Provisions Relating to Minerals.-As to these, an additional definition clause appears in s. 24, supra, p. 193.

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same.

Land.-Unless the contrary intention appears, "land" includes messuages, tenements, and hereditaments, houses and buildings of any tenure," by virtue of the Interpretation Act, 1889, s. 3. But this must be read, as to "tenements and hereditaments," subject to the words excluding "any incorporeal hereditament issuing or granted out of the land," and subject to the definition of "interest" in relation to land, infra, p. 308. Land" here clearly includes "houses and buildings"; cf. s. 25 (2), and the other matters mentioned in that sub-s. As to easements, tolls, and sporting rights, see note on Interest in relation to land," infra, p. 308. "Any Incorporeal Hereditament."- “An incorporeal hereditament is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exerciseable within, the It is not the thing corporate itself, which may consist in lands or the like, but something collateral thereto, as a rent issuing out of those lands. . .' (Blackstone's Comm. Sweet's edn., 1844, II. 20, based on Co. Litt., 19, 20, and cited with approval in In re Christmas (1886), 55 L. J. Ch. 878, at p. 880). Blackstone goes on to say (p. 21) that "incorporeal hereditaments are principally of ten sorts: advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents." Other instances given in Co. Litt. 47a, are "mulcture of a mill, fayres, markets, liberties." All these are clearly excluded from "land" by the present definition; by "rents" in Blackstone being meant those rents which are here defined as rentcharges. "Easements are incorporeal" (Gale on Easements, 8th edn., p. 8; see definition of easement, loc. cit., supra, p. 221). Upon incorporeal hereditaments generally, see also Goodeve on Real Property, Chapter XVI. As to easements and tolls, vide infra, p. 309.

Some authors also apply the term incorporeal hereditaments so as to include reversions and remainders, and executory interests, and distinguish incorporeal hereditaments other than reversions and remainders, and executory interests, as "purely incorporeal

LAND.

Sect. 41. hereditaments," being "ever of an incorporeal nature, and never assuming a corporeal shape" (Williams, 20th edn. 410; Challis, 2nd edn., 47, 48). The inclusion of "reversions, remainders, and executory interests is not universally approved; cf. Sweet, Law Dict., S.V. "hereditament"; but it is made clear by the express insertion of words for that purpose in the definition of "interest in land in the present section, infra, p. 309, that a reversion expectant on the determination of a lease is an interest in land within the meaning of the present Act, but that other interests in expectancy are not such interests. And that being so, it is of little importance to discuss whether reversions, remainders, and executory interests are included in "land" or not; for no question appears to arise about reversions, etc., in the other sections of the Act, which is not answered by the presence of the words "interest in land" or "the fee simple" in the context, see e.g. s. 1 (a), supra, p. 59; s. 25 (1), supra, p. 199.

In s. 2 (2), supra, p. 76, and in s. 25, supra, p. 199, which lay down principles for ascertaining the value of "land," the meaning of the term is of course of great importance, and it is submitted, infra, p. 221, that "easements" and "tolls" (although not included in "land") may in certain circumstances have to be taken into account in ascertaining the value of land.

Minerals.-Unless where the context shows otherwise, the word "land" as used in Part I. appears to include a reference to minerals; cf. s. 23 (2), supra, p. 188, by which, for the purposes of valuation, all minerals shall be treated as a separate parcel of land.

Rentcharge. The definition of rentcharge is made exhaustive for the purposes of the Act by the use of the word "means." It is unnecessary, therefore, to discuss the general meaning of the term. Everything here defined as a rentcharge is an incorporeal hereditament. Any rentcharge as here defined is a “fixed charge” within the definition of the latter.

Tithe.-Tithes constituted the provision, or a portion of the provision, for the ministers of the Established Church, being a fund for their maintenance generally issuing out of land, and amounting to a tenth part of the yearly produce of the soil; but many rights of tithe are now vested in lay hands (Goodeve, 5th edn., 348-350).

Tithe Rentcharge.-See the Tithe Commutation Act, 1836 (6 & 7 Will. 4, c. 71), and the various amending Acts. There are many local Acts imposing periodical payments in lieu of, or in the nature of, tithe in particular parishes.

