The importance of the distinction between the acquisition of an estate by purchase and by descent principally consists in this:- that the future devolution upon intestacy of the tenant is governed by different rules. Of this we have said enough.

There is also occasionally an importance in reference to the liability of an estate, to the engagements of those of whom the owner is heir; for in the case we have suggested, of a gift to A.'s heir, when A. takes no estate and therefore the heir takes by purchase, although the estate will afterwards descend as if A. had been the purchaser, it will not be liable in the hands of successive owners, for A.'s engagements (m).

This is the legal signification of the perquisitio or purchase, and in this sense it includes the following methods of acquiring titles to estates: 1. Occupancy; 2. Prescription (to which may be added the title acquired under the Statutes of limitations); 3. Forfeiture; 4. Alienation.

Of all these in their order.

Occupancy is the taking possession of those things, which before belonged to nobody. (326) We have already discussed its connection with the foundation of 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 is agreed that everything capable of ownership shall have an owner, natural reason suggests that he who first declares his intention of [* 412] *appropriating anything to his own use, and, in consequence of such intention, actually takes it into possession and adopts a course of action grounded upon that fact, shall thereby gain the absolute property of it; according to that rule of the law of nations, recognised by the laws of Rome (n), quod nullius est, id ratione naturali occupanti conceditur.

This right of occupancy, so far as it concerns real property (and of this only we are now treating, the title to personal chattels being reserved for a later place), has but little application in English law. The only instance, in fact, in which it ever has been admitted was that which we noticed in discussing the nature of an estate pur autre vie, and, as we there saw, the general doctrine of occupancy by which persons wholly strangers to the property acquired title has ceased to exist. And the persons who still acquire title as special occupants are, in fact, those very persons who, according to rules of descent applicable to other cases, would also acquire title.

There are some cases, where the laws of other nations give a right by occu pancy, 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; but in these instances the law of England assigns them an immediate owner. Bracton tells us (0), that if an island arise in the middle of a

New lands forming in the sea, rivers, &c.

(m) It will be remembered that the recent improvements in the law render every estate, whether descended or devised, liable in the hands of the heir or devisee to all the engagements of the person from whom it descended or by whom it was devised. 3 & 4 Will. 4, c. 104, extended this liability for the first time to meet the claims of simple contract

creditors.

(n) Dig. 41, 1, 3.

(0) "Habet etiam locum endem species acces

sioni in insula nata in flumine; quæ si quidem mediam partem fluminis teneat, communis est eorum qui qua indiviso ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujuscunque fundi quo latitudo prope ripam sit; quod si alteri parti proximior sit, eorum est tantum qui ab ea parte prope ripam prædia possident." Lib. 2, c. 2; see Inst. lib. 2, tit. 1, s. 22, from which Bracton seems to have adopted the above passage almost verbatim.

(326) See 3 Washb. Real Prop. 50, 3d ed.

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 to him who is proprietor of the nearest shore. The first part of this statement hardly repre[* * 413] sents the exact rule in this case, for it is now well settled (p) that the soil or alveus of non-navigable rivers is not the common property of the riparian proprietors, but each is entitled in severalty ad medium filum aquæ (q), and this right of property which, whilst the land continues covered with the water is subject to the rights of water belonging to other riparian proprietors, becomes an absolute right when the stream is from any cause permanently diverted. Therefore it would seem that the island mentioned by Bracton as rising in the middle of the stream would belong not to the riparian owners in common, but a part of it to each of them in severalty, the shares being separated by the line which previously was the middle line of the water. Bracton's statement was copied from the civil law, which apparently did not adopt the principle of several private property in the soil of the river (r).

If the course of the river be changed by a sudden and violent flood or other similar means, so that a riparian owner loses suddenly his land, it would seem that though his land has become part of the alveus, yet he has not lost his right of recovering it by any works which he may erect to keep out the river, whatever may be the consequences of such works to the opposite owner (s). *The channels of navigable rivers are, as has been already [* 414] remarked (t), public highways, and the soil is presumably in the crown (u). In such cases the same principles apply to give the crown the relicted land.

So, also, when the alveus or soil of the river belongs to a subject not a riparian owner, as sometimes happens where a several fishery is claimed (x), any eyott or little island which may be formed in the river becomes the property of him to whom the alveus belongs. However, in case a new island rise in the sea, though the civil law gives it to the first occupant (y), yet ours gives it to the king (z); and, we may add, that when a new country is thus acquired by occupancy, the laws of England as existing at the period of such occupancy

(p) Bickett v. Morris, L. R. 1 H. L. Sc. 47. (q) Ante, p. 37; and see Wishart v. Wyllie, 1 Macq. 389.

(r) Ille alveus quem sibi flumen fecit etsi privatus antea fuit incipit tamen esse publicus." Dig. 43, 12, 1, 7. The rule as to islands in a river referred to above (Inst. 2, 1, 22) immediately follows the rule that islands rising in the sea become the property of the first occupant, and the proprietary given seems to be that of a special occupant.

