8

8

almost to nothing by two statutes: the one, 29 Car. II. c. 3. which enacts (according to the antient 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 [260] go to the executors 5 or administrators 5 and be assets in their hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that 5 the surplus of such estate pur auter vie, after payment of debts, shall 5 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 [see note 49, page 411] 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 likes (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 f Bract. ibid. Flet. ibid.

g Co. Litt. 41. Vaugh. 201.

5 Previously, "it shall vest not only in the executors, but, in case the tenant dies intestate, in the administrators also; and."

8 Previously, "The doctrine of common occupancy may however be usefully remembered on the following account, among others; that as by the common law no occupancy could be."

8 Previously, "the."

8 Prior editions inserted here, "to."

*Cited, 1 Brev. 526.

4

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.

[261] This, I say, was the only instance; for I think there can be no other case devised, wherein there is not some owner 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. 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.

So also in some cases, where the laws of other nations give a right by occupancy, as in lands newly created,

h See the statute 5 Geo. III. c. 17, which makes leases for one, two, or three lives by ecclesiastical persons or any eleemosynary corporation of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions. 4 Previously, "etc."

4 Previously, "the executors."

by the rising of an island in a river, or by the alluvion or derliction 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,1† 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

m

i l. 2. c. 2.

k Inst. 2. 1. 22.

1 Salk. 637.

m

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.‡

p Callis. 24. 28.

q Ibid. 28.

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.

NOTES OF THE AMERICAN EDITOR TO CHAPTER XVI.

(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