet are distributed into several kinds, according to their several qualifications, and accordingly are demandable in writs.

Things incorporeal are of a large extent, but may be reducible into these two general kinds—namely, things incorporeal, not in their own nature, but so called in respect of the degree or circumstance wherein they stand; as reversions, remainders, the estate of lands.

Things incorporeal in their own nature-and these are of very great variety, and hardly reducible into general distributions, and therefore I am forced to take them by tale -namely, rents reserved or granted, as rent service, rent charge, rent seck. .. Services personal incident to tenures; as homage, fealty and knights service. Advowsons of all sorts. Tithes of all sorts. mons of all sorts; as common of estovers and of pasture, ap

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