Incorporeal
Rights/Hereditaments
Hereditaments are of
two kinds: corporeal and incorporeal. Corporeal hereditaments
consist of such that affect the senses, such as may be seen and handled by the
body. Corporeal hereditaments consist of substantial and permanent objects. A
corporeal hereditament is the thing itself which is the subject of the right;
an incorporeal hereditament is not the subject of the right, but the right
itself.
Incorporeal
hereditaments are not the object of
sensation, can neither be seen nor handled; are creations of the mind and
exists only in contemplation. An incorporeal hereditament is an inheritable and
transferable right existing on land. An Incorporeal
hereditament is that thing which has no physical existence but capable of
being owned or possessed.
Therefore, incorporeal
hereditaments will include rights on land though not capable of physical
existence or possession but actually existing and capable of being enforced in
law. The rights accrue to a person by virtue of the ownership of land. Such
rights like easements, profit or rents will qualify under this category. By easements we mean for instance, a right to walk across someone
else’s land and by profits we mean
for instance, a right to enjoy or take away something like sand, from the land
of another.
In Okunzun v. Amosu (1992) 6 NWLR (Pt. 258) 416, the Supreme Court
defined easement as a right annexed
to land which entitles the owner to enjoy and utilize land owned by another
person in a particular manner and it may sometimes give additional rights to
prevent the owners of a dominant easement from utilizing his own land in a
particular manner. Conversely, profit is
the right to enjoy certain benefits from the land of another; for example, the
right to pluck coconut or wild fruit or hunt on the land of another. It may
sometimes include the right to dig sand or gravel from the land of another.
The law in this area
recognized circumstances under which an individual may establish and enforce a
right in relation to the land of another person without being in possession of
that land. Upon transmission of the land during inheritance, these incorporeal
rights are also transmitted or inherited; hence they are sometimes referred to
as Incorporeal Hereditaments.