eliction of the waters; 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 usually is whenever a several fishery is claimed,m there it seems just (and so is the constant practice), that the eyots, 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 the [262] 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 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, it is but reasonable he should have the soil 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 subject's property. In the same manner, if a riv * L. 2, c. 2. Inst., 2, 1, 22. m Salk., 637. See p. 39. (5) Bracton, in the passage cited in support of this position, states our law to be the same as the civil law on this point. (See Hale, de Jure Maris, 17.) (6) See these subjects of alluvion, avulsion, and reliction, and islands arising in the sea and rivers, fully considered, and the cases collected, in the able treatise of Mr. Schultes on Aquatic Rights, who, in pages 115 to 138, draws this conclusion, "that all islands, relicted land, and other increase arising in the sea and in navigable streams, except under local circumstances before alluded to, belong to the crown; and that all islands, relicted land, and the soil of inland unnavigable rivers and streams under er, 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 recompense for this sudden loss. And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law; 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.* M., 234; 3 B. & Ad., 862.) From the case of the King v. Lord Yarborough (3 B. & Cr., 91) (though the decision turned rather upon the pleadings and evidence than the general law of alluvion and reliction), and the cases cited (Id., 102), it may be collected that if the salt water leave a great quantity of land on the shore, the king shall have the land by his prerogative, and not the owner of the adjoining soil; but not so when dry land is formed gradually, and by insensible, imperceptible degrees, by alluvions or relictions, however large it may ultimately become. (2 Bligh, 187; 5 Bingh., 163; 4 B. & Cr., 505.) As to unnavigable rivers, there is a case cited in Callis, 51, from the 22 Lib. Ass., pl. 93, which fully establishes the law. "The case was, that a river of water did run between two lordships, and the soil of one side, together with the river of water, did wholly belong to one of the said lordships, and the river by little and little did gather upon the soil of the oth er lord, but so slowly that, if one had fixed his eye a whole day thereon together, it could not be perceived. By this petty and imperceptible increase, the increasement was got to the owner of the river; but if the river, by a sudden and unusual flood, had gained hastily a great parcel of the other lord's ground, he should not thereby have lost the same; and so of petty and unperceivable increasements from the sea, the king gains no property, for 'de minimis non curat lex.'" N.B.-In the above text, it is supposed "he shall have what the river has left in any other place as a recompense for his sudden loss," but the case in 22 Ass., pl. 93, says that “neither party shall lose his land." (Schultes, 136, 137.)-[CHITTY.] (7) And the same rule holds good as between the crown and a subject in the case of a gradual encroachment of the sea. (5 Mee. & W., 327.) * In New York, the state claims to be the owner of lands under the waters of navigable lakes, as well as rivers.—(1 R. S., 208, § 67.) Upon the subject of the rights of riparian owners as held in the several states, see 3 Kent's Comm., 427-431. 302 CHAPTER XVII. OF TITLE BY PRESCRIPTION. A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show no other 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. At present, therefore, I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for. between And, first, the distinction between custom and prescription Distinction is this: that custom is properly a local usage, and not annexed custom and to any person; such as a custom in the manor of Dale that prescription. lands shall descend to the youngest son: prescription is mere ly a personal 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. 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 to be a lawful usage), this is strictly a custom, for it is applied to the place in general, and not to any particular persons; but if the tenant who is seized of the man- [264] or of Dale in fee alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors,' or in a man and those whose estate he hath ;d which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspendede for an indefinite series of years. But, by the statute of limitations, 32 Hen. VIII., c. 2, a See vol. i., p. 75, &c. b Co. Litt., 113. [5 Nev. & M., 308. 1 Nev. & P., 172.] (1) Or in a corporation and its predecessors; see 1 Saund., 342. c 1 Lev., 176. e Co. Litt., 113. (2) See 6 Mee. & W., 542; 6 Jur., 837; 6 Scott, 167; 11 Ad. & E., 819. What may be prescribed for. it is enacted, that no person shall make any prescription by the seizin or possession of his ancestor or predecessor, unless such seizin or possession hath been within threescore years next before such prescription made."f Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, 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 substances, of which more certain evidence may be had. For a man shall not be said to prescribe that he and his ancestors. have immemorially used to hold the Castle of Arundel; for this is clearly another sort of title; a title by corporeal seizin 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 corporeal seizin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. [265] 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, can not prescribe by reason of the imbecility of their estates.h For, as a prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And, therefore, the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescription may be said usu rem capere.1 This title, of prescription, was well known in the Roman law by the name of usucapio (Ff., 41, 3, 3); so called because a man that gains a title by pre Dr. & St., Dial. 1, c. 8. Finch, 132. h 4 Rep., 31, 32. 325. See 5 Moo. & P., 712; 2 C., M & R., 34; Com. Dig., Præscription, (E., 2); 6 Jurist, 837.) The Statute of Limitations, stated infra, is applicable to these rights. (7 Ad. & E., 701.) (3) See a statement of the present law of limitation, infra, p. 266, n. The inference from the evidence of en- record not. scribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him, the said tenant, for life. 3. A prescription can not be for a thing which can not be raised by grant. For the law allows prescription only in supply of the loss of a grant, and, therefore, every prescription presupposes a grant to have existed. Thus, the lord of a manor can not prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription. 4. A fourth rule is, that what is to arise by mat- Matter of ter of record can not be prescribed for, but must be claimed by grant, entered on record; such as, for instance, 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 inquisition of a jury, and so made a matter of record, the forfeiture itself can not be claimed by an 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 distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, i 1 Vent., 387. [See 5 Nev. & M., 513.] (6) Where a copyholder claims common or other profit in the lord's soil, he can not prescribe for it in his own name, on account of the baseness and weakness of his estate, which, in consideration of law, is only a tenancy at will; neither can he prescribe in the lord's name, for he can not prescribe for common or other profit in his own soil; therefore, of necessity, the copyholder must entitle himself to it by way of custom within the manor. But where a copyholder claims common or other profit in the soil of a stranger, which is not parcel of the manor, he must prescribe in the name of the lord; namely, that the lord of the manor and his ancestor, and all those whose estate he has, have had common, &c., in such a place for himself and his customary tenants, &c., and then state the grant of the customary tenement; for the lord has the fee of all the copyholds of his manor. (4 Rep., 31, b; 6 Rep., 60, b; Hob., 86; Cro. Eliz., 390; Moore, 461; 1 Saund., 349.)-[CHITTY.] (7) The reason for this distinction is not very satisfactory; though the forfeiture must be matter of record, there VOL. II.-U Co. Litt., 114. seems no ground why the right to re- 305 |