38. Waste is the despoiling houses, lands, or woods, to the prejudice of hint who has a right of common, or of a remainderman or reversioner who has an inheritance in expectancy ; for if such a one has only a remainder for life, he is not entitled to sue for waste; or even during the continuance of an intermediate estate of freehold to take effect before his expectancy. Accident by is no waste, and no person is answerable for damages that may arise therefrom, except upon special agreement.
39. Subtraction is the non-performance of suit, duty, cus tom, or service, by whom it is due.
40. Disturbance is the hindering or disquieting any one in the laa lul enjoyment of an incorporeal hereditament.— All these sever al Injuries to real property are redressed by appropriate legal remedies, the technical particulars of which cannot here be detailed.
1. Things personal are comprehended under the general name of chattels ; and are, 1. Chattels real. 2. Chattels personal.
2. Chattels real are immoveable ; as interests in lands and tenements, mat are bounded by a definite time of dura tion ; as estates for years, estates at wilt, and estates upon condition.
3. Chattels personal arc things inoreab/e, which may be transferred from place to place. Property in chattels per sonal in possession, is where a man has not only the right of enjoyment, but has also the actual possession ; and such possession he can have in all inanimate things, as goods, plate, money, vegetable productions when severed from the ground, garments, &c. none of which can be divested out of the owner's possession but by his own consent, i nsent, and if i without his consent, he sustains an evident injury, which it is the business of the law to present or remedy.
4 But with regard to animals, which have in them selves a power of motion, the law makes a material dif ference. Animals are classed into such as are dolma, and such as are fera nature; in such as are domite nature, as horses, kinc, sheep, poultry, and the like, a man may have an absolute property ; for these will not stray from a man s house or person, unless by accident or fraudulent entice ment ; in either of which cases the owner does not lose his right of property, until they have been sold in market overt; but in such animals as are firm nature, a man can have no absolute property.
A qualified property in animals fere nature is per indus triam hominis, by a man's reclaiming them by art, or by confining them within his own immediate power, so that they cannot escape and use their natural liberty ; such as deer in a park, hares or rabbits in an enclosed warren, doves in a dove-house, pheasants or partridges in a mew, hawks that are fed and commanded by their owner, and fish in a private pond or in trunks. Bees are also ferre nature,
and are not the property of any person until they are hived, and not then, if they are pursued by the person from whose hive they swarmed, for they are his as long as he can pur sue or keep them in sight. A mats, indeed, may have a qua lified property in almost every thing personal that can be enjoyed, even in air, light, and water ; for if a man ob structs another's ancient windows, corrupts the air of his house or gardens, pollutes his water, or unpens and lets it out ; or if he diverts an ancient watercourse that used to run to the other's mill or meadow ; the law will animadvert thereon as an injury, and protect the party injured.
6. Property in action is where a man has not occupa tion, but merely a bare right to occupy the thing in ques tion, the possession whereof may, however, be recovered by suit or action of law : it is then called a chose in action, as money due on bond ; and these choses may either be express, as a contract to pay a certain sum ; or implied, as, where a convenanter fails to perform an act engaged to be done, he shall pay damages to him who sustains an injury by the breach of covenant.
7. Occupancy gives the first occupant a right to those few things which have still no legal owner. 1. Such as the goods of an alien enemy, restricted, however, to captors authorized by the king's proclamation, and to goods brought into the country by an alien enemy after a declaration of war without a safe conduct. 2. Any thing found, which does not come under the description of waifs, estrays, wreck, or treasure trove. 3. The benefit of the ments, light, air, and water, as far as they are previously unoccupied, or may be occupied without injury to ano ther; as where I have an ancient window overlooking my neighbour's ground, he may not erect any blind to obstruct the light, &c. 4. Animals fere nature', under the restric tions of the game laws. 5. Property arising by confusion of goods ; as where one intermixes his money, corn, or hay, with that of another, the law gives the entire property, without any account, to him whose original dominion (or property) is invaded. 6. Literary property, wherein, how ever, the author has an exclusive right of printing and re printing his works for the term of fourteen years, and at the end of that term, if the author himself be living, the right shall then return to him for another term of the same duration ; and a similar privilege is extended to the inven tors of prints and engravings for the term of eight-and twenty years, besides an action for damages, with double costs. And many subsequent statutes have been enacted to guard the rights of literary property.