§ 155 Movable and Immovable Property
Among material things the most important distinction is that between movables and immovables, or, to use terms more familiar in English law, between chattels and land. In all legal systems these two classes of objects are to some extent governed by different rules, though in no system is the difference so great as in our own.
Considered in its legal aspect, an immovable, that is to say, a piece of land, includes the following elements:—
1. A determinate portion of the earth’s surface.
2. The ground beneath the surface down to the centre of the world. All the pieces of land in England meet together in one terminal point at the earth’s centre.
3. Possibly the column of space above the surface ad infinitum. “The earth,” says Coke,411 “hath in law a great extent upwards, not only of water as hath been said, but of ayre and all other things even up to heaven; for Cujus est solum, ejus est usque ad coelum.” The authenticity of this doctrine, however, is not wholly beyond dispute. It would prohibit as an actionable trespass all use of the air-space above the appropriated surface of the earth, at whatever height this use took place, and however little it could affect the interests of the landowner. If a man is carried in a balloon at a distance of half a mile above the ground, does he infringe the rights of those who own the surface? It may be that the law recognises no right of ownership in the air-space at all, or at least no right of exclusive use, but merely prohibits all acts which by their nature or their proximity interfere with the full enjoyment and use of the surface.412 By the German Civil Code,413 the owner of land owns the space above it, but has no right to prohibit acts so remote from the surface that they in no way affect his interests.
4. All objects which are on or under the surface in its natural state; for example, minerals and natural vegetation. All these are part of the land, even though they are in no way physically attached to it. Stones lying loose upon the surface are in the same category as the stone in a quarry.
5. Lastly all objects placed by human agency on or under the surface, with the intention of permanent annexation. These become part of the land, and lose their identity as separate movables or chattels; for example, buildings, walls, and fences. Omne quod inaedificatur solo cedit, said the Roman law.414 Provided that the requisite intent of permanent annexation is present, no physical attachment to the surface is required. A wall built of stones without mortar or foundations is part of the land on which it stands.415 Conversely physical attachment, without the intent of permanent annexation, is not in itself enough. Carpets, tapestries, or ornaments nailed to the floors or walls of a house are not thereby made part of the house. Money buried in the ground is as much a chattel416 as money in its owner’s pocket.417
It is clear that the distinction between movables and immovables is in truth and in fact applicable to material objects only. Yet, the law has made an unfortunate attempt to apply it to rights also. Rights no less than things are conceived by the law as having a local situation, and as being either movable or permanently fixed in a definite locality. The origin of this illogical conception is to be found in the identification of rights of ownership with the material things which are the objects of them. I am said to own land and chattels, as well as easements, shares, debts, contracts, and patents. All these things are equally property, and since some of them have a local situation and can be truly classed as movable or immovable, the law has been led by inadvertence to attribute these qualities to all of them. It has recognised in things which are incorporeal certain attributes which in truth pertain to things corporeal only. It has divided the whole sphere of proprietary rights by reference to a distinction which is truly applicable not to rights at, all, but to physical objects. Nor is this merely a peculiarity of English law, for it is found in Continental systems also.418
On what principle, then, does the law determine whether a right is to be classed as immovable or as movable? The general rule is that a right has in this respect the same quality as its subject-matter. Every right over an immovable thing, whether it is a right of ownership, or a lease, or a servitude, or a security, or any other jus in re aliena, is itself immovable, and every right over a movable thing is itself movable. So far there is no difficulty. What shall we say, however, of those rights which have no material objects at all, such as a copyright, a patent, the good-will of a business, a trade-mark, or the benefit of a contract? The answer is that all such rights are classed by the law as movable. For the class of movable property is residuary, and includes all rights which can make good no claim to be classed as immovable.
The law not merely classifies rights as movable and immovable, but goes further in the same direction, and attributes local situation to them. It undertakes to say not merely whether a right exists, but where it exists. Nor is this a difficult task in the case of those rights which have determinate material things as their objects. A servitude or other jus in re aliena over a piece of land is situated in law where the land is situated in fact. A right over a chattel is movable property, and where the chattel goes the right goes also. But where there is no material object at all, what are we to say as to the local situation of the right? Where is a debt situated, or a share, in a company, or the benefit of a contract, or a copyright? Such questions can be determined only by more or less arbitrary rules based upon analogy, and it is to be regretted that it has been thought needful to ask and answer them at all. As the law stands, however, it contains several rules based on the assumption that all property which exists must exist somewhere,419 and for the application of these rules the determination of the local situation of rights is necessary, even though it leads into the region of legal fictions. “The legal conception of property,” says Lord Lindley,420 “appears to me to involve the legal conception of existence somewhere.... To talk of property as existing nowhere is to use language which to me is unintelligible.”
The leading principle as to the local situation of rights is that they are situated where they are exercised and enjoyed. Rights over material things, therefore, have the same situation as those things themselves. The good-will of a business is situated in the place where the business is carried on.421 Debts are in general situated in the place where the debtor resides,422 since it is there that the creditor must go to get his money.423