notice, as he once had a possibility of being heir; and therefore the younger brother shall not inherit, but the land shall escheat to the lord; though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood. (p) So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son: for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. (g) Sir Edward Coke in this case allows, (r) that if the ancestor be attainted, his sons born before the attainder may be heirs to each other; and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father; but he makes a doubt (upon the principles before mentioned, which are now over-ruled) (8) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole it appears, that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feudal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates thus impeded in their descent, result back and escheat to the lord.

[*256] *This corruption of blood, thus arising from feudal principles, but perhaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive part of the feudal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the Eighth, it is declared, that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21, (the operation of which is postponed by the statute 17 Geo. II, c. 39), it is enacted, that after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy farther (16) than was required by the hardship above complained of; which is the only future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

Before I conclude this head of escheat, I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute. But the law, we are told, (t) doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant *faileth. This is indeed founded upon the self same principle as the [*257] law of escheat; the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till

(p) Ibid, 8.

(9) Dyer, 48.

(r) Co. Litt. 8.

(8) 1 Hal. P. C. 357.

(f) Co. Litt. 13.

(16) See note 15, p. 254. As to the effect of attainder for treason on a title or dignity, see the Braye Peerage Case, 8 Scott, 108.

that practice was restrained by the statute of quia emptores, 18 Edw. I, st. 1, to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which, not being productive of any escheat, is not strictly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 and 12 Wm. III, c. 4, (17) that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin, being a Protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of popery, one who entered into religion, and became a monk professed, was incapable of inheriting lands, both in our own (u) and the feudal law; eo quod desiit esse miles seculi qui factus est miles Christi: nec beneficium pertinet ad eum qui non debit gerere officium. (w) But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate. These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord. (18)

CHAPTER XVI.

II. OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things which before belonged to nobody. This, as we have seen, (a) is the true ground and foundation of all property, or of holding those things in severalty, which, by the law of nature, unqualified by that of society, were common to all mankind. But when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognized by the laws of Rome, (b) quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (for of personal chattels I am not in this place to speak), hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was

(u) Co. Litt. 132.

(w) 2 Feud. 21.

(a) See pages 3 and 8.

(b) Fƒ. 41, 1, S.

(17) These harsh and unreasonable restrictions were very much modified by statutes 18 Geo. IIÌ, c. 60, 31 Geo. III, c. 32, and 43 Geo. III, c. 30; and by statute 10 Geo. IV, c. 7, commonly called the Roman Catholic Relief Act, Catholics are entitled to hold and enjoy real and personal estate without being required to take any other oath than such as by law may be required to be taken by any other subjects. See May's Constitutional History, ch. 13, for an account of the passage of this last mentioned act.

(18) Where lands escheat within one of the United States, the state, and not the general government, becomes entitled. But to perfect the right some courts hold that a process must be had commonly called "inquest of office" or "office found," to determine and adjudge the facts. See 4 Kent, 424, 425, note; 2 Washb. Real Prop. 444; ante, p. 249, n. (10.)

holden; in this case he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy. (c)

*This seems to have been recurring to first principles, and calling in [*259] the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly (d) was supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived: it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it; much less of so minute a remnant as this: it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the hæreditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands: for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regi. (e) And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may, enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this hæreditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety; (f) and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II, c. 3, which enacts (according to the ancient rule of law)(g) that where there is no special occupant, in whom the estate may vest, the tenant [*260] pur auter vie may devise it *by will, or it shall go to the executors or administrators, and be assets in their hand for payment of debts: the other, that of 14 Geo. II, c. 20, which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest.

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; such heir being held to succeed to the ancestor's estate, not by descent, for then he must take an estate of inheritance, but as an occupant specially marked out and appointed by the original grant. But, as before the statutes there could no common occupancy be had of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like, (h) (because, with respect to them, there could be no actual entry made, or corporal seisin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined,) so now, I apprehend, notwithstanding these statutes, such grant would be determined likewise; and the hereditaments would not be devisable, nor vest in the executors, nor go in a course of distribution. For these statutes must not be construed so as to create any new estate, or keep that alive which by the common law was determined, and thereby to defer the grantor's reversion, but merely to dispose of an interest in being, to which by law there was no owner, and which, therefore, was left open to the first occupant. (1) When there is a residue left, the statutes give it to the executors and

(c) Co. Litt. 41. (e) Co. Litt. 41.

(d) Bract. l. 2, c. 9, l. 4, tr. 3 c. 9, 24.
(f) Vaugh. 201. (9) Bract, ibid.

Flet. 1. 3, c. 12. ₹ 6, 1. 5, c. 5, 15.
Flet, ibid (h) Co. Litt. 41. Vaugh. 201.