Fee-farm Rent." A rentcharge is where the owner of the rent hath no future interest, or reversion expectant in the land, as where a man by deed maketh over to others his whole estate in fee-simple, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress. In this case the land is liable to the distress... by virtue of the clause in the deed. . . . A fee-farm rent is a rentcharge issuing out of an estate in fee: of at least one-fourth of the value of the lands, at the time of its reservation (Blackstone, Sweet's edn., 1844, II., 41-43; see also Foley's Charity Trustees v. Dudley Corporation, [1910] 1 K. B. 317).

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Rent Seck or barren rent is in effect nothing more than a rent

reserved by deed, but without any clause of distress" (Black. II. 42). Sect. 41. A right of distress in respect of rents seck, chief rents, and rents of assize has however been given by 4 Geo. 2, c. 28, s. 5.

Chief Rent-Rent of Assize.-"Rents of assize are the certain established rents of the freeholders and antient copyholders of a manor, which cannot be departed from or varied. Those of the freeholders are frequently called chief rents" (ibid., 42).

Other Perpetual Rent or Annuity.-Not all the rents named specifically in this definition are necessarily perpetual; but any rent or annuity granted out of land, and not so named, must be perpetual, in order to come within the definition of rentcharge. Cf. Thomas v. Sylvester (1873), L. R. 8 Q. B. 368.

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Rent, by the Conveyancing Act, 1881, s. 2 (ix.), “includes yearly or other rent, toll, duty, royalty or other reservation, by the acre, the ton, or otherwise.' A rentcharge as above defined is not in the present Act included in rent. A reference to rent," as here defined, occurs in s. 31, supra, p. 256. The present definition of rent is somewhat enlarged for the purpose of the provisions as to minerals; see s. 24, supra, p. 193.

It

The word rent" in the Act of 1881 is used "to include rent so called-that is, rent which does not issue out of the thing demised and in respect of which there can be no distress"; Brown v. Peto, [1900] 2 Q. B., p. 664, per VAUGHAN WILLIAMS, L.J. seems doubtful, however, whether the word "rent" would include a yearly sum agreed to be paid for goodwill, fixtures, and fittings, such as was held not to be the subject of distress in Cox v. Harper, [1910] W. N. 34; 26 T. L. R., 264, supra, p. 262.

Lease. The phrase, "term of years," is used in this definition in a somewhat different sense than that in which "term" is used in the definition of the " term of a lease," or in which the phrase "term of years" is used in the definition of "interest" in relation to land; in both those places it means a period of years. In the definition of "lease," it appears to mean the interest granted for a period of years to the lessee by the lease. When a term of years created for the purpose of securing money becomes vested in some person free from the equity of redemption (e.g. when the term has been assigned to a purchaser in consequence of non-payment of the money secured by the term) difficult questions may arise as to the operation of the Act. It would appear that such an assignment may be the grant of a lease of the land within the meaning of s. 1 (a), supra, p. 59, and may so be an occasion on which increment value duty is due. In such a case it is difficult to see how, and upon what value, the duty is to be collected. And upon the determination of the term, reversion duty may become payable under s. 13 (1), supra, p. 122; in such a case there may be considerable difficulty in estimating the total value of the land at the time of the original grant of the lease upon the principles laid down in s. 13 (2). Lessor" and "lessee are also defined by the present section.

The definition of "lease" says nothing about reversionary leases; but, as the definition does not purport to be exhaustive,

RENTCHARGE.

Sect. 41. there appears to be nothing to prevent such a lease being included where the context permits. See, on this point, notes to the definition of "owner," infra, p. 313, and to s. 14, supra, p. 132. 'Mining lease"; see definition in s. 24, supra, p. 194.

LEASE.

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The Term of a Lease.-Where there is a covenant to renew the lease, the period for which the lease is originally granted, and the period for which it may be renewed under the covenant, must be added together; and the result is the term of the lease within the meaning of the present Act. The phrase, “original term," used in s. 14 (2) and (3), apparently means the term of the lease, calculated according to the present definition, and does not appear to set up any distinction between the term before renewal, and the term of the lease as renewed, where the renewal takes place under a covenant in the lease.

In a lease for a life or lives, the "mean expectation of life" will have to be calculated upon actuarial tables, and must apparently be reckoned as from the date when the lease is granted; the actual facts which may have arisen before the time when the computation is made, and the mean expectation of life at that time, do not appear to be relevant.

The term of a lease may have to be calculated for the purposes of s. 1 (a), supra, p. 59, and for those of s. 14, supra, p. 127, as well as for the definitions of "interest in relation to land" and 66 owner in the present section. As to the method of calculation, see also the note on term of years," in s. 1, supra, p. 69.

