TITLE There may be a special occupant of an equitable estate PART III. pour autre vie (a). 1437. 66 common of such existed. on the By the common law, where an estate in corporeal here- Where ditaments of freehold tenure was granted to a person occupancy (without mentioning his heirs, executors, or administra- estates tors) for the life of another, if the grantee died during the lifetime of the cestui que vie, he who first entered might lawfully retain possession, so long as cestui que vie lived, by right of common occupancy (b). But, if an estate pour autre vie, in corporeal hereditaments of freehold tenure, were granted to a person, without naming his heirs, executors, or administrators, and the grantee assigned to a person and his heirs, the title by common occupancy was precluded (c). And by the Statute of Frauds, 29 Car. 2, c. 3, Enactments s. 12, it was enacted, that any estate pour autre vie shall subject. be devisable by a will in writing signed by the party so devising the same, or by some other person in his presence and by his express directions, attested, and subscribed in the presence of the devisor by three or more witnesses. And if no such devise thereof be made, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple and in case there shall be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands." By stat. 14 Geo. 2, c. 20, s. 9, estates pour autre vie of which there was no special occupant, and which had not been devised according to the Statute of Frauds, were directed to "be applied and distributed in the same manner as the personal estate of the testator or intestate" (d). These (a) Reynolds v. Wright, 29 Beav. 590. (b) 2 Bl. Com. 258, 260; Co. Litt. b; Burton, § 730, 733. (c) Burton, § 731. (d) Burton, § 1417; Co. Litt. 41 b (5). TITLE III. PART III enactments are repealed by the stat. 1 Vict. c. 26, s. 2 ; but by s. 3, it is enacted, that the power of testamentary disposition thereby given shall extend "to estates pour autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary freehold, tenant right, customary, or copy hold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament." And by s. 6, it is enacted, "that if no disposition by will shall be made of any estate pour autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee simple; and in case there shall be no special occupant of any estate pour autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant and if the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate" (a). But by s. 34, it is enacted, “that this Act shall not extend to any estate pour autre vie of any person who shall die before the 1st day of January, 1838." 1438. Estate pour autre vie in There could be no common occupancy of copyholds; copy holds; because the freehold is in the lord; and therefore by the death of the grantee pour autre vie, though in the lifetime and in lands of the cestui que vie, the estate ceased (b). And there could be no occupancy of an estate held in trust, because held in trust; (a) See Reynolds v. Wright, 2 Beav. 100. (b) Cruise T. 10, c. 2, § 24, 25; 2 Jarm. & Byth. by Sweet, 201; Co. Litt. 41 b, n. 3. TITLE the trustee is in possession (a). And by the common law PART III. there could be no common occupancy of incorporeal and in hereditaments, because, with respect to them, there could incorporeal be no actual entry made or corporeal seisin had (b). 1439. heredita ments. occupancy There is now no case in which common occupancy can Common arise. When a tenant dies intestate and no other owner is has ceased. to be found in the common course of descent, there the law vests the ownership in the Crown or in the subordinate lord of the fee by escheat (c). And so in the case of lands newly created, the law assigns them an immediate owner (d). 1440. Stat. 45 & 46 38, The Settled Vict. c. 38 8. 58. Land Act, [With reference to tenants pour autre vie, it should be remembered, that by virtue of stat. 45 & 46 Vict. c. s. 58 (Appendix), a tenant pour autre vie of settled land, 1882. when in possession, has all the powers of a tenant for life tenant pour under that Act.] 1440a. (a) See Penny v. Allen, 7 D. M. & G. 422-4. (b) See 2 Bl. Com. 260; 1 Sugd. Pow. 235 n; Co. Litt. 41 b & n. 3, 388 a; 3 Cruise T. 28, c. 2, § (c) 2 Bl. Com. 261. Powers of autre vie. TITLE IV. TITLE IV. OF ALLUVION AND DERELICTION. Ir an island arises in the middle of a river, and the soil of the river belongs equally to the owners of the opposite shores, the island belongs in common to them. But if it is nearer to one bank than to the other, it belongs exclusively to the proprietor of the nearest shore. And if the whole soil of the river is the freehold of any one person, as it must be whenever a several piscary is claimed, the evots or little islands that arise in any part of the river belong to him (a). 1441. As to lands gained from the sea, either by alluvion, by the washing up of sand and earth, or by dereliction, as when the sea shrinks back below the usual watermark, in these cases, if the alluvion or dereliction is sudden and considerable, it belongs to the Crown; but if otherwise, it belongs to the owner of the land adjoining; for de minimis non curat lex ; and besides, these owners are often losers by the breaking in of the sea, or at charges to keep it out (b). 1442. If a river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry, the owner who thus imperceptibly loses his ground has no remedy. But if the course of the river is changed by a sudden and violent flood, or other hasty means, and thereby a man loses his ground, he shall have what the river has left in any other place, as a recompense for this sudden loss (c). 1443. TITLE V. OF PRESCRIPTION. Definition. PRESCRIPTION is a title to an incorporeal hereditament by PART III. mere usage, on the part of a particular person and his ancestors, or those whose estate he has, or on the part of a body politic and its predecessors (a). It is rather an evidence of a former acquisition, than an acquisition de novo (b). 1444. between custom and The distinction between custom and prescription is this: Distinction custom is properly a usage annexed to localities; pre- prescrip scription is a usage annexed to a particular person, and tion. those under whom he claims, or to a body politic and its predecessors (c). 1445. prescription must be reasonable. A custom or prescription must be certain and reason- A custom or able (d). And hence a custom or prescription that mining certain and rights may be exercised so as to injure the foundations of dwelling-houses, without compensation, is unreasonable and bad (e). And so is a claim by custom or prescription to carry away the soil of another, without limit, to the destruction of his inheritance, by working stone quarries (ƒ). But a custom for the inhabitants of a parish to enter upon certain land (whether it is a village green or a common, or a private close) and erect a maypole thereon, and dance round and about it, and otherwise enjoy on the land any lawful and innocent recreation at any times in the year, is good (g). 1446. (a) 2 Bl. Com. 263, 264; Co. Litt. 113 b; 3 Cruise T. 31, c. 1, § 5, 6, 8; Constable v. Nicholson, 14 C. B. (N. S.) 230. (b) 2 Bl. Com. 266. (c) Co. Litt. 113 b; 2 Bl. Com. 263; 3 Cruise T. 31, c, 1, § 7. (d) 3 Cruise T. 31, c. 1, § 28. (e) Hilton v. Earl Granville, 4 Beav. 130; Cr. & Phil. 283; 5 Ad. & E. (N. S.) 701. (f) Att.-Gen. v. Mathias, 4 K. & J. 579. (g) Hall v. Nottingham, L. R. 1 Ex. D. 1. |