Welles v. Cowles

2 Conn. 567

• Court: Supreme Court of Connecticut
• Decided: June 15, 1818
• Status: Published

Opinion

Swift, Ch. J.

Though the public do not own the right of soil in highways, yet they have the right? to pass and re-pass, and to do every act necessary to make and repair the roads. This right, though of an incorporeal kind, is real property. When the legislature incorporated the turnpike company in question, they authorised and empowered them to make and maintain the road, to erect gates thereon, and collect a certain toll, till the expense of making and repairing the road should be reimbursed to the stockholders, with twelve per cent, interest. This is a right, issuing out of real property, annexed to, and exerciseable within it; and comes within the description of an incorporeal hereditament of a real nature, on the same principle as a share in the New lliver, in canal navigations, and tolls of fairs and markets. Drybutter v. Bartholomew, 2 P. Wms. 127. Habergham v. Vincent, 2 Ves. jun. 232. The King v. The inhabitants of Chipping-Norton, 5 East 239. This is not a mere right of action in favour of the company to collect a toll from individuals passing the road ; but they can, by erecting the gates, compel passengers to pay for the privilege of passing the road. This is a power annexed to, and exercisable upon, the turnpike road ; and the toll is paid for passing the road, and, consequently, issues out of it.

It has been urged, that the individual stockholders have only a claim on the company, and not upon the realty, and ibis must be of a personal nature. But the stockholders, as members of the company, are owners of the turnpike road ; and it is in virtue of this interest, that they have their claims for the dividends, or their respective shares of the toll. It is not a mere claim on the 'corporation.

It is further insisted, that this right to collect the toll is of a limited duration, tbat is, till tine expenses are reimbursed : that this must happen at some period ; and the remoteness of it can make no difference; .consequently, this must be a personal right. It is true, when the estate must determine at a certain time, and may determine sooner, it is a chattel interest. But a freehold maybe created upon a condition ; and where the condition or limitation is uncertain, depending on a contingency, this uncertainly preserves the freehold : for if the condition remain unbroken, or is not performed, it may last forever, or, at least, for the life of the ow'ncr. Here, the grant to the turnpike company is conditional, or more properly speaking, limited ; depending on a contingency, the reimbursement of the expenses of the road. If this should never take place, and there is a possibility it may not, then the estate will endure forever; but the mere possibility that the event may happen, on which the estate will be defeated, does not convert it into a chattel personal. 2 Black. Comm. 156.

Hosmbk, J.

The only question necessary to be decided in Ibis case, is, whether turnpike shares are personal estate ; If they are not, the testatrix, by reason of her tender age, was not legally capable to dispose of them by her last will. 1 Stat. Conn, tit. 8. s. 1.

To simplify the enquiry, it will be useful to remove out of Ihc way some considerations which embarrass the mind in its progress towards a legal result.

Estates heh~ by statute merchant, statute staple anti elegit~ are merely chattel interests. They vest in the executors of the deccasc~1, ~ot by reason ~f there general uathrc. bn~ because « being a security and remedy provided for the present debts of the deceased, to which debts the executor is entitled, the law lias therefore thus directed their succession ; as judging it reasonable, from a principle of natural equity, that the security and remedy should fee vested in those to whom the debts, if recovered, would belong.” 2 Black. Comm, 162. From this source, therefore, no argument applicable to the present case can be deduced. Neither can any fee derived from the fact, that turnpike shares in England are deemed chattel interests. They are made such by statute, which limits them to a certain number of years. In the state of Mew-Tork, the laws authorising turnpikes, expressly constitute the shares personal estate. Under this head, I will only add, that the mode of leving executions, on this species of property, furnishes no aid towards a decision of the principal question. It is expressly prescribed by statute.

Turnpike shares are not embraced within any description of personal property, with which I am acquainted. “ Chattels personal are, properly speaking, things moveable ; which may be annexed to, or attendant on, the person of the owner, and carried about with him from one part of the world to «mother.” 2 Black. Comm. 387. It is equally clear, that turnpike shares are not chattels real. These have the immobility of land, but want a sufficient legal indeterminate duration ; and this want it is that constitutes them chattels. 2 Black. Comm. 386. The utmost period for which they can last, is fixed and determinate. But, the estate in a turnpike share is indeterminate, and may last forever. It falls within the reason assigned for considering estates durante viduitate, or for any like uncertain time, estates for life, since by possibility they may last so long. Co. Lit. 42. 3 Rep. 42. A grant of land, at common law> to a man and the heirs of his body, was called a conditional fee. It might endure forever; though on failure of the heirs specified in the grant, the land would revert to the donor. Plowd. 241. If then, turnpike shares are neither chattels real nor personal, what remains but that they are of that species of real estate denominated tenements ? “ This word includes not only all corporate inheritances, which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisable within the same, though they He not in tenure.” Co. Lilt. 19, 20. « Therefore,” says Coke, “ they may be entailed. Rents, estovers, or other profits whatsoever, granted out of land ; or uses, offices, dignities, which concern lands or certain places, may be entailed within the said statute \ because all these savour of the realty. jBut if the grant be of an inheritance merely personal, or to be exercised about chattels, and is not issuing out of land, nor concerning any land, or some certain place, such inheritances cannot be entailed, because they savour nothing of the realty.” The expression cited, “ though they lie not in tenure,” merits attention, to put down a common error, that nothing can be real estate which is not visible and palpable. A single instance will sufficiently illustrate this subject. An advowson is an incorporeal hereditament, though it is neither the object of sight nor touch. It is the right of presentation to an ecclesiastical living. When the nominee enters, and receives bodily possession of the lands and tenements of a church, there is a visible corporeal fruit j but the estate which the patron has, is the invisible right of presentation only. The same observation is applicable to other incorporeal heredita-ments, and among them to an annuity, « in which a man may have a real estate.” 2 Black. Comm. 40. In short, Wooddeson, vol. 2. 57. correctly defines incorporeal hereditaments <f to be such rights and estates, descending, or capable of descending, in fee simple, or fee tail, of which the essence is merely ideal, and not the object of our outward senses.”

