THIS, I fay, was the only instance; for I think there can be no other cafe devised, wherein there is not fome owner of the land appointed by the law. In the case of a sole corporation, as a parfon of a church, when he dies or resigns, though there is no actual owner of the land till a fucceffor be appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the fucceffor is appointed, his appointment shall have a retrospect and relation backwards, fo as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies inteftate, and no other owner of the lands is to be found in the common course of descents, there the law vefts an ownership in the king, or in the subordinate lord of the fee, by escheat. So alfo in fome cafes, where the laws of other nations give a right by occupancy, as in lands newly created, by the rifing. of an ifland in a river, or by the alluvion or dereliction of the fea; in thefe inftances the law of England affigns them an immediate owner. For Bracton tells us, that if an ifland arife in the middle of a river, it belongs in common to thofe who have lands on each fide thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest fhore: which is agreeable to, and probably copied from, the civil lawi. Yet this feems only to be reasonable, where the foil of the river is equally divided between the owners of the oppofite fhores: for if the whole foil is the freehold of any one man, as it must be whenever a feveral fishery is claimed *, there it seems juft (and fo is the ufual practice) that the eyotts or little islands, arising in any part of the river, fhall be the property of him who owneththe pifcary and the foil. However, in case a new island rise in the fea, though the civil law gives it to the first occupant le yet ours gives it to the king". And as to lands gained from ì l. 2. c. 2. k Salk, 637. 1 Inft. 2. 1. 18. m Bract. 1. 2. c. 2. Callis of fewers. 22. R 3: the Book II, the fea, 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 fhrinks back below the usual watermark; in thefe cafes the law is held to be, that if this gain be by little and little, by finall and imperceptible degrees, it fhall go to the owner of the land adjoining ". For de minimis non curat lex: and, befides, these owners being often lofers by the breaking in of the sea, or at charges to keep it out, this poffible gain is therefore a reciprocal confideration for such poffible charge or lofs. But, if the alluvion or dereliction be fudden and confiderable, in this case it belongs to the king; for, as the king is lord of the fea, and fo owner of the foil while it is covered with water, it is but reasonable he should have the foil, when the water has left it dry. 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 fubject's property. In the fame manner if a river, running between two lordships, by degrees gains upon the one, and thereby leaves the other dry; the owner who lofes his ground thus imperceptibly has no remedy: but if the course of the river be changed by a fudden and violent flood, or other hafty means, and thereby a man lofes his ground, he shall have what the river has left in any other place, as a recompenfe for this fudden lofs P. And this law of alluvions and derelictions, with regard to rivers, is nearly the fame in the imperial law; from whence indeed thofe our determinations feem to have been drawn and adopted: but we ourselves, as islanders, have applied them to marine increases; and have given our fovereign the prerogative he enjoys, as well upon the particular reafons before-mentioned, as upon this other general ground of prerogative, which was formerly remarked', that whatever hath no other owner is vefted by law in the king, THIRD method of acquiring real property by pur A of by pew chafe is that by prefcription; as when a man can fhew no other title to what he claims, than that he, and those under whom he claims, have immemorially ufed to enjoy it. Concerning customs, or immemorial ufages, in general, with the several requifites and rules to be obferved, in order to prove their existence and validity, we enquired at large in the preceding part of these commentaries *. At present therefore I fhall only, firft, diftinguish between custom, ftrictly taken, and prefeription; and then fhew, what fort of things may be prescribed for. AND, first, the diftinction between cuftom and prescription is this; that cuftom is properly a local ufage, and not annexed to any person; fuch as, a custom in the manor of Dale that lands fhall defcend to the youngest son: prescription is merely a perfonal ufage; as, that Sempronius, and his ances tors, or those whofe eftate he hath, have used time out of mind to have fuch an advantage or privilege. 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 clofe, at all times, for their recreation; (which is held to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular perfons: but if the с tenant, Book II tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the faid manor, havé used time out of mind to have common of pasture in such a close, this is properly called a prescrip tion; for this is a usage annexed to the person of the owner of this eftate. All prefcription must be either in a man and his ancestors, or in a man and those whofe eftate he hath d which laft is called prefcribing in a que eftate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predeceffors at any distance of time, though his or their enjoyment of it had been fufpended for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person fhall make any prescription by the feifin or poffeffion of his ancestor or predeceffor, unlefs fuch feifin or poffeffion hath been within threefcore years next before fuch prefcription made f. e SECONDLY, as to the feveral fpecies of things which may, or may not, be prefcribed for: we may in the first place, obferve, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, &c; but that no prescription can give a title to lands, and other corporeal fubftances, of which more certain evidence may be had *. For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the caftle of Arundel for this is clearly another fort of title; a title by corporal feifin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal feifin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial ufage. 2. A prefcription muft always be d 4 Rep. 32. e Co. Litt. 113. f This title, of prefcription, was well known in the Roman law by the name of ufucapio; (Ff. 41. 3. 3.) fo called, 265 laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecillity of their estates. For, as prefcription is ufage beyond time of memory, it is abfurd that they should pretend to prescribe, whofe eftates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's eftate, and the tenant for life under cover of the tenant in fee-fimple. As, if tenant for life of a manor would prefcribe for a right of common as appurtenant to the fame, he must prescribe under cover of the tenant in fee-fimple; and must plead, that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the faid manor, and that John Stiles demised the said manor, with it's appurtenances, to him the faid tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in fupply of the lofs of a grant, and therefore every prescription presupposes a grant to have existed. Thus a lord of a manor cannot prescribe to raise a tax or toll upon ftrangers; for, as fuch claim could never have been good by any grant, it fhall not be good by prescription 1. 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; fuch as, for inftance, the royal franchises of deodands, felons' goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquifition of a jury, and fo made a matter of record, the forfeiture itfelf cannot be claimed by any inferior title. But the franchises... of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record *. 5. Among things incorporeal, which may be claimed by prescription, a diftinction must be made with regard to the manner of prescribing; that is, whether a man fhall prescribe in a que eftate, or in himself and his ancestors. For, if a man prefcribes in a que eftate, (that is, in himself and those whose estate he holds) nothing |