(1) The statutes here referred to were repealed by 1 Vic. c. 26, § 1, except as to wills exe cuted before January 1, 1838; and by $3 an estate pur auter vie, of whatever tenure, may in all cases be devised by will, and by § 6, if not so devised, it shall be assets in the hands of the heir, as special occupant, for the payment of debts as in the case of freehold lands in fee

administrators, instead of the first occupant; but they will not create a residue, on purpose to give it to either.(i) They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform; this being the only instance wherein a title to a real estate could ever be acquired by occupancy.(2) *This, I say, was the only instance; for I think there can be no other [*261] case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is a legal, potential ownership subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, 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, also, in some cases, where the laws of other nations give a right by occupancy, as in lands newly created, by the rising of an island in the sea or in a river, or by the alluvion or dereliction of the waters; in these instances the law of England assigns them an immediate owner. For Bracton tells us,(j) 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.(k) 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,(7) there it seems just (and so is. the constant practice) that the eyotts 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,(m) yet ours gives it to the king.(n) *And as to lands [ *262 ] gained from the 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 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.(0) 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.(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. (3)

(i) But see now the statute 5 Geo. III, c. 17, which makes leases for one, two, or three lives, by ecclesiastical persons or any eleemosynary corporation, of tithes or other incorporeal hereditaments, as good and effectual to all intents and purposes as leases of corporeal possessions.

(k) Inst. 2, 1, 22.

(1) Salk. 637. See page 39.

(j) l. 2, c. 2. (m) Inst. 2, 1, 22. (n) Bract. 1. 2, c. 2. Callis, of sewers, 22. (0) 2 Roll. Abr. 170. Dyer, 326. (p) Callis, 24, 28.

simple, and if there shall be no special occupant, it goes to the executor or administrator, to be applied and distributed in the same manner as the personal estate.

(2) [In the mining districts of Derbyshire and Cornwall, by the laws of the Stannaries, an estate in mines might, and it is believed still may, be gained by occupancy. Geary v. Barcroft, 1 Sid. 347.]

(3) [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

In the same manner if a river, 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; (4) 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.(q) (5) And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law; (r) 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,(s) that whatever hath no other owner is vested by the law in the king.

(q) Callis, 28.

(r) Inst. 2, 1, 20, 21, 22, 23, 21.

(8) See Book I, page 298..

inland, unnavigable rivers and streams under similar circumstances belong to the proprietor of the estates to which such rivers act as boundaries; and hence it may be considered as law, that all islands, sand beds, or other parcels of agglomerated or concreted earth which newly arise in rivers, or congregate to their banks by alluvion, reliction, or other aqueous means, as is frequently to be observed in rivers where the current is irregular, such accumulated or relicted property belongs to the owners of the neighbouring estates. Schultes on Aquatic Rights, 138. See further, Com. Dig. Prerog. D. 61; Bac. Ab. Prerogative; 3 Bar. and C. 91; 5 B. and A. 268; 3 Ad. and El. 554; 5 Nev. and M. 234; 3 B. and Ad. 862. From the late case of the King v. Lord Yarborough, 3 Bar. and Cres. 91 (though the decision turned rather upon the pleadings and evidence than the general law of alluvion and reliction), and the cases eited, 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 Bing. 163; 4 B. and 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 other 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 on Aquatic Rights, 136, 137.]

Upon this subject see the following American cases; Adams v. Frothingham, 3 Mass, 352; Deerfield v. Arms, 17 Pick. 41; Trustees v. Dickinson, 9 Cush, 544; Emans v. Turnbull, Johns. 322; Halsey v. McCormick, 18, N. Y. 147; Giraud v. Hughes, 1 Gill and J. 249; Chapman v. Hoskins, 2 Md. Ch. 485; Lamb v. Rickets, 11 Ohio, 311; Morgan e, Livingston, 6 Mart. La. 19; New Orleans v. United States, 10 Pet. 662; St. Louis Public Schools v. Risley, 40 Mo. 356; Patterson v. Gelston, 23 Md. 432.

(4) [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. and W.327.]

(5) See cases cited in note 3. Also Lynch v. Allen, 4 Dev. and Bat. 62; Woodbury v. Short, 17 Vt. 387. As to alluvion formed on the shore of a lake or natural pond, see Murray v. Sermon, 1 Hawks, 56. Controversies frequently arise, in the case of alluvion; as to the proper division of the increase between the adjoining proprietors on the same side of the water, whose water front is thus extended, but the division line between whom may not, perhaps, have intersected the original shore line at right angles. In such a case the land formed by the alluvion is to be so divided as to give to each proprietor a length on the new water line proportioned to his length on the old water line, whether the one be longer or shorter than the other. Trustees v. Dickinson, 9 Cush. 544; People v. Canal Appraisers, 13 Wend. 355; O'Donnell v. Kelsey, 4 Sandf. 202; Deerfield v. Arms, 17 Pick. 41; Emerson v. Taylor, 9 Greenl. 44; Newton v. Eddy, 23 Vt. 319; Kennebeck Ferry Co. v. Bradstreet, 28 Me. 374. These cases will illustrate the rule and its application under different circumstances. See also Clark v. Campau, 19 Mich. 325; 13 Kent, 428; Ang. on Watercourses, §§ 53 to 60; Ang. on Tide Waters, 249 to 253.

502