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common, as well as real estates. They cannot indeed be vested in coparcenary; because they do not descend from the ancestor to the heir, which is necessary to constitute coparceners. But if a horse, or other personal chattel, be given to two or more, absolutely, they are joint-tenants hereof; and, unless the jointure be severed, the same doctrine of survivorship shall take place as in estates of lands and tenements.(n) And, in like manner, if the jointure be severed, as by either of them selling his share, the vendee and the remaining part-owner shall be tenants in common, without any jus accrescendi or survivorship. So, also, if 1002. be given by will to two or more, equally to be divided between them, this makes them tenants in common;(P) as we have formerly seen(q) the same words would have done in regard to real estates. But, for the encouragement of husbandry and trade, it is held that a stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property, and there shall be no survivorship therein.(r)10 (*) Litt. 282. 1 Vern. 452.

(?) Page 193. (°) Litt.821.

(") 1 Vern. 217. Co. Litt. 182. (P) 1 Eq. Ca. Abr. 292.

if it can be further extended with propriety: therefore in several cases such bequests to survivors, from the particular construction of each will, was considered efficient during the minority of the legatees, as they were not entitled to the benefit of the provisions before the age of twenty-one; and, perhaps, in order to effectuate the intention and prevent a lapse, when a life-interest is given prior to the distribution directed among the legatees, the period of survivorship will be extended during the life of the tenant for life. i Ves. 13. 3 Atk. 619. Amb. 383. A bequest to two or more in joint and equal proportions," or "jointly and between them,” will create a tenancy in common, the terms "joint” or “jointly'not being considered as intended to impart a joint-interest to the legatees, but to signify a gift to them altogether. Amb. 656. 1 Bro. C. C. 118. Although, as we have already seen, the words “equally to be divided," and "share and share alike," &c. will create a tenancy in common, yet when it appears from the context of the will that a joint-tenancy was intended, such words will not be permitted to sever the interests of the legatees. 3 Bro. C. C. 215. Holt's Rep. 370. Roper on Legacies, 2 vol. 259 to 287. Residuary legatees and executors are joint-tenants, unless the testator use some expression which converts their interest into a tenancy in common; and if one dies before a division or severance of the surplus, the whole that is undivided will pass to the survivor or survivors. 2 P. Wms. 529. 3 Bro. 455; and see p. 193, ante. - CHITTY.

10 As between partners in trade or farming there is, generally speaking, no survivorship between them as to personal property in possession, for each of their respective shares or degrees of interest go to their personal representatives, who become tenants in common with the survivor of all the partnership effects in possession, it being a maxim, inter mercatores juis accrescendi locum non habet. *Co. Litt. 3, 282, 182, a. 1 Vern. 217. 1 Meriv. 564. I Ld. Raym. 281. Vin. Abr. Partners. But it has been determined that the good will of a partnership survives; but that has been disputed. 5 Ves. 539. 15 Ves. 218. 1 Jac. & W. 267. A court of equity has barred survivorship, although the deceased partner, upon being informed that by law there would be a survivorship, said he was content the stock should survive, (1 Vern. 217;) and though if two persons take a farm, the lease will survive, but if they lay out money jointly upon it, in the way of trade, that turns round the estate at law and makes it equitable. 1 Ves. Jr. 435; see, further, 3 Chit. Com. L. 235, 236. But, although there is no survivorship as to partnership pro perty in possession, yet at law there is as to choses in action; for when one or more partners, having a joint legal interest on a contract, dies, an action against the said parties must be brought in the name of the survivor, and the executor or administrator of the deceased cannot be joined, neither can he sue separately, but must resort to a court of equity to obtain from the survivor the testator's share of the sum which has been recovered. 1 East, 497. 2 Salk. 441. 1 Ld. Raym. 346. Carth. 170. Vin. Abr. Partner, 11.--Chitty. VOL. I.-45

705

CHAPTER XXVI.

OF TITLE TO THINGS PERSONAL BY OCCUPANCY.

