ain what is implied by the Roman metaphors； it goes too far。 The dominant estate was never 〃erected into a legal person；〃 either by conscious fiction or as a result of primitive beliefs。 /4/ It could not sue or be sued； like a ship in the admiralty。 It is not supposed that its possessor could maintain an action for an interference with an easement before his time； as an heir could for an injury to property of the hereditas jacens。 If land had even been systematically treated as capable of acquiring rights； the time of a disseisee might have been added to that Of the wrongful occupant； on the ground that the land； and not this or that individual； was gaining the easement； and that long association between the enjoyment of the privilege and the land was sufficient； which has never been the law。
All that can be said is； that the metaphors and similes employed naturally led to the rule which has prevailed； ＇385＇ and that； as this rule was just as good as any other； or at least was unobjectionable； it was drawn from the figures of speech without attracting attention； and before any one had seen that they were only figures； which proved nothing and justified no conclusion。
As easements were said to belong to the dominant estate； it followed that whoever possessed the land had a right of the same degree over what was incidental to it。 If the true meaning had been that a way or other easement admits of possession； and is taken possession of with the land to which it runs； and that its enjoyment is protected on the same grounds as possession in other cases； the thought could have been understood。 But that was not the meaning of the Roman law； and； as has been shown； it is not the doctrine of ours。 We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights。 It need not be said that this is absurd； although the rules of law which are based upon it are not so。
Absurd or not； the similes as well as the principles of the Roman law reappear in Bracton。 He says； 〃The servitude by which land is subjected to ＇other＇ land； is made on the likeness of that by which man is made the slave of man。〃 /1/ For rights belong to a free tenement； as well as tangible things。。。。 They may be called rights or liberties with regard to the tenements to which they are owed； but servitudes with regard to the tenements by which they are owed 。。。。 One estate is free； the other subjected to slavery。〃 /2/ 〃＇A servitude＇ may be called an arrangement by which house is subjected to house； farm to ＇386＇ farm； holding to holding。〃 /1/ No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin； but what he says leaves little doubt that he followed the Roman law in this as in other things。
The writ against a disseisor was for 〃so much land and its appurtenances；〃 /2/ which must mean that he who had the land even wrongfully had the appurtenances。 So Bracton says an action is in rem 〃whether it is for the principal thing； or for a right which adheres to the thing； 。。。 as when one sues for a right of way； 。。。 since rights of this sort are all incorporeal things； and are quasi possessed and reside in bodies； and cannot be got or kept without the bodies in which they inhere； nor in any way had without the bodies to which they belong。〃 /3/ And again； 〃Since rights do not admit of delivery； but are transferred with the thing in which they are； that is； the bodily thing； he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are。〃 /4/
There is no doubt about the later law； as has been said at the outset。
We have thus traced two competing and mutually inconsistent principles into our law。 On the one hand is the conception of succession or privity； on the other； that of rights inhering in a thing。 Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two。 The benefit of a warranty was confined to those who； by the act and consent of the ＇387＇ grantee； succeeded to his place。 It did not pass to assigns unless assigns were mentioned。 Bracton supposes grants of easements with or without mention of assigns； which looks as if he thought the difference might be material with regard to easements also。 He further says； that if an easement be granted to A； his heirs and assigns； all such by the form of the grant are allowed the use in succession； and all others are wholly excluded。 /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title； and he immediately adds that they are rights over a corporeal object belonging to a corporeal object。
Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land； and although it is very certain that it did not remain so long； the difficulty referred to grew greater as time went on。 It would have been easily disposed of if the only rights which could be annexed to land were easements； such as a right of way。 It then might have been said that these were certain limited interests in land； less than ownership in extent； but like it in kind； and therefore properly transferred by the same means that ownership was。 A right of way； it might have been argued； is not to be approached from the point of view of contract。 It does not presuppose any promise on the part of the servient owner。 His obligation； although more troublesome to him than to others； is the same as that of every one else。 It is the purely negative duty not to obstruct or interfere with a right of property。 /2/
＇388＇ But although the test of rights going with the land may have been something of that nature； this will not help us to understand the cases without a good deal of explanation。 For such rights might exist to active services which had to be performed by the person who held the servient estate。 It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract。 Still this will be found to have been the way in which such rights were regarded。 Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift； on the ground that the land is bound and charged with the services into whose hands soever it may come。 The lord is said to have a fee in the homage and services； and therefore no entry upon the land which does not disturb them injures him。 /1/ It is the tenement which imposes the obligation of homage； /2/ and the same thing is true of villein and other feudal services。 /3/
The law remained unchanged when feudal services took the form of rent。 /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased premises； so that to this day； although； if you hire a whole house and it burns down； you have to pay without abatement； because you have the land out of which the rent issues； yet if you only hire a suite of rooms and they are burned； you pay rent no longer； because you no longer have the tenement out of which it comes。 /5/
＇389＇ It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself； and this conclusion was adopted by the early law。 The lord could require the services； /1/ or collect the rent /2/ of any one who had the land； because； as was said in language very like Bracton's； 〃the charge of the rent goes with the land。〃 /3/
Then as to the right to the rent。 Rent was treated in early law as a real right； of which a disseisin was possible； and for which a possessory action could be brought。 If； as was very frequently the case； the leased land lay within a manor； the rent was parcel of the manor； /4/ so that there was some ground for saying that one who was seised of the manor； that is； who possessed the lands occupied by the lord of the manor； and was recognized by the tenants as lord； had the rents as incident thereto。 Thus Brian； Chief Justice of England under Henry VII。； says； 〃If I am disseised of a manor； and the tenants pay their rent to the disseisor； and then I re…enter； I shall not have the back rent of my tenants which they have paid to my disseisor； but the disseisor shall pay for all in trespass or assize。〃 /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement。 Sic fit ut debeantur rei a re。 /6/
Different principles might have applied when the rent was not parcel of a manor； and was only part of the reversion； that is； part of the landlord's fee or estate out of ＇390＇ which the lease was carved。 If the lease and rent were merely internal divisions of that estate； the rent could not be claimed except by one who was privy to that estate。 A disseisor would get a new and different fee； and would not have the estate of which the rent was part。 And therefore it would seem that in such a case the tenant could refuse to pay him rent； and that payment to him would be no defence against the true owner。 /1/ Nevertheless； if the tenant recognized him； the disseisor would be protected as against persons who could not show a better title。 /2/ Furthermore； the rent was so far annexed to the land that whoever came by the reversion lawfully could collect it； including the superior lord in case of escheat。 /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts； and although Bracton regarded the lord as coming in under the tenant's title pro herede； in privity； it was soon correctly settled that he did not； but came in paramount。 This instance； therefore； comes very near that of a disseisor。
Services and rent； then； were； and to some extent are still； dealt with by the law from the point of view of property。 They were things which could be owned and transferred like other property。 They could be possessed even by wrong； and possessory remedies were given for them。
No such notion was applied to warranties； or to any right which was regarded wholly from the point of view of contract。 And when we turn to the history of those remedies for rent which sounded in contract； we find that they were s