[415]. Monti v. Barnes, (1901) 1 K. B. 205.
[416]. It is only by slow degrees and with imperfect consistency that our law has worked out an intelligible principle on this matter. The older law seems to have recognised mere physical attachment as necessary and sufficient, subject to exceptions so numerous and important, as to deprive the principle itself of any rational basis. See, for the modern law on the point, Holland v. Hodgson, L. R. 7 C. P. 328; Monti v. Barnes, (1901) 1 K. B. 205; In re De Falbe, (1901) 1 Ch. 523; (1902) A. C. 157; Elwes v. Brigg Gas Coy., 33 Ch. D. 502. Similar law is contained in Article 95 of the German Civil Code: “Things are not part of the land which are attached to it simply for a temporary purpose.” The case of Reynolds v. Ashby & Son, (1904) A. C. 466, shows, however, that English law has not yet succeeded in adopting with consistency any single and intelligible rule.
[417]. Unlike a chattel, a piece of land has no natural boundaries. Its separation from the adjoining land is purely arbitrary and artificial, and it is capable of subdivision and separate ownership to any extent that may be desired. The lines of subdivision are usually vertical, but may be horizontal. The surface of land, for example, may belong to one man and the substrata to another. Each story of a house may have a different owner. In The Midland Railway Coy. v. Wright, (1901) 1 Ch. 738, it was held that a right had been acquired by prescription to the surface of land belonging to a railway company, although a tunnel beneath the surface remained the property of the company as having been continuously in its occupation.
[418]. Baudry-Lacantinerie, Des Biens, sect. 123: “We know that rights, regarded as incorporeal things, are properly speaking neither movables nor immovables. But by a fiction the law classes them as one or the other according to the nature of their subject-matter.” See also Dernburg’s Pandekten, I. sect. 74.
[419]. For example, the jurisdiction of English courts in the administration of deceased persons’ estates depends on the deceased having left property in England. Portions of revenue law and of private international law are also based on the assumption that all proprietary rights possess a local situation.
[420]. Inland Revenue Commissioners v. Muller & Co.’s Margarine, Limited, (1901) A. C. at p. 230.
[421]. Ibid.
[422]. Dicey, Conflict of Laws, p. 310, 2nd ed.
[423]. There are certain cases, however, which have been decided on the assumption that incorporeal property possesses no local situation at all. For this reason it was held in The Smelting Company of Australia v. Commissioners of Inland Revenue, (1897) 1 Q. B. 172, that a share of a New South Wales patent, together with the exclusive right of using it within a certain district of that colony, was not property “locally situated out of the United Kingdom” within the meaning of sect. 59, sub-sect. 1, of the Stamp Act, 1891. “I do not see,” says Lopes, L.J., at p. 181, “how a share in a patent, or a licence to use a patent, which is not a visible or tangible thing, can be said to be locally situate anywhere.” See, however, as to this case, the observations of Vaughan Williams, L.J., in Muller & Co.’s Margarine, Limited, v. Inland Revenue Commissioners, (1900) 1 Q. B. at p. 322, and of Lord Lindley on appeal in the House of Lords, (1901) A. C. at p. 237. See further, as to the local situation of incorporeal property. Danubian Sugar Factories v. Commissioners of Inland Revenue, (1901) 1 K.B. 545; Commissioner of Stamps v. Hope, (1891) A. C. 476; Att.-Gen. v. Dimond, 1 C. & J. 356; 35 R. R. 732; In re Clark, (1904) 1 Ch. 294; Dicey, Conflict of Laws, pp. 309–314, 2nd ed.
[424]. The matter has been well discussed by Mr. T. C. Williams in L. Q. R. IV. 394.