Jurisprudence

by Sir John W. Salmond

1. A lease is the encumbrance of property vested in one man by a right to the possession and use of it vested in another.

2. A servitude is a right to the limited use of a piece of land unaccompanied either by the ownership or by the possession of it; for example, a right of way or a right to the passage of light or water across adjoining land.

3. A security is an encumbrance vested in a creditor over the property of his debtor, for the purpose of securing the recovery of the debt; a right, for example, to retain possession of a chattel until the debt is paid.

4. A trust is an encumbrance in which the ownership of property is limited by an equitable obligation to deal with it for the benefit of someone else. The owner of the encumbered property is the trustee; the owner of the encumbrance is the beneficiary.

§ 84. Principal and Accessory Rights.

The relation between principal and accessory rights is the reverse of that just considered as existing between servient and dominant rights. For every right is capable of being affected to any extent by the existence of other rights; and the influence thus exercised by one upon another is of two kinds, being either adverse or beneficial. It is adverse, when one right is limited or qualified by another vested in a different owner. This is the case already dealt with by us. It is beneficial, on the other hand, when one right has added to it a supplementary right vested in the same owner. In this case the right so augmented may be termed the principal, while the one so appurtenant to it is the accessory right. Thus a security is accessory to the right secured; a servitude is accessory to the ownership of the land for whose benefit it exists; the rent and covenants of a lease are accessory to the landlord’s ownership of the property; covenants for title in a conveyance are accessory to the estate conveyed; and a right of action is accessory to the right for whose enforcement it is provided.

A real right may be accessory to a personal; as in the case of a debt secured by a mortgage of land. A personal right may be accessory to a real; as in the case of the covenants of a lease. A real right may be accessory to a real; as in the case of servitudes appurtenant to land. And finally a personal right may be accessory to a personal; as in the case of a debt secured by a guarantee.

A right which is dominant with respect to one right, is often at the same time accessory with respect to another. It limits one right, and at the same time augments another. A typical example is a servitude over land. The owner of Whiteacre has a right of way over the adjoining farm Blackacre to the highway. This right of way is dominant with respect to Blackacre, and accessory with respect to Whiteacre. For the burden of it goes with Blackacre, and the benefit of it with Whiteacre. Blackacre is accordingly called the servient, and Whiteacre the dominant tenement. So a mortgage is a dominant right with respect to the property subject to it, and an accessory right with respect to the debt secured by it. In like manner a landlord’s right to his rent is dominant with regard to the lease, but accessory with regard to the reversion. This double character, however, is not necessary or universal. A public right of way is an encumbrance of the land subject to it, but it is not accessory to any other land. So a lease is a dominant right which is not at the same time accessory to any principal.

§ 85. Legal and Equitable Rights.

In a former chapter we considered the distinction between common law and equity. We saw that these two systems of law, administered respectively in the courts of common law and the Court of Chancery, were to a considerable extent discordant. One of the results of this discordance was the establishment of a distinction between two classes of rights, distinguishable as legal and equitable. Legal rights are those which were recognised by the courts of common law. Equitable rights (otherwise called equities) are those which were recognised solely in the Court of Chancery. Notwithstanding the fusion of law and equity by the Judicature Act, 1873, this distinction still exists, and must be reckoned with as an inherent part of our legal system. That which would have been merely an equitable right before the Judicature Act is merely an equitable right still.