We are next to consider the title to things personal, or the various means of acquiring and of losing such property as may be had therein; both which considerations of gain and loss shall be blended together in one and the same view, as was done in our observations upon real property; since it is for the most part impossible to contemplate the one without contemplating the other also. And these methods of acquisition or loss are principally twelve :1. By occupancy. 2. By prerogative. 3. By forfeiture. 4. By custom. 5. By succession, 6. By marriage. 7. By judgment. 8. By gift or grant. 9. By contract. 10. By bankruptcy. 11. By testament. 12. By administration.

And, first, a property in goods and chattels may be acquired by occupancy: which, we have more than once remarked, (a) was the original and only primitive method of acquiring any property at all; but which has since been restrained and abridged by the positive laws of society, in order to maintain peace and harmony among mankind. For this purpose, by the laws of England, gifts and contracts, testaments, legacies, and administrations, have been introduced and countenanced, in order to transfer and continue that property and possession in things personal, which has once been acquired by the owner. And, *401]

where such *things are found without any other owner, they for the

most part belong to the king by virtue of his prerogative; except in some few instances, wherein the original and natural right of occupancy is still permitted to subsist, and which we are now to consider.

1. Thus, in the first place, it hath been said, that anybody may seize to his own use such goods as belong to an alien enemy.(6) For such enemies, not being looked upon as members of our society, are not entitled, during their state of enmity, to the benefit or protection of the laws; and therefore every man that has opportunity is permitted to seize upon their chattels, without being compelled, as in other cases, to make restitution or satisfaction to the owner. But this, however generally laid down by some of our writers, must in reason and justice be restrained to such captors as are authorized by the public author. ity or the state, residing in the crown;(c) and to such goods as are brought into this country by an alien enemy, after a declaration of war, without a safe-conduct or passport. And therefore it hath been holden,(d) that where a foreigner is resident in England, and afterwards a war breaks out between his country and ours, his goods are not liable to be seized. It hath also been adjudged, that if an enemy take the goods of an Englishman, which are afterwards retaken by another subject of this kingdom, the former owner shall lose his property therein, and it shall be indefeasibly vested in the second taker; unless they were retaken the same day, and the owner before sunset puts in his claim of property.(e) Which is agreeable to the law of nations, as understood in the (a) See pages 3, 8, 258.

(4) Bro. Abr. tit. propertie, 38; forfeiture, 57. () Freem. 40. Questions respecting the seizure of property as prizes seldom arise in the common law or equity courts, they being in general cognizable only in the admiralty courts; and when a ship is bona fide seized as prize, the owner cannot sustain an action in a court of common law for the seizure, though she be released without any suit being instituted against her, his remedy, if any, being in the court of admiralty. 2 Marsh. R. 133. And the same rule applies to the imprisonment of the person when it has taken place merely as a consequence of taking a ship as prize, although the ship has been acquitted. 1 Le Caux vs. Eden, Doug. 594. For the law respecting seizures and captures, and the modes of acquiring and losing property thereby, see the admiralty decisions of Sir William Scott, collected and arranged in 1 Chitty's Commercial Law, 377 to 512, and 2 Wooddes. 435 to 457.-Chitty,

2 And, by modern decisions, the right to sue upon contracts made with him during peace is only suspended, not forfeited, by war. 13 Ves. Jr. 71. 3 B. & P. 191. 6 Tau... 239. 1 Chitty's Com. L. 423 to 426.—Chitty.

() Finch, L. 178.

( Ibid.

3

time of Grotius, (f) even with regard to captures made at sea; which were held to be the property of the captors after a possession of twenty-four hours ; though the modern authorities(9) require, that before the property can *be changed, the goods must have been brought into port, and have continued a night intra presidia, in a place of safe custody, so that all [*402 hope of recovering them was lost.

