According to the rigour of English legal doctrine there can be no owner of land except the Crown itself. The fee simple of land—the greatest right in it which a subject can possess—is not in truth ownership, but a mere encumbrance upon the ownership of the Crown. It is a tenancy or lease granted to a man and his heirs. It is a temporary not a permanent right of user. It will come to its natural termination on the death of the tenant without leaving an heir or devisee in whom the right may be continued. The land will thereupon revert or escheat to the Crown; that is to say, the Crown’s ownership, which has never been divested, but has merely been encumbered by the fee simple, will through the destruction of this encumbrance become once more free and absolute. In the case of chattels it is otherwise. They can be owned by the subject no less than by the Crown. It is true that if the owner of them dies intestate without kin, they will go to the Crown as bona vacantia, just as land will go to the Crown as an escheat. But between these two processes there is a profound difference in legal theory. In the case of chattels the Crown succeeds to the right which was vested in the dead man; his ownership is continued in the Crown, just as it would have been continued in his next of kin had there been any. But in the case of escheat, as already said, the right of the dead man has come to an end, and the Crown succeeds to no right of his, but simply comes into its own again.
This distinction, however, between the fee simple of land and the ownership of it is a matter of form rather than of substance. In fact, if not in legal theory, the right of a tenant in fee simple is permanent; for escheat takes place only on an intestacy, and therefore can be prevented by the act of the tenant. We are at liberty, therefore, to disregard this technicality of real property law, and to speak of the fee simple of land as the ownership of it, the right of the Crown being viewed, accordingly, not as vested and continuing ownership subject to an encumbrance, but as a contingent right of succession to an intestate owner.
§ 155. Movable and Immovable Property.
Among material things the most important distinction is that between movables and immovables, or, to use terms more familiar in English law, between chattels and land. In all legal systems these two classes of objects are to some extent governed by different rules, though in no system is the difference so great as in our own.
Considered in its legal aspect, an immovable, that is to say, a piece of land, includes the following elements:—
1. A determinate portion of the earth’s surface.
2. The ground beneath the surface down to the centre of the world. All the pieces of land in England meet together in one terminal point at the earth’s centre.
3. Possibly the column of space above the surface ad infinitum. “The earth,” says Coke,[[411]] “hath in law a great extent upwards, not only of water as hath been said, but of ayre and all other things even up to heaven; for Cujus est solum, ejus est usque ad coelum.” The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all use of the air-space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the landowner. If a man is carried in a balloon at a distance of half a mile above the ground, does he infringe the rights of those who own the surface? It may be that the law recognises no right of ownership in the air-space at all, or at least no right of exclusive use, but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surface.[[412]] By the German Civil Code,[[413]] the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests.
4. All objects which are on or under the surface in its natural state; for example, minerals and natural vegetation. All these are part of the land, even though they are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in a quarry.
5. Lastly all objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables or chattels; for example, buildings, walls, and fences. Omne quod inaedificatur solo cedit, said the Roman law.[[414]] Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands.[[415]] Conversely physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel[[416]] as money in its owner’s pocket.[[417]]