life it was holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy. (c) This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly (d) was ̧ supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived; it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it: much less of so minute a remnant as this: it did not belong [259] to the grantee; for he was dead: it did not descend to his heirs ; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi. (e) And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety; (ƒ) and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II. c. 3. which enacts (according to the ancient rule of law) (g) that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors or administrators, and be assets in their hand for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, d Bract. l. 2. c. 9. 1. 4. tr. 3. c. 9. § 4. Flet. l. 3. c. 12. § 6. l. 5. c. 5. § 15. f Vaugh. 201. g Bract. ibid. Flet. ibid. c Co. Litt. 41. e Co. Litt. 41. (2) The statute seems inaccurately stated in this sentence. The 12th section enacts, “That estates pur auter vie shall be devisable by will in writing, signed by the devisor, or by his agent, in presence of three witnesses; and if no such devise be made, the same shall be chargeable in hands of heir, if it shall come to him by reason of special occupancy, as assets by descent; and in case there be no special occupant, it shall go to the executor or administrator of the party who had the estate thereof by virtue of the grant, and shall be assets in his hands." Mr. Christian observes, "The meaning of the statute seems to be this, that every estate pur auter vie, whether there is a special occupant or not, may be devised like other estates in land, by a will attested by three witnesses. If not devised, and there is a special occupant, then it is assets by descent in the hands of the heir; if there is no special occupant, then it passes like personal property to executors and administrators, and shall be assets in their hands." Lord Kenyon in 6 Term Rep. 291. observed, "These questions on estates per auter vie do not frequently arise. Such estates certainly are not estates of inheritance: they have been sometimes called, though improperly, descendible freeholds; strictly speaking, they are not descendible freeholds, because the heir at law does not take by descent. If an action at common law had been brought against the heir on the bond of his ancestor, he might have pleaded riens per descent, for these estates were not liable to the debts of the ancestor before the statute of frauds. That act made them chargeable in the hands of the heir, as assets by descent, if he took by reason of a special occupancy; and if there be no special occupant, it directs that they shall go to the executors, subject to the debts of the testator; and the statute 14 Geo. II. c. 20. renders them distributable as personalty. An estate pur auter vie therefore partakes somewhat of the nature of a personal estate, though it is not a chattel interest, it still remains a freehold interest for many purposes; such [260] that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest. By these two statutes the title of common occupancy is utterly extinct and abolished; though that of special occupancy by the heir at law continues to this day; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like, (g) (because, with respect to them, there could be no actual entry made, or corporeal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined), so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion; but merely to dispose of an interest in being, to which by law there was no owner, and which therefore was left open to the first occupant. When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either. (h) They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy. [261] This, I say, was the only instance; for I think there can be no g Co. Litt. 41. Vaugh. 201. h But see now the statute 5 Geo. III. c. 17. which makes leases for one, two, or three lives, by ecclesiastical persons or any eleemosynary corporation, of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions. as giving a qualification to vote for members of parliament, and to kill game, and some others; a will to dispose of it must also be attested by three witnesses under the statute of frauds. If such an estate be given to A. and the heirs of his body, the heirs of the body will take as special occupants, if no disposition be made of it by the first taker; but it is absolutely in his power to make what disposition of it he pleases. Atk. 524. 3 P. W. 266. n. E. and Grey v. Mannock." It has been held that there can be no general occupancy of a copyhold, because the freehold is always in the lord; and the statutes 29 Car. II. c. 3. s. 12. and 14 Geo. II. c. 20. s. 9. appropriating estate pur auter vie, where there is no special occupant, do not extend to copyholds. And one who was admitted tenant upon a claim as administrator de bonis non to the grantee of a copyhold pur auter vie, baving no title in such character, cannot recover in ejectment by virtue of such admission as upon a new and substantive grant of the lord. 7 East, 186. If an estate pur auter vie be limited to a man, his heirs, executors, administrators, and assigns, and be not devised, it descends to his heir as special occupant, and is only liable for specialty debts. 4 Term R. 229. If it be limited to a person and his executors administrators, and assigns, the executors take it, subject to the same debts as personalty. 4 T. R. 224. 229. Chitty. (3) Lord-keeper Harcourt has declared, there is no difference since the 29 Car. II. c. 3. between a grant of corporeal and incorporeal hereditaments pur auter vie; for by that statute every estate pur auter vie is made devisable, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or adminis trators of the grantee, and be assets in their hands; and the statute, in the case of rents and other incorporeal hereditaments, does not enlarge, but only preserves the estate of the grantee. 3 P. Wms. 264. n.—Mr. Christian's note. (4) In page 113. ante, it is said, that an estate pur auter vie cannot be entailed; yet if such an estate be limited to A in tail, with remainder to B., these limitations are designations of the persons who shall take as special occupants; but any alienation of the quasi tenant in tail will bar the interest of him in remainder. See 3 Cox, P. Wms. 266. and 6 T. R. 293., where it appears to have been the opinion of lord Northington and lord Kenyon that the tenant in tail of an estate pur auter vie may bar the remainders over by his will alone.-Mr. Christian's note. See also. 1 Atk. 524. 2 Vern. 225. 3 Cox, P. Wms. 10. n. 1. 