PART I.

PROPERTY IN GENERAL.

TITLE I. NATURE OF PROPERTY.

II. OWNERSHIP.

III. GENERAL DEFINITIONS.

TITLE I.

NATURE OF PROPERTY.

SECTION 654. Property, what.

655. In what property may exist.

656. Wild animals.

657. Real and personal.

658. Real property.

659. Land.

660. Fixtures.

661. Fixtures attached to mines.

662. Appurtenances.

663. Personal property.

654. The ownership of a thing is the right of one Property,

or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property.

NOTE. The term "property," as applied to lands, embraces all titles, legal or equitable, perfect or imperfect.-Leese vs. Clark, 20 Cal., p. 387. Debts or credits are property.-Adams vs. Hackett, 7 Cal., p. 187; People vs. McCreery, 34 Cal., p. 447; People vs. Eddy, January Term, 1872. A right of way is an assignable

what.

In what property

property.-Ex parte Coburn, 1 Cow., p. 570; Heaton vs. Ferris, 1 John., p. 146. An easement is real property.-Wolfe vs. Frost, 4 Sand. Ch., p. 89; Foster vs. Browning, 4 R. I., p. 51; Buckeridge vs. Ingram, 2 Ves., Jr., p. 654. Where a street railroad company were authorized to lay down a track in a street, run cars over it, etc., it is an easement in the land, and the estate of the company in the street is real property.Appeal of N. B. and M. R. R. Co., 32 Cal., p. 499. Franchises are property (id., and cases cited therein), and may be sold under execution.-See Sec. 388, ante.

655. There may be ownership of all inanimate may exist. things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good will of a business, trade marks and signs, and of rights created or granted by statute.

NOTE. The sea, air, light, etc., cannot be the subject of property (ownership). Every one may enjoy them, but he has no exclusive right in them.-Bouvier Dict., "Property." In England one might appropriate the benefits of these, and while occupancy continues he has an ownership, or property, as in case of ancient windows.-Cooley's Blackst. Comm., Vol. II, p. 395, and note. American Courts generally reject the English doctrine respecting the prescriptive right to the enjoyment of light and air, as unsuited to the circumstances of this country.-Parker vs. Foote, 19 Wend., p. 309; Napier vs. Bulwinkle, 5 Rich., p. 311; Cherry vs. Stein, 11 Md., p. 1; Ingraham vs. Hutchinson, 2 Conn., p. 597; Ward vs. Neal, 37 Ala., p. 500; 2 Washb. Real Prop., p. 62. A right of action is property, and the right depends entirely upon contracts, either express or implied.-Blackst. Comm., p. 397. But there are many rights of action springing from torts which are recognized as property, and subject to equitable assignment or survivorship to personal representatives, on death of the person entitled to maintain the suit. This is so, generally, as to right of action for such torts as are not merely personal.-North vs. Turner, 9 S. and R., p. 244; McKee vs. Judd, 12 N. Y., p. 622; Rice vs. Stone, 1 Allen, p. 566; Jordan vs. Gillen, 44 N. H., p. 424; Final vs. Backus, 18 Mich., p. 218; see note to Cooley's Blackst. Comm., Vol. II, p. 397.

animals.

656. Animals wild by nature are the subjects of wild ownership, while living, only when on the land of the person claiming them, or when tamed, or taken and held in possession, or disabled and immediately pursued.

NOTE.-2 Blackst. Comm., p. 403.

657. Property is either:

1. Real or immovable; or,

2. Personal or movable.

NOTE. The term real, as applied to property in distinction from personal, did not come into general use until as late as the seventeenth century, and after the feudal system had lost its hold. While the feudal law prevailed, the terms were lands, tenements, and hereditaments, and these acquired the name of real from the nature of the remedy applied by law for their recovery, differing from that provided in cases of injuries, contracts broken, etc. In the first case the claimant recovered the real thing sued for-i. e., the land itself; while in the last case he could ordinarily only recover pecuniary damages. The earliest case in which the terms real and personal (without words of explanation) are applied to estates is that of Wind vs. Jekyl et al., A. D. 1719, 1 P. Will. Ch., p. 575. The term “immovables," as used in the civil law, corresponded to our term real, and "movables" to our "personal."-Williams' Real Prop., pp. 6, 7; Bouvier Law Dict., Real Prop.

658. Real or immovable property consists of:

1. Land;

2. That which is affixed to land;

3. That which is incidental or appurtenant to land;

4. That which is immovable by law.

NOTE.-2 Blackst. Comm., pp. 16-19; Coke Litt., pp. 4 (a) to 6 (b).

Subd. 2. That which is affixed to land (is real property). But a house may be built on another's land with his consent, and it is the personal property of the builder.-1 Fairfield Rep., p. 429; 18 Me., p. 12, S. P.; 4 Adolph. & Ellis, p. 884; 6 N. H., p. 555; 6 Me., p. 452; 8 Pick. Mass., p. 404. So as to growing trees, as in land hired for nursery purposes.-1 Metc. Mass.,

Real and personal.

Real property.

Land.

Fixtures.

p. 27; 4 Taunt., p. 316; 7 Barb., p. 263. And, as a general rule, the tenant may remove what he has added, when he can do so without injury to the estate; but as against a vendor, all fixtures pass to his vendee, even though erected for purposes of manufacture or trade, unless specially reserved in the conveyance.-Sands vs. Pfeiffer, 10 Cal., p. 258; McGreary vs. Osborne, 9 Cal., p. 119. A mortgage upon premises covers the fixtures, even though they are erected subsequently to the mortgage; and an engine and boiler so erected and fastened to a mill passed on foreclosure of the mortgage.-Sands vs. Pfeiffer, 10 Cal., p. 258. For removal of fixtures by tenant, etc., see id.; Merritt vs. Judd, 14 Cal., p. 59; Woodward vs. Lazar, 21 Cal., p. 448; 22 Cal., p. 631; 23 Cal., p. 217; 23 Cal., p. 170; 28 Cal., p. 203; 6 Me., p. 154; 20 Wend. N. Y., p. 368; 2 Smith Lead. Cas., Am. Ed., p. 168; 2 Pet., p. 143; 7 Cow. N. Y., p. 319; 1 Wheat., p. 91; 17 Pick., Mass., p. 192; see notes to Secs. 660, 661, 663, and 1013.

659. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance.

NOTE.-2 Sharswood, Blackst. Comm., p. 18; 3 Kent Comm., p. 378 (n).

660. A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts,

or screws.

NOTE.-Secs. 658, 660, and 1013 of this Code support the general rule that fixtures, once attached to the freehold, become a part of the realty. How far this rule may be modified as between landlord and tenant depends upon either an express agreement between them, or what may justly be inferred as the evident intention of both parties, and forming an implied agreement.-Merritt vs. Judd, 14 Cal., p. 59; see note to Sec. 658, and cases cited. Fixtures, for ornament, convenience, or to carry on a trade, may be removed by tenant who erected them, if removal can be made without injury to the freehold.16 Day, Con., p. 322; 16 Mass., p. 449; 4 Pick. Mass., p. 310; 7 Barb. N. Y., p. 263; 1 Den. N. Y., p. 92; 19