administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either.(i) 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.(2) *This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner of the land appointed by [ *261] 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,() 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,(7) 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.(n) *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.(0) 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. (3) (i) But see now the statute 5 Geo. III, c. 17, which makes leases for one, two, or three lives, by ecclesiastical persons or any eleemosynury corporation, of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions. (j) l. 2, c. 2. (k) Inst. 2. 1, 22. (1) Salk. 637. See page 39. (n) Bract. l. 2, ĉ. 2. Callis, of sewers. 22. (0) 2 Roll. Abr. 170.

Dyer, 326.

(m) Inst. 2, 1, 22.
(p) Callis, 24, 28.

simple, and if there shall be no special occupant, it goes to the executor or administrator, to be upplied and distributed in the same manner as the personal estate.

(2) [In the mining districts of Derbyshire and Cornwall, by the laws of the Stannaries, an estate in mines might, and it is believed still may, be gained by occupancy. Geary v. Barcroft, 1 Sid. 347.]

(3) [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

In the same manner if a river, running 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; (4) 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.(q) (5) 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 the law in the king.

(q) Callis, 28.

(r) Inst. 2, 1, 20, 21, 22, 23, 24.

(8) See Book I, page 298.

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. and C. 91; 5 B. and A. 268; 3 Ad. and El. 554; 5 Nev. and M. 234; 3 B. and Ad. 862. From the late case of the King v. Lord Yarborough, 3 Bar. and 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. 2 Bligh, 187; 5 Bing. 163; 4 B. and Cr. 505. 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, 137.]

Upon this subject see the following American cases; Adams v. Frothingham, 3 Mass. 352; Deerfield v. Arms, 17 Pick. 41; Trustees v. Dickinson, 9 Cush, 544; Emans v. Turnbull, 2 Johns. 322; Halsey v. McCormick, 18, N. Y. 147; Giraud v. Hughes, 1 Gill and J. 249; Chapman v. Hoskins, 2 Md. Ch. 485; Lamb v. Rickets, 11 Ohio, 311; Morgan v. Livingston, 6 Mart. La. 19; New Orleans v. United States, 10 Pet. 662; St. Louis Public Schools v. Risley, 40 Mo. 356; Patterson v. Gelston, 23 Md. 432.

(4) [And the same rule holds good as between the crown and a subject in the case of a gradual encroachment of the sea. 5 Mee. and W. 327.]

(5) See cases cited in note 3. Also Lynch . Allen, 4 Dev. and Bat. 62; Woodbury v. Short, 17 Vt. 387. As to alluvion formed on the shore of a lake or natural pond, see Murray v. Sermon, 1 Hawks, 56. Controversies frequently arise, in the case of alluvion; as to the proper division of the increase between the adjoining proprietors on the same side of the water, whose water front is thus extended, but the division line between whom may not, perhaps, have intersected the original shore line at right angles. In such a case the land formed by the alluvion is to be so divided as to give to each proprietor a length on the new water line proportioned to his length on the old water line, whether the one be longer or shorter than the other. Trustees v. Dickinson, 9 Cush. 544; People v. Canal Appraisers, 13 Wend. 355; O'Donnell v. Kelsey, 4 Sandf. 202; Deerfield v. Arms, 17 Pick. 41; Emerson v. Taylor, 9 Greenl. 44; Newton v. Eddy, 23 Vt. 319; Kennebeck Ferry Co. v. Bradstreet, 28 Me. 374. These cases will illustrate the rule and its application under different circumstances. See also Clark v. Campau, 19 Mich. 325; 13 Kent, 428; Ang. on Watercourses, §§ 53 to 60; Ang. on Tide Waters, 249 to 253.

502

CHAPTER XVII.

III. OF TITLE BY PRESCRIPTION.

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show 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 show what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that cus tom is properly a local usage, and not annexed to any 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 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 ancestors, or all those whose estate he hath in the said manor, [*264]

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.(1) 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. (ƒ) (2)

(a) See book I, page 75, &c. (b) Co. Litt. 113. (c) 1 Lev. 176. (d) 4 Rep. 32. (e) Co. Litt. 113. (This title, of prescription, was well known in the Roman law by the name of usucapio (Ff. 41, 3, 3), so called, because a man, that gains a title by prescription, may be said usu rem capere.

(1) [See 6 Mee. and W. 542; 6 Jur. 837; 6 Scott, 167; 11 Ad. and E. 819. A right acquired by prescription may be lost by abandonment or non-user. After twenty years of non-user the court would generally presume that the right had been released, and abandonment may be inferred from unequivocal acts within a much shorter time; as by pulling down a wall, in which was an ancient light, and erecting a blank wall in its place. 3 B. and Cr. 336; 3 Ad. and El. 325.]

(2) [To remedy the defects in the methods of acquiring title by prescription, the act 2 and 3 Wm. IV, c. 71, commonly called Lord Tenterden's act, was passed, by which the user which should render a title to an easement indefeasible is defined.

By the first section it is declared that no claim which might lawfully be made at the common law, by custom, prescription or grant, to any right of common or other profit a prendre, except such matters and things as are therein specially provided for (meaning rights of way or other easements, watercourses and lights), shall, if it have been uninterruptedly enjoyed by any person claiming right thereto for thirty years, be defeated by showing the commencement of the enjoyment of such right prior to the period of thirty years. But any other mode of defeating the claim which was before, is to continue to be available for that purpose, except that an uninterrupted enjoyment for sixty years (unless had by consent, expressly given by deed or writing), is to confer an absolute and indefeasible title.