1 Bro, Por Ca 457. other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced, And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat. So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England assigns them an immediate owner. For Bracton tells us, (i) that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore: which is agreeable to, and probably copied from, the civil law. (k) Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores; for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed, (1) there it seems just (and so is the constant practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owneth the piscary and the soil. However, in case a new island rise in the sea, though the civil law gives it to the first occupant, (m) yet ours gives it to the king. (7) And as to lands gained from the sea, either by alluvion, by the washing up of sand [262] and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual watermark; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining. (o) For de minimis non curat lex: and, besides, these owners, being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But if the alluvion or dereliction be sudden and considerable, in this case it belongs to the king; for as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable he should have the soil, when the water has left it dry. (p) So that the quantity of ground gained, and the time during which it is gaining, are what make it either the king's or the subject's property. In the same manner if a river, running i l. 2. c. 2. 5 k Inst. 2. 1. 22. (5) See these subjects of alluvion, avulsion, and reliction, and islands arising in the sea and rivers fully considered, and the cases collected in the able treatise of Mr. Schultes on Aquatic Rights, who in pages 115 to 138. draws this conclusion, "that all islands, relicted land, and other increase arising in the sea and in navigable streams, except under local circumstances before alluded to, belong to the crown; and that all islands, relicted land, and the soil of inland unnavigable rivers and streams under similar circumstances belong to the proprietor of the estates to which such rivers act as boundaries; and hence it may be considered as law, that all islands, sand beds, or other parcels of agglomerated or concreted earth which newly arise in rivers, or congregate to their banks by alluvion, reliction, or other aqueous means, as is frequently to be observed in rivers where the current is irregular, such accumulated or relicted property belongs to the owners of the neighbouring estates. Schultes on Aquatic Rights, 138. See further, Com. Dig. Prerog. D. 61. Bac. Ab. Prerogative. 3 Bar. & C. 91. 5 B. & A. 268. From VOL. I. 74 between two lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who loses his ground thus imperceptibly has no remedy: but if the course of the river be changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, it is said that he shall have what the river has left in any other place, as a recompense for this sudden loss. (9) And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law; (r) from whence indeed those our determinations seem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases; and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before mentioned, as upon this other general ground of prerogative, which was formerly remarked, (s) that whatever hath no other owner is vested by law in the king. CHAP. XVII. III. OF TITLE BY PRESCRIPTION. A THIRD method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries. (a) At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew what sort of things may be prescribed for. And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to a person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have q Callis, 28. r Inst. 2. 1, 20, 21, 22, 23, 24. s See Book I. pag. 298. d 4 Rep. 32 a See Book I. pag. 75, &c. the late case of the King v. Lord Yarborough, 3 Bar. & Cres. 91. (though the decision turned rather upon the pleadings and evidence than the general law of alluvion and reliction), and the cases cited, id. 102., it may be collected that if the salt water leave a great quantity of land on the shore, the king shall have the land by his prerogative, and not the owner of the adjoining soil; but not so when dry land is formed gradually, and by insensible imperceptible degrees, by alluvions or relictions, however large it may ultimately become. As to unnavigable rivers, there is a case cited in Callis, 51. from the 22 lib. ass. pl. 93. which fully establishes the law. "The case was, that a river of water did run between two lordships, and the soil of one side, together with the river of water, did wholly belong to one of the said lordships, and the river by little and little, did gather upon the soil of the other lord, but so slowly, that if one had fixed his eye a whole day thereon together, it could not be perceived. By this petty and imperceptible increase, the increasement was got to the owner of the river, but if the river by a sudden and unusual flood, had gained hastily a great parcel of the other lord's ground, he should not thereby have lost the same; and so of petty and unperceivable increasements from the sea, the king gains no property for de minimis non curat lex."" N. B. In the above text, it is supposed" he shall have what the river has left in any other place as a recompense for his sudden loss," ," but the case in 22 ass. pl. 93. says that "neither party shall lose his land." Schultes on Aquatic Rights, 136, 7. Chitty. (1) See in general, Com. Dig. Prescription; Vin. Ab. Prescription; Bac. Ab. Customs; Saunders by Patteson, index, tit. Prescription, and tit. Custom, and ante 35. note 25, per tot. 1 such an advantage or privilege. (b) As for example; if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation (which is held (c) to be a lawful usage); this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the tenant, who is seised of the manor of Dale in fee, alleges that he and his ances- [264] tors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath : (d) which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended (e) for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made. (f) Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had. (g) For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for [265] years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates. (h) For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be 3 c 1 Lev. 176. d 4 Rep. 32. b Co. Litt. 113. e Co. Litt. 113. f This title, of prescription, was well known in the Roman law by the name of usucapio, (Fƒ. 41. 3. 3.) so called because a man, that gains a title by prescription, may be said usu rem capere. g Dr & St. dial. 1. c. 8. Finch, 132. (2) As to legal memory, ante 31. note 12. h 4 Rep. 31, 32. (3) Thus in prescribing for common appurtenant, a man avers his seisin in fee of the land to which he claims his common, and then says that he and all those whose estate he has in the land, from time whereof the memory of man is not to the contrary, had, and of right ought to have had, common of pasture in the place, where, &c. for his cattle levant and couchant, in the land where |