And, as in the goods of an enemy, so also in his person, a man may acquire a sort of qualified property, by taking him a prisoner in war;(h) at least till his ransom be paid.(0) And this doctrine seems to have been extended to negroservants,(1) who are purchased, when captives, of the nations with whom they are at war, and are therefore supposed to continue in some degree the property of the masters who buy them: though, accurately speaking, that property (if it indeed continues) consists rather in the perpetual service, than in the body or person, of the captives.(k)

2. Thus again, whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor; and, as such, are returned into the common stock and mass of things: and therefore they belong, as in a state of nature, to the first occupant or fortunate finder, unless they fall within the description of waifs, or estrays,

) De j. 6. & p. 1. 3, c. 6,83.

idem A. quendam H. Scotum per ipsum A. de guerra captum () Bynkersh. quæst. jur. publ. 1. 4 Rooc. de Assecur. not. tanquam prisonem suum, quousque sibi de centum libris, per 66.

quas idem H. redemptionem suam cum præfato A. pro vita Bro. Abr. tit. propertie, 18.

sua salvanda fecerat satisfactum foret, detinuit) fregit, et We meet with a curious writ of trespass in the register, ipsum H. cepit et abduxit, vel quo voluit abire permisit, dec." (102) for breaking a man's house, and setting such his pri (3) 2 Lev. 201. soner at large. “Quare domum ipsius A. apur, W. (in qua (*) Carth. 396. Ld. Raym. 147. Salk. 667.

• Modern authorities require something more to vest the property of a captured vessel in the captors. “I apprehend that, by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchasor in Europe, during war, does look to the legal sentence of condemnation as one of the title deeds of the ship if he buys a prize-vessel. I believe there is no instance in which a man, having purchased a prize-vessel of a belligerent, has thought himself quite secure in making that purchase merely because that ship had been in the enemy's possession twenty-four hours, or carried infra præsidia." Sir William Scott, in the case of the Flad Oyen, 1 Rob. Rep. 139. See, also, 3 Rob. Rep. 97 and 236, 237, 238. Goss vs. Withers, 2 Burr. 683. Assivedo vs. Cambridge, 10 Mod. 79. But if, after the transfer of a prize to a neutral, a peace be concluded between the belligerents, the transfer becomes valid, even though there was no legal condemnation. 6 Rob. Rep. 142. The title of a neutral will not be defeated by his subsequently becoming an enemy. 6 Rob. Rep. 45. See 1 vol. Chitty's Com. L. 433, 434. It has been established by several acts of parliament that, among English subjects, ships or goods taken at sea by an enemy, and afterwards retaken at any indefinite period of time, and whether before or after sentence of condemnation, are to be restored to the original proprietors on payment of certain salvage. 2 Burr. 1198, and 1 Bla. Rep. 27. The statute 43 Geo. III. c. 160 s. 39 makes an exception as to ships which have been set forth by the enemy as vessels of war, enacting that these shall not be restored to the original owners, but belong wholly to the recaptors. And if the property recaptured were captured first in an illegal trade, then the original right is divested, and the recaptors are not bound to restitution. 2 Rob. Rep. 77. In the case of the Santa Cruz (1 Rob. Rep. 49) Sir William Scott said, “The actual rule of the English maritime law I understand to be this: that the maritime law of England, having adopted a most liberal rule of restitution with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies till it appears that they act towards British property on a less liberal principle. In such a case it adopts their rule, and treats them according to their own measure of justice.” But restitution in any case is not gratuitous ; for, by the 43 Geo. III. c. 160, certain rates of salvage are secured to the recaptors for saving or recovering the property. One-eighth of the beneficial interest in the whole recaptured property is given to king's ships, and one-sixth to private ships. And the reward of salvage is given in cases of rescue when it is effected by the rising of the captured crew against the captors. 1 Rob. Rep. 271. 4 ib. 47. 1 Edw. Rep. 68. -Chitty.

* Ransom of ships, &c. is now illegal, unless in case of necessity, to be allowed by the admiralty, by 22 Geo. III. c. 25. 43 Geo. III. c. 160, ss. 34, 35, 36. 42 Geo. III. c. 52.-CHITTY.

or wreck, or hidden treasure; for these, we have formerly seen,(1) are vested by law in the king, and form a part of the ordinary revenue of the crown."

3. Thus too the benefit of the elements, the light, the air, and the water, can only be appropriated by occupancy. If I have an antient windows overlooking my neighbour's ground, he may not erect any blind to obstruct the light: but if I build my house close to his wall, which darkens it, I cannot compel him to demolish his wall; for there the first occupancy is rather in him than in me.

