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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, and other incorporeal hereditaments, administrators, and assigns, for lives; does not enlarge but only preserve the the first exception was, that the Mas- estate of the grantee ;' [and as his ter ought to have certified that the authority for this statement, Mr. testator had a real or descendible Christian cites 3 P. Wms. 264.] estate and interest of freehold in the [If the quotation were strictly acsaid leasehold estates; and that the curate, Lord Harcourt must be ranked same belonged to, or descended upon, amongst those who have held that a the heir at law. Lord Eldon said, “it grant pur autre vie, which savours of is impossible this exception can be the realty, may be taken by the right in stating, that this estate de- grantee's real representative as an scended upon the heir. I always un- hereditament. But, Lord Harcourt, derstood that this was a freehold ; but in the passage cited, never uses the the word descendible has been inaptly word “hereditament;' he is speakapplied to it; for though the party to ing, to be sure, of a rent, which is altake in succession is described as heir ways a species of incorporeal property, he does not take as such, but as a and may be so limited as to be an hespecial occupant named in the grant.” reditament, but Lord Harcourt does This comes fully up to the rule stated not say that a rent granted pur autre in the text.

vie, is an hereditament. His doctrine, (5) Mr. Christian, in his note upon therefore, is not at all opposed to that this passage, says, “ Lord Keeper stated at the close of the last note : Harcourt has declared, there is no though it certainly goes to qualify our difference, since the 29 Car. II. c. 3, author's text, which is not penned between a grant of corporeal and in- with Blackstone's usual precision. corporeal hereditaments pur auter vie; Even before the statutes, a grant of for, by that statute, every estate pur incorporeal property pur autre vie was auter vie is made devisable, and if not not necessarily determined by the devised, it shall be assets in the hands death of the grantee. Littleton, in of the heir, if limited to the heir; if his 379th section, and Lord Coke in not limited to the heir, it shall go to his commentary thereon, inform us, the executors or administrators of the that before the statutes, if heirs were grantee, and be assets in their hands; named in the grant of a rent pur autre and the statute, in the case of rents vie, they would take ; and that the

there is no heir

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).

* 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 cor- that can take, poration, as a parson of a church, when he dies or resigns, in the king or 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

v 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

vest

in the lord by escheat.

ated by the ris

.

(i) But see now the statute 5 Geo. ration of tithes or other incorporeal III. c. 17, which makes leases for one, hereditaments, as good and effectual two, or three lives by ecclesiastical to all intents and purposes as leases of persons, or any eleemosynary corpo corporeal possessions.

same rule applied to annuities, or any case, Dyer, 186 b, in margin.)—Ed.]
other things, lying in grant, (and see (6) The amendment of the law in
the case from Godbolt, cited in the this respect had also another object;
last note.) Nor is it clear, when heirs it was intended for the relief of cre.
were not mentioned, that even before ditors. (Oldham v. Pickering, 2 Salk.
the statutes, executors and adminis- 464 ; S. C. Carthew, 376.)
trators, if named in the grant, might (7) In the mining districts of Der-
not take. There is authority for hold. byshire and Cornwall, by the laws of
ing that they might have done so. (See the Stannaries, an estate in mines
Westfaling v. Westfaling, 3 Atk. 466.) might, and it is believed still may,
And, at all events, the grantee of an be gained by occupancy. (Geary v.
estate pur autre vie, to himself and his Barcroft, 1 Sid. 347.)
assigns, might, before the statutes, by (8) See ante, the note to p. 107.
assigning the estate, have prevented (9) See ante, chapter 15, pp. 241-
its determination by his death. (Sal. 257, with the notes thereto.
ter v. Boteler, Moor, 664 ; Crawley's

ing of islands in a right by occupancy, as in lands newly created, by the rising

, luvion, &c.

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(I). 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.

(0) Bract. 1. 2, (1) Inst. 2. 1. 22.

Sewers, 22. (m) Salk. 637 ; see pag. 39.

(P) 2 Roll. Abr. 170 ; Dyer, 326. (n) Inst. 2. 1. 18.