(8) Having regard to the new established doctrines as to the ownership of the alveus in non-navigable rivers and the rights incident to such ownership, it is conceived that this would be the law; as to these rivers, there is a case cited in Callis, 51, from the 22 Lib. Ass. pl. 93, which seems to bear out the views expressed in the text. "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 VOL. I.-86

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.'" (t) Ante, p. 108.

(u) Williams v. Wilcox, 8 Ad. & E. 314; Hale, De Jure Maris, Part 1, c. 2, where the presumption is stated to extend only to the highest point reached by the flow of the tide ; but the case of Lord Advocate v. Hamilton, 1 Macq. 46, seems to extend the presumption to all parts of a navigable river. A person claiming to be owner must therefore claim under a grant from the crown, either express or presumed.

(x) Smith v. Kemp, Salk. 637; ante, p. 108. (y) Inst. 2, 1, 18.

(2) Bract. 1. 2, c. 2 (where that author, in mistaken support of the doctrine, states our law to be the same as that of the civil law); Callis, 22; Hale, De Jure Maris, 17.

*

accrue to the new acquisition (a). (327) And as to lands 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 water-mark; 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 [*415] owner of the land adjoining (b). 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 (c). So that the quantity of ground gained, and the time during which it is gaining, seem to determine whether it is the king's or the subject's property. 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 (d). (328)

(a) Datton v. Howell, Show. 32.

(b) 2 Roll. Abr. 170; Dyer. 326; see Schultes, Aquatic Rights, 115; In re Hull and Selby Railway, 5 M. & W. 327. Such a gain and loss happens on the east coast of England not unfrequently. The coast of Norfolk loses considerable land annually, whilst the coast of Essex gains. See Lyell, Principles of Geol. bk. 2, pt. 1, c. 6.

(c) Callis, 24, 28; Com. Dig. Prerog. D. 61; Bac. Ab. Prerog.; R. v. Lord Yarborough, 3 B. & C. 91; 5 Bing. An owner of land bordering on the sea may erect any works so as to protect the land from the encroachment of the sea. R. v. Pagham Commissioners, 8 B. & Cr. 355. On a river, whether navigable (A.-G. v. Lord Lonsdale, L. R. 7 Eq. 377) or not (Rickett v. Morris, L. R. 1 H. L. Sc. 47), such buildings must not encroach on the alveus. Farquharson's Case, 7 Morr. Dict. 12, 787.

(d) Supra, note (b); and see A.-G. v. Lord Lonsdale, L. R. 7 Eq. 37. "Per alluvionem autem id videtur adjici quod ita paulatim adjicitur, ut intelligere non possessimus quantum quoque momento temporis adjiciatur." Inst. 2, 1, 20; Pand. xli. 1. A somewhat peculiar case involving the principles here

treated of is now depending in the courts, concerning the manor of Lancing, in Sussex, The river Adur formerly flowed at right angles to the sea, but some time ago the action of the tides began to throw a bank of shingle across its mouth, and along the shore to the east. The effect of this has been that the river, instead of entering the sea, has turned towards the east, and flowed parallel to the shore, having a bank of land between it and the sea, both beds of the river and the bank having formerly been below high watermark. The question to be determined is to whom the bank belongs, whether to the lord of the manor of Lancing, which manor abuts on the river on the west side, or to the own ers of the land on the east side of the river, opposite to the accretion. The first impres sion of the court seems to have been in favour of the former. The case we refer to is Llyod v. Ingram, which may ultimately be decided by the title acquired through long See further, on these principles, Com. Dig. Prerog. D.; Bac. Ab. Prerog.; R. v. Lady St. John Mildmay, 5 B. & Ad. 254; Blewett v. Tregonning, 3 A. & E. 554; 5 N. & M. 234; 3 B. & A. 862.

user.

(327) How far the laws of England were regarded as in force, or were adopted by the colonies of the States, see ante, 88, note 53.

(328) Where an island is newly formed in the middle of a stream running between the lands of two proprietors, it will be equally divided between the two proprietors. Trustees, etc. v. Dickinson, 9 Cush. 544, 548. But, if one portion of the island approaches nearer to one side of the stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. Ib.

If the island be wholly on one side of the bed of the river, the common law gives the whole island, or the bare ground formed in the bed of the river, to the owner of the land on that side of the river. Ib.

Alluvion is the addition made to land by the washing of the sea or rivers; and the characteristic of alluvion is its imperceptible increase, which is so slow, gradual and insensi ble that it cannot be shown at what time it occurred. Ib.

[* 416]

The law of alluvions and derelictions, with regard to rivers is nearly the same in the imperial law (e); from whence indeed some at least of our determinations seem to have been adopted: but we ourselves, as islanders, have applied them to marine increments; and we have in this as in many other instances given our sovereign the prerogative he enjoys, as well upon the ground of his supreme lordship as also upon the general principle adopted by our law, that whatever has no other owner is vested by law in the king.