A wife, at common law, is dowable only of lands or tenements, of which her husband was seised at some time during the coverture. Co. Lilt. 30. b. Yet she may be endowed of the third part of the profits of stallage ; or of the profits of a fare ; or of the profits of the office of the marshalsea ; or of the profits of keeping a park j or of the profit of a dove-house ; or of a rent in fee. All these instances, and others of the same nature, which might be enumerated, decisively show*, that tenements, or real estate, exist, not only in the person w ho has actual seisin of the land, but in others, who have a profit or rent derivable from it, or from an office concerning it.

I think it undoubted, that a turnpike share is that species of real estate denominated a tenement. Over the soil, the owner of the share has no other interest, than a right to render It passable, and to receive a compensation. Hut « rents or any other profits whatsoever} which concern lands, or are peculiarly and certainly local, may be entailed as tenements.. because all these, says Sir Edward Coke, savour of the re~ ally.'’ 2 Wooddeson 71. In Drybutter v. Bartholomew, 2 jp. Wins. 127. it was decided, that the husband being seised of a share of the JVew-Tiiver water, the wife could not be barred without a line. Wooddeson, vol. 2. 50. referring to this case, makes the following observations : “ Thus, also, the several shares or interests in the Mew-River water, are clearly hereditaments, in which a fee simple may be acquired j and, I apprehend, they are to be ranked with those of the incorporeal kind. For they do not seem to give an absolute or exclusive right or ownership in the water, or in the soil covered with water, to any proprietor, individually, or to all tlic proprietors, jointly ; but only to a real or freehold interest in the rents and profits resulting from a proprietary share in the undertaking, as regulated by the legislature.”

The master of the Rolls, in Buckeridge v. Ingram, 2 Ves. jun. 652. decided, that the shares in the river Avon navigation, a case essentially similar to the one under discussion, were real estate. That river was rendered navigable by persons authorized by act of parliament. The proprietors had no interest whatever in the soil, except what arose from the right to enter on land, and by digging or other means, to accomplish the general object of the law. The value of the shares arose from the rates and duties collected. After having referred to the doctrine of Lord Coke, before recited, the master of the Rolls observed, that the act gave a right in and over the soil, and certain real rights arising in and out of the soil. « I have no difficulty” (says he,) “ in saying, that wherever a perpetual inheritance is granted, which arises out of lands, or is in any degree connected with, or, as it is emphatically expressed by Lord Coke, exerciseable within it, it is that sort of property the law denominates real.” F. 663,4.

In the case of the Mng v. The inhabitants of Chipping-Norton, 5 East, 239. it is said by Lord Ellenborough, founding himself upon the authority of Lord Coke, in his comment upon the statute of Westminster 2d. or on Webb’s case, 8 Rep. 46. b. that the receiving the tolls of a fair or market was the taking of a tenement, within the law concerning the settlement of paupers. By the statute of Frauds and Perjuries, « no action shall be brought to charge any person upon any contract or sale of lands, tenements or hereditaments,” &c. unless the contract is in writing. But all freehold rents, of whatever denomination, are within the operation of this clause, as coming under the word “ tenements.” Habergram v. Vincent, 2 Ves. jun. 232. Roberts on the statute of Frauds, 126, 127.

Without pursuing the subject further, I have no hesitation in declaring, that turnpike shares, on principles of common law, cannot be classed with personal estate; but, that they are real estate, and the testatrix, Sarah Norton, was incapable of devising them.

The other Judges were of the same opinion.

New trial not to be granted.

(a)

«) During the pendency of this cause in the supreme court of errors, the General Assembly passed an act, which, after stating in the preamble, that doubts had been entertained, whether shares in banks, turnpike companies, and other incorporated companies, should be disposed of as personal or real estate, provided, that all such shares, thereafter, should be considered, and might be disposed of, as personal estate,, 2 Conn. Stat. May Session, 1818, c. 10.