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2;

Callis of

It was

(10) In the modern case of The King meaning that the crown would be env. Lord Harborough, (3 Barn. & Cress. titled, if, at the end of a century, or 106 ; 4 Dowl. & Ryl. 807,) it was even half a century, the accretion was decided, that land not suddenly dere- perceptible by known limits or marks: lict, but formed by alluvion of the sea, and that the word “ imperceptible," imperceptible in its progress, belongs as connected, in the record then beto the owner of the adjoining demesne fore the court, with the words “slow lands, and not to the crown.

and gradual," was to be taken as exheld, that the intimation thrown out pressive only of the manner of the acby Lord Hale, in his Treatise de jure cretion, and as meaning imperceptimaris, where he speaks of land gained ble in its progress, not imperceptible by alluvion as belonging generally to after a long lapse of time. the crown,

unless the alluvion be This decision was confirmed by the 80 insensible that it cannot by any House of Lords, on appeal. (See 5 means be found that the sea Bingh. 170.) there," was not to be understood as So, in Scratton v. Brown, (5 Barn.

was

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 (9). 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),

a 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.

(2) Callis, 24, 28, (r) Ibid. 28.

(s) Inst. 2. 1. 20.-24.
(t) See Vol. I. pag. 298,

& Cress. 505 ; S. C. 6 Dowl. & Ryl. belonged to the grantee, 545,) where a tenement, sea grounds, (11) But, the soil, on which the sea oyster layings, shores and fisheries, ebbs and flows, that is, the soil bedescribed by certain boundaries, were tween the high water mark and low granted by deed, it was held, that the water mark, may be parcel of the right of soil in the sea-shore passed to manor of a subject. (Sir Henry Conthe grantees; and that, as the sea, stable's case, 5 Rep. 107 b; and see subsequently to the date of the deed, Johnson v. Barrett, Aleyne, 11.) had imperceptibly and gradually en- (12) Or an arm of the sea. (2 Rolle's croached upon the land, that accretion Ab. 169, pl. 6.) also passed as an incident to that which

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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 scription.

that by prescription (1); as when a man can shew no other

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(1) Bracton (in the 22nd chapter of the memory of man runneth not to the his 2nd book,) says, rerum corpora. contrary, the law presumes a grant lium dominia transferentur, sine titulo and a lawful beginning, and allows aut traditione, per usucaptionem, scili- such usage for a good title; but still, cet, per longam,continuam, et pacificam it is but in supply of the loss of a possessionem, ex diuturno tempore. grant: and therefore, for such things Continuam dico, ita quod non sit in- as can have no lawful beginning, nor terrupta : interrumpi enim poterit be created at this day by any manner multis modis, sine violentiâ adhibitá, of grant, or reservation, or deed that et per talem interruptionem, nunquam can be supposed, no prescription is acquiret possidens, ex tempore, liberum good. (See the next note.) tenementum. Pacificam dico, quia si The Roman law made a difference contentiosa fuerit, idem erit quod prius, between præscriptio, in its general and si contentio fuerit justa, et diligenter extended sense, and that kind of it prosecuta.

Lord Coke translates, which they distinguished by the name and adopts this account of the quali- of usucapio. By usucapio, they meant ties and incidents of prescription, in the manner of acquiring the property his commentary upon Littleton. (1 of things, by the effect of time. PreInstit. 113.)

scriptio had also the same meaning, In the case of Potter v. Sir Henry but it signified, moreover, the manner North, (1 Ventr. 386,) it was said, a of acquiring and losing all sorts of prescription that goes to claim a real rights and actions, by the same effect interest in solo alieno, is a title ; and of the time regulated by law. (Domat's as a title must be strictly pleaded ; it Civil Law, tit. 7, sect. 4 & 5; Turnis not like a prescription by way of bull's note to Heineccius, book 1, ch. discharge, or for an easement. Nothing 12.) We do not make this difference; can be prescribed for, that can at prescription, with us, is the word apthis day be raised by grant: for, the plied both to the manner of acquiring law allows prescriptions, only to sup- the property of things, and to that of ply the loss, or supposed loss, of a acquiring and losing all sorts of rights. grant. Upon usage from time to which The statute of 2 & 3 Gul. IV. c. 71,

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