(e) See the passage cited in former notes.

In those cases in which the change is so gradual that it cannot be perceived at any one moment of time, the proprietor, whose bank on the river is increased, is entitled to the addi tion. Adams v. Frothingham, 3 Mass. 352; Halsey v. McCormick, 18 N. Y. (4 Smith) 147; Chapman v. Hoskins, 2 Md. Ch. 485; Emans v. Turnbull, 2 Johns. 313; New Orleans v. United States, 10 Peters, 662; Lamb v. Rickets, 11 Ohio, 311.

Where an island is so formed in the bed of a river not navigable, as to divide the channel and lie partly on each side of the thread of the river, it will be divided between the riparian proprietors on the opposite sides of the river according to the original thread of the river. Deerfield v. Arms, 17 Pick. 41, 45. Land formed by alluvion in a river is, in general, to be divided among the several riparian proprietors entitled to it, according to the following rule: Measure the whole extent of their ancient line on the river and ascertain how many feet each proprietor owned on this line; divide the newly-formed river line into equal parts, and appropriate to each proprietor as many of these parts as he owned feet on the old line; and then draw lines from the points at which the proprietors respectively bounded on the old, to the points thus determined as the points of division on the newly-formed shore. Ib. This rule is to be modified under particular circumstances; for instance, if the ancient margin has deep indentations or sharp projections, the general available line on the river ought to be taken, and not the actual length of the margin as thus elongated by the indentations or projections. Ib. The effect of that rule is, to give each one 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." SHAW, Ch. J., in Trustees, etc. v. Dickinson, 9 Cush. 544, 552, 553. See, also, People v. Canal Appraisers, 13 Wend. 355; O'Donnell v. Kelsey, 4 Sandf. 202; Emerson v. Taylor, 9 Greenl. 44; Newton v. Eddy, 23 Vt. 319; Clark v. Campan, 19 Mich. 325, 329.

The right to alluvion depends upon the fact of the contiguity of the estate to the river; and before there can be a right to accession or accretion there must be an estate to which the accession can attach; therefore, where accretion is made before a strip of land bordering on a river, the accretion belongs to it, and not to the larger portion behind it, and from which the strip was sold when separated. Saulet v. Shepherd, 4 Wall. 502, 508; Banks v. Ogden, 2 id. 58, 69.

TITLE BY PRESCRIPTION, AND UNDER THE STATUTE OF LIMITATIONS.

A SECOND method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have long used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at some length in the preceding part of these Commentaries (a). At present, - therefore, we will merely distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for, and how the claim may be established.

Distinction

And, first, the distinction between custom and prescription is this: that custom is properly a local usage, and not annexed to any person, or the possession of any particular property, such as a custom in the manor between custom of Dale that lands shall descend to the youngest son: prescription, and prescription. on the other hand, is a strictly personal right; as, that A. and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (b). As for example, if there be a usage in the parish of Dale, that all the inhabitants of that parish may run horse races on Ascension Day, or dance, on a certain close within the parish (c), at all times for their recreation, * or draw water from a well in a private [* 418 ] person's grounds, or erect booths on fair day (which have been held to be lawful customs (d)), these are strictly customs, for they are applied to the place in general, and not to any particular persons, or annexed to the possession of any particular houses in the place. But if the tenant who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he has in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate.

We may observe that a custom cannot confer a right to take a profit à prender from a man's land. Therefore a custom for all the inhabitants of a parish to fish in a man's pool and carry away the fish is bad (e), as also is an alleged custom to carry off the sand blown from the sea shore upon a man's close (ƒ). (329)

(a) Vol. i., p. 69, &c.

(b) Co. Litt. 113; 5 N. & M. 308; 1 N. & P. 172; 1 Saund. 340 C. n. e.

(c) If the land over which the right is ciaimed be in another parish the custom is bad, particularly if it be unrestricted as to the duration of the user. Sowerby v. Coleman, L. R. 2 Exch. 96.

(d) Abbot v. Weekly, 1 Lev. 176; Mounsey v. Ismay, 1 H. & C. 729; 3 ib. 486; Race v. Ward, 4 E. & B. 702; Tyson v. Smith, 9 A. & E. 406.

(e) Bland v. Lipscombe, 4 E. & B. 713 n.
(f) Blewett v. Tregonning, 3 A. & E. 554;

Padwick v. Knight, 7 Exch. 854. See also Constable v. Nicholson, 4 C. B. N. S 230; Mills v. Mayor of Colchester, L. R. 2 C. P. 476. A curious custom has been established in Cornwall called tin-bounding, which seems rather contradictory to the doctrine stated in the text. It is this; that where there are mines under waste land which the owner does not choose to work, any person may mark off a portion of the waste, and if the owner does not work the tin within a year, the bounder has a right to work it, paying a royalty to the owner. Rogers on Mines, 347; Ivimey v. Stocker, L. R. 1 Ch. 396.

(329) See ante, 51, 52, note 20.