CHAPTER V.

OCCUPANCY.

2 BL. COM., 258-260. Occupancy is the taking possession of those things which before belonged to nobody. This, as we have seen, is the true ground and foundation of all property, or of holding those things in severalty, which by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested that he who could first declare his intention of appropriating anything to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome, quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to speak), hath been confined by the laws of England within a very narrow compass: and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose 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.

This seems to have been recurring to first principles, and caliing 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 was supposed so to do;

for he had parted with all his interests, 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 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. 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 hæreditas jacens, during the residue of the estate granted though some have thought him so called with no very great propriety, 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) 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 hands for payment of debts: the other, that of 14 Geo. II., c. 10, which enacts 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 (because, with respect to them, there could be no actual entry made, or corporal 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. 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.

N. Y. REAL PROP. LAW, § 24. An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee; after his death it shall be deemed a chattel real.

CHAPTER VI.

CUSTOM AND PRESCRIPTION.

BRACTON, 220. Servitudes can be made to appertain to any land by voluntary grant or reservation on the part of the owners. They may also appertain to a tenement without a grant by long and peaceable user uninterrupted by any hindrance interposed, and permitted to continue by parties who are on the spot, all which amounts to assent. Hence it follows that although a servitude may not be reserved or granted in express words, by the owners of the soil, nevertheless if there has been any user extending over any considerable time, exercised in peace, without any interruption, and not by violence or stealth, or by virtue of a request, which is the same thing as by favor, the person enjoying the right cannot be ousted of it, at all events without the judgment of a court; but if the servitude be enjoyed by violence, the disseisor will never acquire the right by reason of the length of time for which it has been enjoyed, although it may be that through the negligence of the person ousted the right may be acquired by long and peaceful and uninterrupted possession, under the eyes of the parties; though it is otherwise in the absence of the parties; and a seisin so obtained can be interrupted in many different ways. And if the seisin be clandestinethat is to say, in the absence of the owners, or without their knowledge, and if they would have been likely to forbid it if they had known-it ought not to be of any avail, although the bailiffs of the land may have assented to or winked at it. Moreover, if it was due to a mere act of grace and favor

which may be revoked in season and out of season, no right is acquired by lapse of time; no more than in the case last mentioned.

LIT., § 170. And note, that no custome is to bee allowed, but such custome, as hath bin used by title of prescription, that is to say, from time out of minde. But divers opinions have beene of time out of mind, &c., and of title of prescription, which is all one in the law. For some have said, that time out of mind should bee said from time of limitation in a writ of right; that is to say, from the time of King Richard, the first after the Conquest, as is given by the statute of Westminster the first, for that a writ of right is the most high writ in his nature, that may be. .. And others have said that well and truth it is, that seisin and continuance after the limitation, &c., is a title of prescription, as is aforesaid, and by the cause aforesaid. But they have sayd, that there is also another title of prescription, that was at the common law before any estatute of limitation of writs, &c., and that it was, where a custome, or usage, or other thing, hath beene used, for time whereof mind of man runneth not to the contrary. And they have said, that this is proved by the pleading, where a man will plead a title of prescription of custome. Hee shall say, that such custome hath beene used from time whereof the memory of men runneth not to the contrary, that is as much to say, when such a matter is pleaded, that no man then alive hath heard any proofe of the contrary, nor hath no knowledge to the contrary; and insomuch that such title of prescription was at the common law, and not put out by an estatute, ergo, it abideth as it was at the common law; and the rather, insomuch that the said limitation of a writ of right is of so long time passed. Ideo quacre de hoc.

2 BL. COм., 263-266. 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