of Deerfield v. Arms. In respect to alluvion formed upon the seashore, the "Shore," in the first place, is the space between highand low-water marks, occasioned by the ebb and flood of the tide. And the standard or test of this is, "the line of the medium high tide between the spring and the neaps"; whereas, by the civil law, "est autem littus maris quatenus hybernus fluctus maximus excurrit.” In respect to land along the shore gained by gradual accretion, as distinguished from some sudden acquisition, it belongs to the owner of the land upon which it forms. When the sea retreats suddenly, and leaves a tract of land uncovered, the same belongs to the crown or the State. The test of what is gradual, as distinguished from what is sudden, seems to be that, though witnesses are able to perceive, from time to time, that the land has encroached upon the sea line, it is enough, if it was done so that they could not perceive the progress at the time it was being made. Nor does it make any difference in the rights of the land-owner, that the accretion upon his land is the result of artificial causes, and not wholly from natural ones. The consequence is, the boundary line of an owner's land bordering upon the sea, varies with the gradual increase or diminution of quantity by the addition of alluvion, or by the wasting away before the action of the water, in its encroachments upon the land, the line of the shore varying accordingly.3 2. Cases sometimes occur, where considerable quantities of soil are by the sudden action of water taken from the land of one and deposited upon or annexed to the land of another. The difference between avulsion, as the latter process is called, and alluvion, consists in the one being done by imperceptible loss from the land of one, and increment to that of the other, and in the other, its being done suddenly to an extent which can be ascertained and measured. In the case of avulsion, the soil still belongs to the first owner, un[*453] less he shall have *suffered it to remain in its new position until it cements and coalesces with the soil of the second 1 Trustees, &c. v. Dickenson, 9 Cush. 544; Deerfield v. Arms, 17 Pick. 41. See Dig. 41, 1; 56, 1, and 64, 3. 2 Attorney-General v. Chambers, 4 De G., M. & G. 206, 216, 218; s. c. 4 De G. & J. 58; Hargrave, Tracts, 25; Scratton v. Brown, 4 B. & C. 495. 8 Attorney-General v. Chambers, 4 De G. & J. 55, 69, 70; King v. Yarborough, 1 Dow & C. 178, 186, 189; s. c. 3 B. & C. 91, 105, 106; Scratton v. Brown, 4 B. & C. 485, 498; In re Hull & Selby Railway, 5 M. & W. 328. owner, in which case the property in the soil will be changed, and no right to reclaim it remain.1 3. This right to alluvion is considered as an interest appurtenant to the principal land, and belonging, in the nature of an incident, to the ownership of that, rather than as something acquired by pre-· scription or possession, in the ordinary legal sense of those terms. And the right to land thus added to the former proprietorship, is termed a title by accretion.2 SECTION V. ABANDONMENT. 1. Doctrine of loss of title by abandonment stated. 2. Instances where the doctrine applies. 2 a. Effect of abandoning adverse possession on title. 3. No title abandoned by parol agreement. 4. No abandonment of title except by effect of limitation. 1. In connection with the subject of acquiring title by prescription, is to be considered the loss of title by abandonment. This implies some act done, and does not depend upon any presumption of the execution of an instrument of release having been made, which from lapse of time, has been lost. The doctrine of abandonment is usually applied to incorporeal hereditaments, though the dicta of judges, in a few instances, have indicated an opinion that abandonment might be effectual in parting with or losing title to land itself. 1 Woodbury v. Short, 17 Vt. 387; Woolrych, Law of Waters, 28, 37; Ang. Wat. Cour. § 60; Institute, B. 2, tit. 1, § 21, and Vinnius, Comm. on the same; Fleta, B. 3, c. 2, § 6. The test given by the Institute and Fleta, of what would be a sufficient annexation to the land of another, to deprive the first land-owner of his property in the soil, is the suffering trees to take root and spring up in the soil in its new locality. But Vinnius does not consider this the only test, but to the claim of the original owner, "objici tamen ei posse, quod partem avulsam, cum posset, non vindicaverit, sed tamdiu passus sit eam haerere fundo alieno, ut tandem cum eo coaluerit et unum facta sit, ut ipse quodammodo eam alienasse videatur,” which is substantially the same as the above text. 2 Municipality v. Orleans Cotton Press, 18 La. 122. In Holmes v. Rail Road, &c., a case in the Ohio circuit of the United States Court, McLean, J., used language which, though not called for by the facts in the case, in the broad sense of the [*454] terms employed, *might lead one to suppose that title to land might be lost by mere abandonment, independent of any adverse possession continued till the claim of the original owner was barred by the statute of limitations: "It is a well-known principle of law that every owner of property, whether personal or real, may abandon it. In Corning v. Gould,' it is observed, that a man shall be held to intend what necessarily results from his own acts. Consequently, when property is abandoned under such circumstances as to leave no doubt of the fact, no one who has taken possession of it can be required to relinquish it. Whether there be an abandonment is a question of fact to be determined by the circumstances of the case. And when this is done, the right is extinguished."2 He cites several cases in connection with these propositions in his text, which, so far as they bear upon the subject, seem to fall short of sustaining the doctrine he maintains, so far as it applies to land itself, and only extend to equitable rights and easements or servitudes. A few of these will be noticed, as they serve to illustrate the doctrine of abandonment when applied to easements or servitudes and equitable interests in lands. Of the latter character, was Picket v. Dowdall, where one Crap had taken a warrant of land and had it surveyed, and thereby had acquired a right to demand a deed of it upon entering into certain agreements as to rents, &c. He neglected to take this step for several years, and the proprietors of the land sold and conveyed it to a stranger. The language of the judge upon the subject was, "I think the abandonment of Crap is fully proved. It is true that legal rights once vested must be legally divested, but equitable rights may be lost by dereliction." 