(9) Book i. ch.7.

5

Chancellor Kent

says, “It is requisite that the former owner should have completely relinquished the chattel, before a perfect title will accrue to the finder; though he has in the mean time a special property sufficient to maintain an action for an injury to it, or to recover possession from any but the true owner. Armor vs. Delamire, 1 Stra. 505. Branden vs. Huntsville Bank, I Stewart, 320. He is not even entitled to a reward from the owner for finding a lost article, if none has been promised. He has no lien on the article found for his trouble and expense; and he is only entitled to indemnity against his necessary and reasonable expenses incurred on account of the chattel. Armory vs. Flynn, 10 Johns. 102. Binstead vs, Buck, 3 Sir Wm. Bl. 1117. Nicholson vs. Chapman, 2 71. Bla. 254. Elter vs. Edwards, 4 Watts, 63. It is considered in the two last cases to be still an unsettled point whether the finder of lost property can recover a compensation for the labour and expense voluntarily bestowed upon lost property found. In Reeder vs. Anderson, 4 Dana, 193, it was held that the finder was entitled, under an implied assumpsit, for his indemnity at least against his expenditure of time or money in the successful recovery of lost property. Mr. Justice Story (Bailment, p. 391, 2d ed.) gives a strong opinion in favour of compensation (or what he in admiralty-law language calls salvage) to the 'mere finders of lost property on land,' beyond a full indemnity for their reasonable and necessary expenses. I beg leave to say that it appears to me that such findings have no analogy in principle to the cases of hazardous and meritorious sea or coast salvage under the admiralty law, and that the rule of the common law as illustrated by chief-justice Eyre in Nicholson vs. Chapman, as to these mere land findings, is the better policy.” 2 Com. 356.-SNARSWOOD.

Formerly it was holden that a party could not maintain an action for a nuisance to an ancient light, unless he had gained a right to the window by prescription. 1. Leon. 168. Cro El. 118. But the modern doctrine is, that upon proof of an adverse enjoyment of lights for twenty years or upwards unexplained, a jury may be directed to presume a right by grant or otherwin. 2 Saund. 175, a. 1 Esq. R. 148. But if the window was opened during the seisin of a mere tenant for life, or a tenancy for years, and the owner in fee did not acquiesce in, or know of the use of the light, he would not be bound. 11 East, 372. 3 Campb. 444. 4 Camb. 616. And where the adjoining land was glebeland, in the possession of a rector, tenant for life, it was held that there could be no presumption of a grant so as to preclude a purchasor thereof, under 55 Geo. III. c. 147, from building and obstructing an ancient light, (4 B. & A. 579;) but when the window has been proved to have been in existence upwards of twenty years, and its origin cannot be traced, the purchasor from the owner in fee cannot disturb it, though no evidence that the latter acquiesced in the window can be adduced. 2 Bar. & Cres. 686. 4 Dowl. & R. 234. If the owner of land build a house on part, and afterwards sell the house to one person and the rest of the land to another, the vendee of the house may maintain an action against the vendee of the land for obstructing his light, though the house was not an ancient one; because the law will not suffer the vendor, or any person claiming under him, to derogate from his own grant; and consequently less than twenty years' use of the light suffices. 1 Lev. 122. 1 Ventr. 237. i Price, 27. Rayn. vs. Moodys, Rep. 24. 2 Saund. 144, n. 4. But if an ancient window has been completely blocked up above twenty years, it loses its privilege, (3 Camb. 514;) and even the presumption of right from twenty years' undisturbed enjoyment is excluded by the custom of London, which entitles every citizen to build upon an ancient foundation as high as he pleases. Com. Rep. 273. 2 Swanst. 333. But the circumstance of a window being built contrary to the building act affords no defence to an action for obstructing it, (1 Marsh, 140;) and if ancient windows be raised and enlarged, the owner of the adjoining land cannot legally obstruct the passage of light and air to any part of the space occupied by the ancient window. 3 Camb. 80. Total deprivation of light is not necessary to sustain this action; and, if the party cannot enjoy the light in so free and ample a manner as he did before, he may sustain the action; but there should be some sensible diminution of light or air. 4 Esq. R. 69. Chilton vs. Sir T. Plumer, K. B. A. D. 1822. The building a wall which merely obstructs the prospect is not actionable, (9 Co. 58, b. 1 Mod. 55;) nor is the opening a window and destroying the privacy of the adjoining property ; but such new window may be immediately obstructed, to prevent a right to it being acquired by twenty years' use. 2 Camb. 82.-Chitty.