As to the inclusion or exclusion of the term of a reversionary lease, see note on the definition of "owner," infra, p. 313.

The term of a copyhold interest, such as is described in sub-s. (2) of s. 40, may have to be computed according to the principle here laid down, vide supra, p. 300.

The words" and a lease renewed . . . deemed to be determined" at the end of the definition, appear to have reference to the reversion duty, which is charged on the determination of any lease of land under s. 13 (1), supra, p. 122.

Interest in Relation to Land.-This expression includes any undivided share in a fee simple in possession, as well as a reversion expectant on the determination of a lease. It excludes (a) an interest in expectancy, other than a reversion expectant on the determination of a lease; (b) an incumbrance as defined in this section; (c) any fixed charge as defined in this section; (d) any purely incorporeal hereditament; (e) any leasehold interest under a lease, as defined in this section, for a term of years not exceeding fourteen years (cf. s. 1 (a), supra, p. 59); and (f) the Irish tenancies specified. The words "interest in land" occur passim in ss. 1-12 relating to increment value duty, where their meaning. which is no doubt governed by the definition now considered, and is of great practical importance. See also ss. 35 and 37, supra, pp. 277 and 280. A person interested in the land" is given certain rights in connection with valuation by s. 27 (5), supra, p. 241. Besides the cases cited in the following notes, those cited in the

66

Transfer on Sale," supra, p. 62, may be consulted with Sect. 41.

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Purely Incorporeal Hereditament.-It has been submitted, supra, p. 305, that this phrase covers all incorporeal hereditaments other than reversions, remainders, and executory interests, some of which are provided for in the definition of "interest in relation to land." The nature of incorporeal hereditaments has been briefly discussed, supra, p. 305. Some of these may require for their enjoyment the exclusive possession of land; see the following notes, and the notes on "separate occupation," supra, p. 234.

Easements. Of all the purely incorporeal hereditaments thus excluded from the definition of "interests in relation to land," probably the most important are easements. But an easement may be so extensive in its nature that the enjoyment of it may require the entire and exclusive possession (Doe dem. The Queen v. Archbishop of York (1849), 14 Q. B. 81. Accordingly it has been suggested in the note on the word "easements" in s. 25 (3), supra, p. 221, that the principle of Metropolitan Rail. Co. v. Fowler [1893], A. C. 416, applies to the interpretation of the word in that subsection, and not that of Chelsea Waterworks Co. v. Bowley (1851), 17 Q. B. 358; in other words, that there may be many rights which, though apparently mere easements, are in fact something more, and form a part of the "land," or a part of the value of the land. See also the note in connection with easements under Separate Occupation," supra, p. 234. If the view there suggested is correct, it may be necessary, in cases where land is used in any manner comparable to the user in Metropolitan Rail. Co. v. Fowler, supra, to inquire whether the person so using the land possesses a mere easement or "purely incorporeal hereditament," or whether he in fact possesses an interest in the land. It is submitted, to put the matter in another way, that in the case of what appears to be an easement, the distinction between a "purely incorporeal hereditament" and an "interest in land" within the meaning of the present Act must often depend on the facts of the user, rather than upon the terms of the grant. As to the bearing of the above remarks upon the valuation of "land," vide supra, p. 211.

66

66

Tolls.-Whether tolls are incorporeal hereditaments" is a matter which is not necessary to be considered for the present purpose. (Certain harbour tolls have been held not to be hereditaments within the Mortmain Acts (In re Christmas, supra); but, on the other hand, Co. Litt., 47a, includes fairs and markets among incorporeal hereditaments.) For, whether they be hereditaments or not, it is clear that tolls per se are incorporeal; that is, they have per se no substance or locality, and are not real property; see the cases relating to the non-rateability of ferry tolls, R. v. Nicholson (1810), 12 East. 330; Williams v. Jones, ibid., 346; R. v. North and South Shields Ferry Co. (1852), 1 E. & B. 140. On the other hand, where tolls are profits arising from the use of particular land, as in the cases of canals, bridges, railways or water-pipes and mains, they may add to the value of that land (R. v. Macdonald (1810), 12 East. 324; per BAYLEY, J., in R. v. Nicholson, 12 East. at p. 346; per CAMPBELL, C.J., in North and South Shields Case, 1 E. & B. at pp. 145-6. And "when tolls are attached to and

INTEREST IN
RELATION
TO LAND.