Sivut kuvina

by the rising of an island in a river, or by the alluvion or dereliction of the sea; 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.* 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 must be whenever a several fishery is claimed,1t there it seems just (and so is the usual 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, yet ours gives it to the king." And as to lands gained from [262] the sea, either by alluvion, by the washing up of sand and earth, so as in time to make terra firma; or by dereliction, as when the sea shrinks back below the usual water-mark; 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. For de minimis


1 l. 2. c. 2.

k Inst. 2. 1. 22.

1 Salk. 637.


Inst. 2. 1. 18.

n Bract. 1. 2. c. 2. Callis of sewers.

o 2 Roll. Abr. 170. Dyer, 326.

9 Ninth edition inserts, "in the sea or."

9 Ninth edition reads, "waters."

9 Ninth edition reads, "usually is."

9 Ninth edition reads, "constant."

*Cited, 2 Binn. 484; 4 Am. Dec. 467; 2 N. H. 372; 9 Am. Dec. 90; 4 Rich. 82; 53 Am. Dec. 719; 51 Mich. 283; 3 Tex. App. 324; 30 Am. Rep. 143.

+ Cited, 5 Har. & J. 208.

- Quoted, 1 Gill & J. 264; 31 Cal. 120; 89 Am. Dec. 165.

? Cited, 2 Johns. 323; 3 Am. Dec. 431; 43 Md. 35; 9 Conn. 41; 21 Am. Dec. 710; 18 N. Y. 149; 42 Wis. 244; 40 Conn. 397; 17 Gratt. 468; 26 Vt. 72.

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 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, he shall have what the river has left in any other place, as a recompense for this sudden loss. 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," that whatever hath no other owner is vested by law in the king.‡

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

s See Vol. I. pag. 298.

9 Ninth edition inserts, "it is said that."

*Cited, 25 Ark. 121; 91 Am. Dec. 539; 4 Am. Rep. 24; 84 N. Y. 218; 38 Am. Rep. 506.

- Quoted, 23 Wall. 67. Cited, 9 Conn. 41; 21 Am. Dec. 710; 100 N. Y. 432; 24 Tex. 424.

# Cited, 79 Me. 374.


(48) Occupancy is the taking possession of those things which before belonged to nobody, page 258.

Title by occupancy, title by prescription, and title by limitation, are treated as distinct topics in all the books. But I see no reason why all three may not be considered as different applications of the same principle. That principle is, that quiet possession shall not only be protected by the state against violence, but that after the lapse of a certain time, this protection shall become absolute, and no inquiry be permitted with regard to its origin.

It is true that occupancy as a source of title in natural law assumes that the property has no individual owner, and that the occupant, therefore, acquires a title which is valid from the moment of taking possession; while prescription, on the other hand, assumes that there is a superior right in some one else, and only recognizes a title after the lapse of a certain time. But this distinction does not go to the essence of the right. In an established state it can hardly be certain of any piece of property that there are not outlying dormant titles, and even if there are not, the state itself must be regarded as the owner of all vacant land within its limits.

Consequently the question in all cases resolves itself into this: to what extent will the state protect the mere possession of land, not based on any derivative title, and on what terms will this possession become absolute and conclusive?

Now, if we say that the state will protect a peaceably acquired possession in all cases, until a superior title is shown, and that after a certain period of limitation it will refuse to allow any such superior title to be shown, we give a rule that applies equally to occupation, prescription, and limitation. All the other distinctions that can be stated between them refer rather to the

evidence of title and the effect of such evidence, than to the title itself.

In all these cases the title is original and not derivative. The fact that there is another and conflicting title is purely accidental, and has nothing to do with the reasons for which the title given by the state vests.

It is true that prescription at common law was supposed to rest on the fiction of a lost grant. But this was a mere fiction (see note 53, post), and may now be entirely dispensed with, and the true reason of the law recognized, as it is in the analogous case of the statute of limitations to debts.

66 Formerly it was thought that the statute of limitations was designed to raise a presumption of payment or adjustment from the lapse of time, but the better view is now the prevailing one, that it is a statute of repose, and intended to afford security against stale demands when the circumstances would be unfavorable to just examination and decision." (Per Graves, J., in Jenny v. Perkins, 17 Mich. 28, 33, 1868.)

"The gradual change of opinion here noticed has been attended by a corresponding one in the application of the statute, and in the administration of those principles of equity which have the same foundation. The policy of the statute as now considered so harmonizes with the kindred doctrine of the court of equity, that in many cases they seem to be nearly blended." Upon the general subject of title by prescription, limitation, or possession, see 3 Washburn, ch. 2, 22 3, 7; 2 Hilliard, ch. 75, 76; 3 Kent, pp. *441-443; Wharton on Conv. Trac. tit. 4, ch. 3; 2 Smith's Leading Cases, *466, Nepean v. Doe; Taylor v. Horde.

Under this head seems to be the proper place to speak of those interests in the public lands which are acquired by actual settlers, viz., pre-emption and homestead rights (not to be confounded with homestead rights under state law).

I do not see why these are not perfectly legitimate examples of the "taking possession of those things which formerly belonged to nobody." (2 Blackst. 258.) It is true that in most cases occupancy alone does not vest a complete title. It is necessary either that a certain price should be paid, or certain conditions of residence, etc., fulfilled before the settler's title becomes a fee-simple. But he has some rights recognized and protected by law, immediately on taking possession; and these rights cannot well be traced to any source but occupancy.

It is not inconsistent with this that such rights are recognized by the law, only when they arise by virtue of some express statute. This is only equivalent to saying that the government, which is the entire owner of all the public lands, will not recognize individual occupancy except in cases where the proper permission has been given. The statute does not create a right of occupancy: it only regulates it. But the rule that no preemption right exists, unless given by some special statutory enactment, is well settled. (Perrin v. Griffith, 13 Iowa, 151; Frisbie v. Whitney, 9 Wall. 187.)

A much more difficult and important question is as to the nature of the estate thus acquired, prior to the completion of the title. What is a claim, personal or real estate, a chattel interest or freehold? The decisions on this point are conflicting. In Iowa it was expressly decided that it is not an inheritable estate. Bowers v. Keesecker, 14 Iowa, 301, followed in Corbett v. Berryhill, 29 Iowa, 157, and overruling Davis v. O'Ferrall, 4 Greene, G. 358, so far as the same held that a widow was entitled to dower in such a claim, as real estate. The opinion in B. v. K., claims to be supported by Davenport v. Farrar, 1 Scam. 315; Harrington v. Sharp, 1 Greene, G. 431; Delauney v. Burnett, 4 Gilm. 454; Brown v. Throckmorten, 11 Ill. 530; Clark v. Schultz, 4 Mo. 235. Stewart v. Chadwick, 8 Iowa, 463, discusses the same question, and seems to decide the same way,

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