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cause, 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 (5). When there is a residue left, the

held on lease, to a man, his executors, administrators, and assigns, for lives; the first exception was, that the Master ought to have certified that the testator had a real or descendible estate and interest of freehold in the said leasehold estates; and that the same belonged to, or descended upon, the heir at law. Lord Eldon said, "it is impossible this exception can be right in stating, that this estate descended upon the heir. I always understood that this was a freehold ; but the word descendible has been inaptly applied to it; for though the party to take in succession is described as heir, he does not take as such, but as a special occupant named in the grant." This comes fully up to the rule stated in the text.

(5) Mr. Christian, in his note upon this passage, says, "Lord Keeper Harcourt has declared, there is no difference, since the 29 Car. II. c. 3, between a grant of corporeal and incorporeal hereditaments pur auter vie; for, by that statute, every estate pur auter vie is made devisable, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute, in the case of rents

and other incorporeal hereditaments, does not enlarge but only preserve the estate of the grantee;" [and as his authority for this statement, Mr. Christian cites 3 P. Wms. 264.]

[If the quotation were strictly accurate, Lord Harcourt must be ranked amongst those who have held that a grant pur autre vie, which savours of the realty, may be taken by the grantee's real representative as an hereditament. But, Lord Harcourt, in the passage cited, never uses the word "hereditament;" he is speaking, to be sure, of a rent, which is always a species of incorporeal property, and may be so limited as to be an hereditament, but Lord Harcourt does not say that a rent granted pur autre vie, is an hereditament. His doctrine, therefore, is not at all opposed to that stated at the close of the last note: though it certainly goes to qualify our author's text, which is not penned with Blackstone's usual precision. Even before the statutes, a grant of incorporeal property pur autre vie was not necessarily determined by the death of the grantee. Littleton, in his 379th section, and Lord Coke in his commentary thereon, inform us, that before the statutes, if heirs were named in the grant of a rent pur autre vie, they would take; and that 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 (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 (6); 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 (7).

there is no heir

that can take, in the king, or

the lands vest

in the lord by escheat.

*This, I say, was the only instance; for I think there can [ *261 ] be no other case devised, wherein there is not some owner In cases where of the land appointed by 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 (8). 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 (9). So also in some cases, where the laws of other nations give As to lands cre

(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 eleemosynary corpo

ration of tithes or other incorporeal
hereditaments, as good and effectual
to all intents and purposes as leases of
corporeal possessions.

ated by the ris

same rule applied to annuities, or any other things, lying in grant, (and see the case from Godbolt, cited in the last note.) Nor is it clear, when heirs were not mentioned, that even before the statutes, executors and administrators, if named in the grant, might not take. There is authority for holding that they might have done so. (See Westfaling v. Westfaling, 3 Atk. 466.) And, at all events, the grantee of an estate pur autre vie, to himself and his assigns, might, before the statutes, by assigning the estate, have prevented its determination by his death. (Sal. ter v. Boteler, Moor, 664; Crawley's

case, Dyer, 186 b, in margin.)—ED.]

(6) The amendment of the law in this respect had also another object; it was intended for the relief of creditors. (Oldham v. Pickering, 2 Salk. 464; S. C. Carthew, 376.)

(7) In the mining districts of Der-
byshire 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.)

(8) See ante, the note to p. 107.
(9) See ante, chapter 15, pp. 241—
257, with the notes thereto.

rivers, or by alluvion, &c.

ing of islands in 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 (k), 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 (7). 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 (m), 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 (n), yet ours gives it to the king (0). And as to lands gained from 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 (p) (10). For de minimis non curat lex:

(k) L. 2, c. 2.

(1) Inst. 2. 1. 22.

(m) Salk. 637; see pag. 39.
(n) Inst. 2. 1. 18.

(10) In the modern case of The King
v. Lord Harborough, (3 Barn. & Cress.
106; 4 Dowl. & Ryl. 807,) it was
decided, that land not suddenly dere-
lict, but formed by alluvion of the sea,
imperceptible in its progress, belongs
to the owner of the adjoining demesne
lands, and not to the crown. It was
held, that the intimation thrown out
by Lord Hale, in his Treatise de jure
maris, where he speaks of land gained
by alluvion as belonging generally to
the crown,
"unless the alluvion be
so insensible that it cannot by any
means be found that the sea was
there," was not to be understood as

(0) Bract. 1. 2, c. 2; Callis of Sewers, 22.

(p) 2 Roll. Abr. 170; Dyer, 326.

meaning that the crown would be entitled, if, at the end of a century, or even half a century, the accretion was perceptible by known limits or marks: and that the word "imperceptible," as connected, in the record then before the court, with the words "slow and gradual," was to be taken as expressive only of the manner of the accretion, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time.

This decision was confirmed by the House of Lords, on appeal. (See 5 Bingh. 170.)

So, in Scratton v. Brown, (5 Barn.

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 (11), it is but reasonable he should have the soil, when the water has left it dry (q). So that the quantity of ground gained, and the time during which it is gained, are what make it either the king's or the subject's property. In the same manner, if a river (12), 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, it is said that he shall have what the river has left in any other place, as a recompence for this sudden loss (r). And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law (s); 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 (t), that whatever hath no other owner is vested by law in the king.

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263

CHAPTER XVII.

OF TITLE BY PRESCRIPTION.

Of title by pre- A THIRD method of acquiring real property by purchase is that by prescription (1); as when a man can shew no other

scription.

(1) Bracton (in the 22nd chapter of his 2nd book,) says, 66 rerum corporalium dominia transferentur, sine titulo aut traditione, per usucaptionem, scilicet, per longam, continuam, et pacificam possessionem, ex diuturno tempore. Continuam dico, ita quod non sit interrupta: interrumpi enim poterit multis modis, sine violentiá adhibita, et per talem interruptionem, nunquam acquiret possidens, ex tempore, liberum tenementum. Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa, et diligenter prosecuta." Lord Coke translates, and adopts this account of the qualities and incidents of prescription, in his commentary upon Littleton. (1 Instit. 113.)

In the case of Potter v. Sir Henry North, (1 Ventr. 386,) it was said, a prescription that goes to claim a real interest in solo alieno, is a title; and as a title must be strictly pleaded; it is not like a prescription by way of discharge, or for an easement. Nothing can be prescribed for, that cannot at this day be raised by grant: for, the law allows prescriptions, only to supply the loss, or supposed loss, of a grant. Upon usage from time to which

the memory of man runneth not to the contrary, the law presumes a grant and a lawful beginning, and allows such usage for a good title; but still, it is but in supply of the loss of a grant and therefore, for such things as can have no lawful beginning, nor be created at this day by any manner of grant, or reservation, or deed that can be supposed, no prescription is good. (See the next note.)

The Roman law made a difference between præscriptio, in its general and extended sense, and that kind of it which they distinguished by the name of usucapio. By usucapio, they meant the manner of acquiring the property of things, by the effect of time. Præscriptio had also the same meaning, but it signified, moreover, the manner of acquiring and losing all sorts of rights and actions, by the same effect of the time regulated by law. (Domat's Civil Law, tit. 7, sect. 4 & 5; Turnbull's note to Heineccius, book 1, ch. 12.) We do not make this difference; prescription, with us, is the word applied both to the manner of acquiring the property of things, and to that of acquiring and losing all sorts of rights. The statute of 2 & 3 Gul. IV. c. 71,

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