Lessee of Black v. Hepburne

2 Yeates 331

Opinion

By the court.

The boundaries of all actions ought to be preserved. 8 Mod. 275. On the present motion, where our opinions on a mere law point are with the defendant, we cannot permit the cause to go on, without declaring them, and reserve the point. If it should tarn out that we are mistaken, the court will award a new trial without costs.

Incorporeal things are in their nature invisible, quoe ñeque tangi. nee videri possunt, and therefore are not in their nature capable of being delivered in execution. The general rule is, as has been stated by the defendant, that ejectment will only lie for things whereof possession may be delivered by the sheriff. The case of common append-ant or appurtenant is in some degree an exception ; but there the officer by giving posession of the land gives possession of the common. 1 Stra. 54. The plaintiff has shown no title to the soil of the intermediate ground in dispute wdiatever privilege ho, or the other townsmen, may have to the landing place. Ejectment

* will not lie for a fishery, the diversion of a water course; (Yelv. 143, 1 Brownl. 142 Runn. Ejectment. 36, ) and the reason given is, that it is impossible to give possession of a thing which is transient and always running. But in both instances, an action on the case in nature of an assize, will lie for disturb auce.

■So here, the objects demanded by the present suits are fleeting in their nature, and in a state of constant charge, not susceptible of actual possession, nor deliverable in execution. And therefore we apprehend that the form of action has been ipisconceived.

The plaintiff suffered a nonsuit

Ejectment will lie for a boilary of salt; pro Stagno, or de Qurgiie ; because in all these cases, the terms comprehend both land and water. Emm. Eject. 36, 3Í.