left, the ftatutes give it to the executors and adminiftrators, instead of the first occupant; but they will not create a refidue, on purpose to give it to either. They only meant to provide an appointed inftead of a cafual, a certain inftead of an uncer tain, owner of lands which before were nobody's; and thereby to fupply this cafus omiffus, and render the difpofition of law in all refpects entirely uniform: this being the only inftance wherein a title to a real eftate could ever be acquired by occupancy. THIS, I fay, was the only inftance; for I think there can [261] be no other cafe devised, wherein there is not fome owner of the land appointed by the law. In the cafe of a fole corporation, as a parfon of a church, when he dies or refigns, though there is no actual owner of the land till a fucceffor be appointed, yet there is a legal, potential ownership, fubfifting in contemplation of law; and when the fucceffor is appointed, his appointment fhall have a retrofpect and relation backwards, fo as to entitle him to all the profits from the inftant that the vacancy commenced. And, in all other inftances, when the tenant dies inteftate, and no other owner of the lands is to be found in the common courfe of defcents, there the law vefts an ownership in the king, or in the fubordinate lord of the fee, by efcheat. So alfo in fome cafes, where the laws of other nations give a right by occupancy, as in lands newly created, by the rifing h But fee now the statute 5 Geo. III. . 17. which makes leafes for one, two, or three lives by ecclefiaftical perfons or any eleemofynary corporation of tithes or other incorporeal hereditaments, as good go to the executors or adminiftrators of the grantee, and be affets in their hands; and the ftatute in the cafe of rents and other incorporeal hereditaments, does not enlarge, but only preferve the estate of the grantee. P. Wms. 264. In p. 113, ante, it is said, that an estate pur auter vie cannot be entailed; yet if fuch an estate be limited to A in tail, with remainder to B, thefe limitations are defignations of the perfons who fhall take as fpecial Occupants; but any alienation of the quofi tenant in tail will bar the intereft of him in remainder. See Cox P. Wms. 265. of BOOK II. of an ifland in the fea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England afligns them an immediate owner. For Bracton tells us, that if an ifland arife in the middle of a river, it belongs in common to those 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 shore: which is agreeable to, and probably copied from, the civil law *. Yet this feems onlý · 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 ufually is whenever a feveral fishery is claimed', there it seems juft (and fo is the conftant practice) that the eyotts or little islands, arifing in any part of the river, shall be the property of him who owneth the pifcary and the foil. However, in cafe a new island rise in the fea, 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 fea, either by alluvion, by the washing up of fand and earth, fo as in time to make terra firma; or by derelicton, as when the fea 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 fmall and imperceptible degrees, it fhall go to the owner of the land adjoining °. For de minimis non curat lex and, befides, thefe owners, being often lofers by the breaking in of the fea, or at charges to keep it out, this poffible gain is therefore a reciprocal confideration for fuch poffible charge or lofs. But, if the alluvion or dereliction be sudden and confiderable, in this case it belongs to the king; for, as the king is lord of the fea, and so 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 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 R 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, it is faid that he shall have what the river has left in any other place, as a recompenfe for this fudden lofs. And this law of alluvions and derelictions, with regard to rivers, is nearly the fame 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 fovereign 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 vefted by law in the king. q Callis. 28. Inft. 2. 1. 20, 21, 22, 23, 24. See Vol. I. pag. 298. VOL. II, X CHAPTER THE SEVENTEENTH. OF TITLE BY PRESCRIPTION. A THIRD method of acquiring real property by purchafe 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 used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requifites and rules to be obferved, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries. At prefent therefore I fhall only, firft, diftinguish between custom, ftrictly taken, and prescription; and then fhew, what fort of things may be prescribed for. AND, firft, the diftinction between cuftom and prefcription is this; that custom is properly a local ufage, and not annexed to any perfon; fuch as a cuftom in the manor of Dale that lands fhall defcend to the youngest fon: prescription is merely a perfonal ufage; as, that Sempronius and his ancestors, or those whofe eftate he hath, have ufed time out of mind to have fuch an advantage or privilege. As for example; if there be a ufage 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 ftrictly a custom, for it is applied to the place in general, and not to any particular perfons: but if the a See Vol. I. pag. 75, &c. & Co. Litt. 113. < 1 Lev. 176. tenant, tenant, who is feifed of the manor of Dale in fee, alleges that he and his ancestors, or all those whofe eftate he hath in the faid manor, have ufed time out of mind to have common of pasture in such a close, this is properly called a prefcription; 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 whofe eftate he hath": which laft is called prescribing in a que eftate. And formerly a man might, by the common law, have prefcribed 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 ftatute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no perfon fhall make any prescription by the feifin or poffeffion of his ancestor or predeceffor, unless such feifin or poffeffion hath been within threefcore years next before fuch 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 bnt 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 8. 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 fort of title; a title by corporal feifin and inheritance, which is more permanent, and therefore more capable of proof, than that of prefcription. 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 elfe but immemorial ufage. 2. A prefcription must always be 4 Rep. 32. e Co. Litt. 113. f This title, of prefcription, was well known in the Roman law by the name of ufucapio; (Ef. 41. 3. 3.) fo called because a man, that gains a title by prefcription, may be faid vfu rem copere. X 2 g Dr & St. dial. 1. c. 8. Finch. 132. laid |