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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 t. When there is a residue left, the
to have descendible qualities, but not belonged to, or descended upon, the as an estate of inheritance.
heir at law. Lord Eldon said, “it is In Ripley v. Waterworth, (7 Ves. impossible this exception can be right 437), exceptions were taken to the Mas- in stating, that this estate descended ter's report, as to certain estates held upon the heir. I always understood on lease, to a man, his executors, ad- that this was a freehold; but the word ministrators, and assigns, for lives; descendible has been inaptly applied tu the first exception was, that the Mas- it; for though the party to take in ter ought to have certified that the succession is described as heir, he does testator had a real or descendible estate not take as such, but as a special occuand interest of freehold in the said pant named in the grant.” This comes leasehold estates; and that the same fully up to the rule stated in the text.
+ Mr. Christian, in his note upon and other incorporeal hereditaments, this passage, says, “Lord Keeper Har- does not enlarge but only preserve the court has declared, there is no differ- estate of the grantee;" (and as his auence, since the 29 Car. II. c. 3, be- thority for this statement, Mr. Chris. tween a grant of corporeal and incor- tian cites 3 P. Wms. 264]. poreal hereditaments pur auter vie ; for, [If the quotation were strictly accuby that statute, every estate pur auter rate, Lord Harcourt must be ranked vie is made devisable, and if not de- amongst those who have held that a vised, it shall be assets in the hands of grant pur autre vie, which savours of the the heir, if limited to the heir; if not realty, may be taken by the grantee's limited to the heir, it shall go to the real representative as an hereditament.
or administrators of the But, Lord Harcourt, in the passage grantee, and be assets in their havds; cited, never uses the word “hereditaand the statute, in the case of rents ment;" he is speaking, to be sure, of
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 (4); 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 (5).
[ * 261 ] *This, I say, was the only instance; for I think there can In cases where
(i) But see now the statute 5 Geo. tion of tithes or other incorporeal heIII. c. 17, which makes leases for one, reditaments, as good and effectual to two, or three lives by ecclesiastical all intents and purposes as leases of persons, or any eleemosynary corpora- corporeal possessions.
(4) The amendment of the law in byshire and Cornwall, by the laws of this respect had also another object; the Stannaries, an estate in mines it was intended for the relief of cre- might, and it is believed still may, ditors. (Oldham v. Pickering, 2 be gained by occupancy. (Geary v. Salk. 464; S. C. Carthew, 376). Barcroft, 1 Sid. 347).
(5) In the mining districts of Der
a rent, which is always a species of in- and that the same rule applied to an-
there is no heir be no other case devised, wherein there is not some owner that can take, the lands vest
of the land appointed by the law. In the case of a sole corin the king, or poration, as a parson of a church, when he dies or resigns, in the lord by escheat.
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 (6). 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 (7). As to lands cre- So also in some cases, where the laws of other nations give ated by the rising of islands in a right by occupancy, as in lands newly created, by the rising rivers, or by al- of an island in the sea or in a river, or by the alluvion or deluvion, &c.
reliction 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(1). 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
(k) 1. 2, c. 2.
(m) Salk. 637. See pag. 39.
(6) See ante, note (10) to chapter 7,
(7) See ante, chapter 15, with the notes thereto.
king (0). And as to lands gained from the sea, either by al
o luvion, 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) (8). For de minimis 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 (9), it is but reasonable he
(o) Bract. 1. 2, c. 2. Callis of sewers, 22. (P) 2 Roll. Abr. 170. Dyer, 326.
(8) In the modern case of The King ble in its progress, not imperceptible v. Lord Harborough, (3 Barn. & Cress. after a long lapse of time. 106; 4 Dowling & Ryl. 807), it was This decision was confirmed by the decided, that land not suddenly dere- House of Lords, on appeal. (See 5 lict, but formed by alluvion of the sea, Bingh. 170). imperceptible in its progress, belongs to So, in Scratton v. Brown, (5 Barn. the owner of the adjoining demesne & Cress. 505; S. C. 6 Dowl. & Ryl. lands, and not to the crown. It was 545), where a tenement, sea grounds, held, that the intimation thrown out by oyster layings, shores and fisheries, des Lord Hale, in his Treatise de jure scribed by certain boundaries, were maris, where he speaks of land gained granted by deed, it was held, that the by alluvion as belonging generally to right of soil in the sea-shore passed to the crown, "unless the alluvion be the grantees; and that, as the sea, so insensible that it cannot by any subsequently to the date of the deed, means be found that the sea was had imperceptibly and gradually enthere," was not to be understood as croached upon the land, that accretion meaning that the crown would be enti- also passed as an incident to that which tled, if, at the end of a century, or belonged to the grantee. even half a century, the accretion was (9) But, the soil, on which the sea perceptible by known limits or marks: ebbs and flows, that is, the soil be. and that the word " imperceptible,” tween the high water mark and low as connected, in the record then be- water mark, may be parcel of the fore the court, with the words “slow manor of a subject. (Sir Henry Conand gradual," was to be taken as ex
5 Rep. 107 b. and see pressive only of the manner of the ac- Johnson v Barrett, Aleyne, 11). cretion, and as meaning impercepti
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 gaining, are what make it either the king's or the subject's property. In the same manner, if a river (10), 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 (1), that whatever hath no other owner is vested by law in the king.
(9) Callis, 24, 28. (r) Ibid. 28.
(s) Inst. 2. 1. 20—24.
(10) Or an arm of the sea. (2 Roll's Ab. 169, pl. 6).