By the next section, when the right claimed is a right of way or other easement or a water course, or the use of any water-see Webb v. Bird, 31 L. J. C. P. 335-the above periods of thirty and sixty years are reduced to twenty and forty respectively.

By the third section, the claim to the access and use of light for any dwelling house, workshop or other building, if actually enjoyed, otherwise than by consent or agreement in writing,

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 [*265] life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates. () For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for anything, 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 raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. (3) Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by

is made indefeasible after twenty years' user, any local user or custom to the contrary notwithstanding. In this case the necessity for proving that the easement had been used as of right is dispensed with. But by other sections, provision is made to meet the cases where the persons who are interested in contesting the right are incapacitated, or only entitled in reversion, and an explanation is given that nothing is to be deemed an interruption unless it is submitted to for a year.

It will be seen from the above statement of the act, that if the easement be enjoyed under a parol license, extending over the periods of thirty or twenty years (except in the case of light), this fact is sufficient to defeat the claim: for then the user would not be as of right, and so would not come within the act: and a parol license was always at common law sufficient to rebut the presumption of a grant. Tickle v. Brown, 4 A. and E. 369; S. C., 6 N. and M. 230. And where the nature of the right is such that it could not be claimed as of right, the act evidently does not apply; for instance, where the claim is to the overflow of water from a canal, consequent upon boats passing through the locks of the canal. Staffordshire, &c. Canal Nav. v. Birmingham Canal, L. R. 1 H. L. E. and J. 254.

As to the nature of the user, and whether it is of right within the intention of the act, see War burton v. Parke, 2 H. and N. 64; Bright v. Walker, 1 Cr. M. and R. 211; Onley v. Gardiner, 4 M. and W. 495; Beasley v. Clarke, 3 Scott, 233; England v. Wall, 10 M. and W. 699; Eaton v. Swansea Water Co., 17 Q. B. 267.]

(3) [The general rule with regard to prescriptive claims is, that every such claim is good if by possibility it might have had a legal commencement: 1 Term. R. 667, ante, pp. 31 and 35, and notes; and from upwards of twenty years' enjoyment of an easement or profit a prendre, grants, or, as Lord Kenyon said, even a hundred grants, will be presumed, even against the crown, if by possibility they could legally have been made. 11 East, 284, 495. Thus a fair or market may be claimed by prescription, which presumes a grant from the king, which by length of time is supposed to be lost or worn out: Gilb. Dist. 22; but if such a grant would be contrary to an express act of parliament it would be otherwise. 11 East, 495. But an exception to the general rule is the claim of toll thorough, where it is necessary to show expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse. 1 T. R. 667; 1 B. and C. 223. An ancient grant without date does not necessarily destroy a prescriptive right for it may be either prior to time of legal memory or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bla. R. 989. Nor will a prescriptive right be destroyed by implica tion merely in an act of parliament. 3 B. and A. 193.]

any grant, it shall not be good by prescription. (i) A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felon's goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record. (k) (4) 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds), nothing *is claimable by this prescription, but such things as are incident, appendant, or appurtenant to [*266] lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connexion; but if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant: not only things that are appurtenant, but also such as may be in gross. () Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal. (5)

(i) 1 Vent. 387.

(k) Co. Litt. 114.

(7) Litt. § 183. Finch, L. 104.

(4) [The reason for this distinction is not very satisfactory; though the forfeiture must be matter of record, there seems no ground why the right to receive that forfeiture might not be claimed by prescription: at all events there is some inconsistency, for a man may prescribe for a court leet, which is a court of record, as well as for a county palatine, and by reason thereof to have the forfeitures in question. Co. Litt. 114, b.]

(5) The term "prescription" is in strictness applicable only to incorporeal hereditaments Ferris v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Penn. St. 431. In order to raise the presumption of a grant, the user must have been peaceable and open, and it must have been adverse to the owner of the land. Sargent v. Ballard, 9 Pick. 251; Brace v. Yale, 10 Allen, 441; Watkins v. Peck, 13 N. H. 360; Corning v. Gould, 16 Wend. 531; Colvin v. Burnett, 17 id. 564; Trask v. Ford, 39 Me. 437; Perrin v. Garfield, 37 Vt. 310. It must also have been continuous for the whole period. Pollard v. Barnes, 2 Cush. 191; Branch v. Doane, 18 Conn. 233; Pierre v. Fernald, 26 Me. 436; Rogers v. Sawin, 10 Gray, 376. And if the mode of user has been changed during the time, the party can claim only to the extent that he has continuously enjoyed the easement, or other right for the whole time. Monmouth, &c., Co. v. Harford, 1 C. M. & R. 614; Dandr. Kingscote, 6 M. & W. 174. Stackpole v. Curtis, 32 Me. 333; Biglow v. Battle, 15 Mass. 313; Darlington v. Painter, 7 Penn. St. 473; Belknap v. Trimble, 3 Paige, 577. But although the extent of the right is to be measured and regulated by the enjoyment upon which the right is supported, the party is yet allowed freedom in the manner of exercising it. See Ang. on Watercourses, 226, and cases cited. And on the general subject, see Bowman v. Wickliffe, 15 B. Monr. 84; Garrett v. Jackson, 20 Penn. St. 331; Tyler v. Wilkinson, 4 Mason, 397; Thomas v. Marshfield, 13 Pick. 248, Ricard v. Williams, 7 Wheat, 109; Morrison v. Chapin, 97 Mass. 72.

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