3 2. In the case of Taylor v. Hampton, the right was that of one man to flow the land of another for the working a mill, where the owner of the mill had taken it down, opened, the gates and drawn down the water, and rebuilt the mill further up stream, leav[*455] ing the land between the two sites unflowed. *He after 1 Corning v. Gould, 16 Wend. 543. 2 Holmes v. Rail Road, 8 Am. Law Reg. 716, 724. & Picket v. Dowdall, 2 Wash. 107. wards, in about nine years, undertook to rebuild on the original site, and it was held he had abandoned the right by what he had done. The court speaks of the loss of such an easement “ by abandonment of that part of the estate which owes the servitude,' and as illustrations of what are such acts of abandonment as operate to discharge the servitude, without the necessity of any formal release, mentions a removal of the gates and a ceasing to flow a pond of water for a mill; the erection, by the owner, of a wall so as to obstruct the light and air from his own window; or his building a house across a private way which leads from the street across his own land and over the land of another, whereby its original use was destroyed. Any of these or similar acts may operate as an abandonment and total loss of the easement, or a suspension thereof, as the case may be, and a consequent loss for the time being, of the right to enjoy it.1 A mere non-user of a way for a certain length of time, is not an abandonment of a right to enjoy it. The case of Corning v. Gould, cited in a former part of this work, was that of a way for the use of two adjacent owners, and lying along the division line between them. One party having built upon his half of the way, which was followed by an obstructing of the other half by the other owner, the court held, that this was an abandonment of the easement, the act of the first having been assented to by the owner of the other portion of the way. In commenting upon the law of the case, the court say, "even a rent raised by deed may be extinguished in this way by mutual consent. The lessor enters and expels the tenant; if he does not choose to reënter, the rent is gone, though if he return, it is suspended only during the expulsion." A similar doctrine of abandonment of an easement without deed, by the act of an owner exchanging one way, for instance, for another, is sustained in the case of Pope v. Devereux. In the case of Kirk v. King, there was an abandonment of a beneficial use [*456] raised in favor of an unincorporated association, by their forbearing to exercise it for a period of years. The deed, in that case, was made to "the employees of a school," an association, but 8 1 Taylor v. Hampton, 4 M'Cord, 96. 2 Ward v. Ward, 14 Eng. L. & Eq. 414. 9 Corning v. Gould, 16 Wend. 531; ante, p. *59. Pope v. Devereux, 5 Gray, 409. See this case considered ante, p. *57. not an incorporated body. The school had been discontinued seven years when the owner entered and occupied the land. It was held, that the conveyance raised a use, but conveyed no legal title to the association for want of an ascertained grantee. It was held, also, that the non-user was an abandonment of this use, on the part of the association. "This was, certainly, enough," say the court, "to raise a legal presumption of abandonment." "It would, certainly, have constituted an abandonment of a location, under the land laws which this deed very much resembles." 1 The doctrine of losing title by abandonment, has been applied to cases of prima facie title by long continued adverse possession. Thus in Georgia, where seven years is the period of limitation, it has been held, that if, after a possession for that length of time, a tenant abandons the premises, it will be treated as an admission that he had not been holding adversely to the true owner, but in subordination to his title.2 And this is in accordance with the doctrine of the court of Massachusetts, who held, that where a party had occupied land up to a certain fence, for more than thirty years, it was competent, in an action involving the title to the premises, to show the acts and declarations of the tenant, made after thirty years, in order to show the motives and views of the tenant as to the holding during the thirty years. But it is not easy wholly to reconcile this with the opinion of the court in Maine, where it was held, that "an open, notorious, exclusive, adverse possession for twenty years, would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed. No doubt a disseisor may abandon the land, or surrender his possession by parol to the disseisee at any time before his disseisin has ripened into a title, and thus put an entire end to his claim. His declarations are admissible in evidence to show the character of his seisin, whether he holds adversely or in subordination to the legal title. But the title obtained by disseisin, so long continued as to take away the right of entry, and bar an action for the land by limitation, cannot be conveyed by a parol abandonment or relinquishment, it must be 1 Kirk v. King, 3 Penn. St. 441. 2 Vickery v. Benson, 26 Ga. 589. 8 Church v. Burghardt, 8 Pick. 327. |