THE MODERN VIEW
Today, we think of property as the thing (not the rights) owned. Property is either real or personal. Real
property consists of:
1. Land;
2. Anything affixed and regarded as a permanent part of the land;
3. That which is incidental or appurtenant to the land; and
4. That which is immovable by law.
Land
Land includes the soil, rock, and other substances that compose the material of the earth. It also includes space.
Not just the space on the surface of the earth, but also the space beneath it to the center of the earth and the
space above it to the top of the sky.
The courts have recognized a public right to the use of airspace above private land as a “highway” available to
all so long as such use does not unreasonably interfere with the landowner’s enjoyment of the property. The
courts also recognize the fluid and “fugitive” or moving nature of subsurface oil and gas. The right of the
landowner to drill vertically into his or her land for the purpose of capturing these substances is a valuable part
of what is included in the ownership of land, but this does not include any right to drill slantwise under a
neighbor’s land for this purpose.
Things Affixed to Land
These include buildings, bridges and trees, as well as anything that is affixed to them (e.g., the doors of a
building, permanently installed cabinets, or built-in appliances).
Incidental or Appurtenant to the Land
This form of real property includes anything which is by right used with the land for its benefit.
Examples are watercourses or easements/rights of way over adjoining lands and even passages for light, air, or
heat from or across the land of another. Another example is stock in a mutual water company. When such stock
is “appurtenant to the land,” ownership of the stock may not be transferred unless the land is transferred with it.
Crops
A tenant’s crops, industrial growing crops and things attached to or forming part of the land which are agreed
to be severed before sale or under a contract of sale, are treated as goods.
“Modern” Estates
Section 761 of the California Civil Code (enacted in 1872) classifies estates in real property, with respect to
duration, as:
1. Estates of inheritance or perpetual estates;
2. Estates for life;
3. Estates for years; or
4. Estates at will.