If my neighbour *makes a tan-yard, so as to annoy aud render less salubrious the air of my house or garden, the law will furnish me with a

[*403 remedy; but if he is first in possession of the air, and I fix my habitation near him, thé nuisance is of my own seeking, and may continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbour's prior mill, or his meadow: for he hath by the first occupancy acquired a property in the current.'

4. With regard likewise to animals feræ naturæ, all mankind had by the original grant of the Creator a right to pursue and take any fowl or insect of the air, any fish or inhabitants of the waters, and any beast or reptile of the field : and this natural right still continues in every individual, unless where it is restrained by the civil laws of the country. And when a man has once so seized them, they become while living his qualified property, or, if dead, are absolutely his own: so that to steal them, or otherwise invade this property, is, according to their respective values, sometimes a criminal offence, sometimes only a civil injury. The restrictions which are laid upon this right, by the laws of England, relate principally to royal fish, as whale and sturgeon, and such terrestrial, aerial, or aquatic animals as go under the denomination of game; the taking of which is made the exclusive right of the prince, and such of his subjects to whom he has granted the same royal privilege. But those animals which are not expressly 80 reserved, are still liable to be taken and appropriated by any of the king's subjects, upon their own territories; in the same manner as they might have taken even game itself, till these civil prohibitions were issued: there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference, at present made, arises merely from the positive municipal law.

5. To this principle of occupancy also must be referred the method of acquiring a special personal property in corn growing on the ground, or other emblements, þy any possessor *of the land who hath sown or planted it, whether he be owner of the inheritance, or of a less estate : which emblements are

[*404 distinct from the real estate in the land, and subject to many, though not all,

Running water is originally publici jusis; and an individul can only acquire a right to it by applying so much of it as he requires for a beneficial purpose, leaving the rest to others, who, if they acquire a right to it by subsequent appropriation, cannot lawfully be disturbed in the enjoyment of it. But where the plaintiff alleged that defendant had erected one dam above plaintiff's premises, and widened another, and thereby prevented the water from running in its usual course and in its usual calm and smooth manner to the plaintiff's premises, and thereby the water ran in a different channel and with greater violence, and injured the banks and premises of plaintiff, but did not allege any injury from the want of a sufficient quantity of water, and the jury found that plaintiff's premises were not injured, but were of 'opinion that defendant had no right to stop the water or keep it pent up in the summer time, held that the plaintiff could not recover damages for the erection of the dam, but was bound to allege and prove that he had sustained an injury from the want of a sufficient quantity of water. 2 B. & C. 910. 4 Dowl. & Ryl. 583, S. C. The owner of lands through which a river runs cannot, by enlarging a channel of certain dimensions leading out of the river through which the water had been used to flow before any appropriation of it by another, divert more of it, to the prejudice of any other land-owner lower down the river, who had at any time before such enlargement appropriated to himself the surplus water which did not escape by the former channel. 6 East, 208. And the occupier of a mill may maintain av action for forcing back water and injuring his mill, although he has within a few years previous erected a wheel requiring less water than the one he previously used. 1 B. & A. 258. But where the defendant erected a dam above the mill of the plaintiff, by which the water was diverted from its accustomed channel, but to which it returned long before it reached the plaintiff's mill, which diversion affected the regularity of the supply, though it produced no waste of water, it was held that the plaintiff was entitled to recover. 7 Moore, 345. As to the pleadings, see 1 Price's Rep. 1 and 2 Chitty on Pl. 788.- CHITTY.

* The right to emblements does not seem to be aptly referred to the principle of occupaney; for they are the continuation of an inchoate, and not the acquisition of an original, right.-Christian.

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