fuch eftate pur auter vie, after payment of debts, shall go in a course of diftribution like a chattel intereft. By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special occupancy, by the heir at law, continues to this day; fuch heir being held to fucceed to the ancestor's eftate, not by defcent, for then he must take an estate of inheritance, but as an occupant, specially marked out and appointed by the original grant. The doctrine of common occupancy may however be usefully remembered on the following account, among others that, as by the common law no occupancy could be of incorporeal hereditaments, as of rents, tithes, advowfons, commons, or the like, (because, with refpect to them, there could be no actual entry made, or corporal feifin had ; and therefore by the death of the grantee pur auter vie a grant of fuch hereditaments was entirely determined ) fo now, I apprehend, notwithstanding these statutes, fuch grant would be determined likewife; and the hereditaments would not be devisable, nor veft in the executors, nor go in a course of diftribution. For thefe ftatutes muft not be conftrued fo as to create any new eftate, or to keep that alive which by the common law was determined, and thereby to defer the grantor's reverfion; but merely to difpofe of an interest in being, to which by law there was no owner, and which therefore was left open to the firft occupant. When there is a refidue left, the ftatutes give it to the executors and administrators, instead of the firft occupant; but they will not create a refidue, on purpose to give it to either h. They only meant to provide an appointed instead of a cafual, a certain inftead of an uncertain, owner, of lands which before were nobody's ; and thereby to supply this cafus omiffus, and render the difpofition of law in all refpects entirely uniform: this being the only instance, wherein a title to a real estate could ever be acquired by occupancy. THIS, I fay, was the only inftance; for I think there can be no other cafe devised, wherein there is not some owner of the land appointed by the law. In the cafe of a fole corporation, as a parfen 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, subsisting in contemplation of law; and when the fucceffor is appointed, his appointment fhall have a retrofpect and relation backwards, fe as to entitle him to all the profits from the inftant 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 vests 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 island in a river, or by the alluvion or dereliction of the fea; in these inftances the law of England affigns them an immediate owner. For Bracton tells us1, that if an inland 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 neareft fhore: which is agreeable to, and probably copied from, the civil lawj. Yet this feems only to be reasonable, where the foil of the river is equally divided between the owners of the opposite fhores: for if the whole foil is the freehold of any one man, as it must be whenever a several fishery is claimed *, there it seems just (and fo is the ufual practice) that the eyotts or little islands, arifing in any part of the river, fhall 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 BOOK II, the fea, either by alluvion, by the washing up of fand and earth, fo as in time to make terra firma; or by dereliction, as when the fea fhrinks back below the ufual watermark; 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 ". 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 such poffible charge or lofs, But, if the alluvion or dereliction be fudden and confiderable, in this cafe it belongs to the king; for, as the king is lord of the sea, 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. 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 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 courfe of the river be changed by a sudden and violent flood, or other hafty means, and thereby a man lofes his ground, he fhall 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 those our determinations feem to have been drawn and adopted: but we ourselves, as iflanders, 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. n 2 Roll. Abr. 170. Dyer, 326. Callis. 24. 28. Ibid. 28. a Inft. 2. 1. 20, 21, 22, 23, 24. ? See Vol. I. pag. 298. CHAPTER THE SEVENTEENTH. OF TITLE BY PRESCRIPTION. A THIRD method of acquiring real property by pur chafe is that by prescription; as when a man can fhew no other title to what he claims, than that he, and thofe under whom he claims, have immemorially used to enjoy it. Concerning cuftoms, or immemorial usages, in general, with the several requifites and rules to be observed, in order to prove their existence and validity, we enquired at large in the preceding part of these commentaries. At present there fore I fhall only, firft, diftinguish between custom, ftrictly taken, and prescription; and then shew, what sort of things may be prescribed for. AND, first, the distinction between custom and prescription is this; that cuftom is properly a local ufage, and not an nexed to any perfon; fuch as, a custom in the manor of Dale that lands fhall defcend to the youngest fon: prescription is merely a personal usage; as, that Sempronius, and his anceftors, or those whofe eftate he hath, have used time out of mind to have fuch an advantage or privilege. As for ex ample: 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 ftrictly a custom, for it is applied to the place in general, and not to any particular persons; but if the a See Vol. I. pag. 75, Co. Litt. 113. &c. R 4 CI Lev. 176. tenant, tenant, who is feised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the faid manor, have used time out of mind to have common of pasture in fuch a close, this is properly called a prescription; for this is a ufage annexed to the perfon of the owner of this eftate. 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 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 feries of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person shall make any prescription by the feifin or poffeffion of his ancestor or predeceffor, unless fuch feifin or poffeffion hath been within threefcore years next be-1 fore fuch prefcription made f. SECONDLY, as to the feveral fpecies of things which may, or may not, be prescribed for: we may in the first place, obferve, that nothing but incorporeal hereditaments can be claimed by prefcription; 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 no man can 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 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 must always be d4 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, |