of an island in the fea or in a river, or by the alluvion or dereliction of the waters; in these inftances the law of England afligns 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 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 law *. 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 ufually is whenever a feveral fishery is claimed', there it seems juft (and fo is the constant practice) that the eyotts or little iflands, 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 [262] the sea, either by alluvion, by the washing up of fand and earth, so as in time to make terra firma; or by derelicton, as when the fea fhrinks back below the ufual 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 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 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 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 fame manner if a river, running between

il. 2. c. 2.

k Inft. 2. 1. 22.

1 Saik. 637. See pag. 39.

m Inft. 2. 1. 18.

22.

n Bract. 1. 2. c. 2. Callis of fewers.

• 2 Roll. Abr. 170. Dyer. 326.

P Callis. 24. 28.

two

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 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 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 sovereign 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.

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 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 ufages, in general, with the feveral requifites and rules to be observed, in order to prove their exiftence and validity, we inquired at large in the preceding part of these commentaries. At prefent therefore I fhall only, firft, diftinguish between custom, strictly taken, and prescription; and then fhew, what fort of things may be prefcribed for. '

AND, first, the diftinction between custom and prescription is this; that cuftom is properly a local ufage, and not annexed to any perfon; fuch as a cuftom in the manor of Dale that lands fhall descend to the youngest son: prescription is merely a perfonal ufage; 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 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 ufage) 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.

b Co. Litt. 113.

1 Lev. 176.

tenant,

tenant, who is feised 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 used time out of mind to have common of pasture in such a clofe, this is properly called a prefcription; for this is a ufage annexed to the perfon 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 prefcribing in a que eftate. And formerly 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 ftatute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no perfon fhall make any prefcription by the feifin or poffeffion of his ancestor or predeceffor, unless fuch feifin or poffeffion hath been within threefcore years next be fore such prescription made.

SECONDLY, as to the several species 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 prescription; a 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 a man fhall not be faid to prefcribe, that he and his ancestors have immemorially ufed to hold the caftle of Aruadel: 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 else but immemorial ufage. 2. A prescription must always be

BOOK II. laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot preferibe, by reafon of the imbecility of their eftates ". For, as prefcription is ufage beyond time of memory, it is abfurd that they should pretend to prefcribe for any thing, 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 muft 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 demifed the faid manor, with it's appurtenances, to him the faid tenant for life. 3. A prefcription cannot be for a thing which cannot be raifed by grant. For the law allows prescription only in fupply of the lofs of a grant, and therefore every prefcription prefuppofes a grant to have exifted. Thus the 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 '. 4. A fourth rule is, that what is to arife by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; fuch as, for instance, the royal franchifes of deodands, felons' goods, and the like. Thefe, not being forfeited till the matter on which they arife is found by the inquifition of a jury, and fo made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, eftrays, and the like, may be claimed by prefeription; for they arife 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 preferibing that is, whether a man thall prefcribe in a que eftate, or in himself and his anceflors. For, if a man preferibes in a que ciate, (that is, in himself and those whofe eftate he holds) nothing