Sivut kuvina

that can take,

the lands vest

in the king, or in the lord by escheat.

there is no heir 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 (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 created by the ris

ing of islands in rivers, or by alluvion, &c.

So also in some cases, where the laws of other nations give 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 (). 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) l. 2, c. 2.

(1) Inst. 2. 1. 22.

p. 107.

(6) See ante, note (10) to chapter 7,

(m) Salk. 637. See pag. 39.

(n) Inst. 2. 1. 18.

(7) See ante, chapter 15, with the notes thereto.

king (o). 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) (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 (0) Bract. 1. 2, c. 2. Callis of sewers, 22. (p) 2 Roll. Abr. 170. Dyer, 326.

(8) In the modern case of The King v. Lord Harborough, (3 Barn. & Cress. 106; 4 Dowling & Ryl. 807), it was decided, that land not suddenly derelict, 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 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 impercepti

ble 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. & Cress. 505; S. C. 6 Dowl. & Ryl. 545), where a tenement, sea grounds, oyster layings, shores and fisheries, described by certain boundaries, were granted by deed, it was held, that the right of soil in the sea-shore passed to the grantees; and that, as the sea, subsequently to the date of the deed, had imperceptibly and gradually encroached upon the land, that accretion also passed as an incident to that which belonged to the grantee.

(9) But, the soil, on which the sea ebbs and flows, that is, the soil between the high water mark and low water mark, may be parcel of the manor of a subject. (Sir Henry Constable's case, 5 Rep. 107 b. and see Johnson v Barrett, Aleyne, 11).

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 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 (t), that whatever hath no other owner is vested by law in the king.

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

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

(10) Or an arm of the sea. (2 Roll's Ab. 169, pl. 6).




A THIRD method of acquiring real property by purchase is of title by prethat by prescription (1); as when a man can shew no other scription.

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(1) Bracton (in the 22nd chapter of his 2nd book,) says, 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: inte rumpi enim poterit multis modis, sine violentiâ adhibitá, 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 cre-
ated 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. Præ-
scriptio 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

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Distinction be

tween custom

and prescription.

title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries (a). At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew what sort of things may be prescribed for.

And, first, the distinction between custom and prescription (2) is this: that custom is properly a local usage, and not annexed to any person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal (3) usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (b). As for example, if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held (c) to be a lawful usage), this is strictly a custom, for it is applied to the place in general, and not to any parti[264] cular persons: but if the *tenant who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those

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of the time regulated by law. (Domat's
Civil Law, tit. 7, sect. 4 & 5. Turn-
bull's note to Heineccius, book 1, ch.
12). We do not make this difference;
prescription, with us, is the word ap-
plied both to the manner of acquiring
the property of things, and to that of
acquiring and losing all sorts of rights.

(2) Custom and prescription, though
confounded in common language, are,
strictly speaking, very distinct in their
nature; (Baker v. Bearman, W. Jones,
367); it is true, that immemorial usage
is essential to them both; but, pre-

(c) 1 Lev. 176.

scription is not co-existent with general custom, but derogatory from general custom; and its origin must have been founded on a grant, now evidenced by immemorial usage; for which reason, no claim by prescription can be maintained, but such as might have been the subject of a legal grant: (see the last note): but this rule does not always hold with respect to custom. (Weekly v. Wildman, 1 Lord Raym. 407. Bennett v. Read, 1 Anstr. 325).

(3) A body politic or corporate may prescribe. (Co. Litt. 113 b).

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