Whitlock v. Greacen

• Citation: 21 A. 944,48 N.J.E. 359
• Parties: WHITLOCK v. GREACEN.
• Decision Date: 19 May 1891
• Court: New Jersey Court of Chancery

21 A. 944

48 N.J.E. 359

WHITLOCK

v. GREACEN.

Court of Chancery of New Jersey.

May 19, 1891.

(Syllabus by the Court.)

On demurrer.

Edward A. Day, for complainant.

Robert H. McCarter, for demurrant.

VAN FLEET, V. C. The main object of the suit in this case is to procure a decree settling the complainant's title to an incorporeal hereditament. The bill is filed under the statute of 1870, authorizing this court in certain cases to settle the title to lands. Revision, 1189. The complainant owns a tract of land lying adjacent to a tract owned by the defendant. Both tracts lie adjacent to the Morris canal. There is a mill on the complainant's tract which is in part operated by water-power. The water so used by the complainant is obtained from the canal, and is carried from the canal by a race-way across the lands of the defendant. The complainant claims a right to have water flow from the canal across the lands of the defendant to her mill, and avers that she is in peaceable possession of such right, claiming to own the same, and that the defendant denies her title thereto, and that no suit is pending to enforce or test the validity of such denial. She, therefore, asks that her title to such right may be settled by the decree of this court. It is thus seen that the subject-matter of this suit is the right of the complainant to an easement in the lands of the defendant. The defendant has demurred, specifying several grounds. The principal one is that the right which the complainant has attempted to put in course of judicial determination is not within the protection of the statute of 1870, and, cannot, therefore, be made the subject of a suit under that statute. The proposition on which the demurrer rests is this: that the statute of 1870 comprehends lands alone; in other words, that it provides a means for settling, in certain cases, the title to corporeal hereditaments, as distinguished from incorporeal hereditaments, but makes no provision for settling the title to incorporeal hereditaments. The word "hereditaments" embraces everything that may be inherited, be it corporeal or incorporeal. The difference, however, between a corporeal and an incorporeal hereditament, is wide and vital. Says Blackstone: "Corporeal hereditaments are the substance, which may be always seen, always handled; incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that substance. * * * Their existence is merely in idea and abstracted contemplation, though their effects and profits may be frequently objects of our bodily senses." 2 Bl. Comm. 19. And Kent says: "Corporeal hereditaments are confined to land, * * * and that incorporeal hereditaments comprise certain inheritable rights, which are not, strictly speaking, of a corporeal nature, or land, although they are, by their own nature or use, annexed to corporeal inheritances, and are rights issuing out of them or concern them." 3 Kent, Coram.* 402, mayl. The word "land" has in law a well-settled meaning. It includes the surface of the ground, and every thing that is on it and under it, but does not comprehend incorporeal hereditaments. Under a charter giving a corporation power to take land, by the exercise of the right of eminent domain, it has been repeatedly held, here and elsewhere, that a mere incorporeal hereditament could not be taken; and that this was so because land, according to its well-settled legal signification, was not broad enough to comprehend an incorporeal hereditament, but, simply embraced things corporeal. Watson v. Water Co., 36 N. J. Law, 195; De Camp v. Railroad Co., 47 N. J. Law, 43. The main design of the statute of 1870 was to provide a means by which disputes respecting the title to lands might, in certain cases, be put in course of judicial determination, in order that all doubts concerning the same might be removed, so that the real owner of the lands might have the full benefit of his ownership. The only thing the law-making power meant to protect was the title to lands. This is plainly declared by almost every section of the statute. By the first section it is enacted that when any person is in the peaceable possession of lands, claiming to own the same, and his title thereto is denied or disputed, or any other person claims, or is reputed to claim, to own the same, or to hold any incumbrance thereon, and no suit shall be pending to enforce or test the validity of such claim, it shall be lawful for such person, so in possession, to maintain a suit in the court of chancery to settle the title to the lands, and to clear up all doubts and disputes concerning the same. The same section then declares that the bill in such suit shall describe the lands with certainty, and shall name the person who claims or is reputed to claim such hostile title or lien, and shall call upon him to set forth his title or lien, and how and by what instrument the same was created. The second section directs that with the subpoena in such suit. a ticket shall be issued describing the lands with precision, stating the object of the suit, and likewise notifying the defendant that, if he claims any title to or lien on the lands, he must...