entitle him to all the profits from the intant that the vacancy commenced. And, in all other instances, when the tennant 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 (1), 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 (7). [262] 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 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 (o). 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 (6). In (6) 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 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 Aquat. Rights, 138. See further, Com. Dig. Prerog. D. 61. Bac. Ab. Prerogative. 3 Bar. & C. 91. 5 B. & A. 268. From the late case of the King v. Lord Yarborough, 3 Bar. & Cres. 91. (though the decision turned rather upon the pleadings and evidence than the general law of alluvion and reliction), and the cases cited, 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, 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: 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 (9). 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 law in the king. CHAPTER XVII. III. OF TITLE BY PRESCRIPTION (1). A THIRD method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially 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 large in the preceding part of these commentaries (a). At present therefore I shall only, first, distinguish between custom, strictly 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 custom is properly a local usage, and not annexed to a person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius 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 by alluvions or relictions, however large it may ultimately become. 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 VOL. I. 82 (a) See Book I. pag. 75, &c. 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, 7. (1) See in general, Com. Dig. Prescription; Vin. Ab. Prescription; Bac. Ab. Customs; Saunders by Patteson, index, tit. Prescription, and tit. Custom, and ante 35. note 28. per tot. 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 (c) to be a lawful usage); this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the [*264] *tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath 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. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath (d): which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though. his or their enjoyment of it had been suspended (e) for an indefinite series 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 seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made (ƒ). Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; 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 (g). For a man shall not be said to prescribe, that he and his ancestors have immemoriably used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin, 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 seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A [*265] prescription must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates (h). For, as prescription is usage beyond time of memory (2), it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles devised the said manor, with its appurtenances, to him the said tenant for life (3). 3. A prescription cannot (c) 1 Lev. 176. (d) 4 Rep. 32. (e) Co. Litt. 113. (f) This title, of prescription, was well known in the Roman law by the name of usucapio, (Ff. 41. (2) As to legal memory, ante 31. (3) Thus in prescribing for common appurtenant, a man avers his seisin in fee of the land to which he claims his common, and then says that he and all those whose estate he has in the 3, 3.) so called because a man, that gains a title by land, from time whereof the memory of man is not to the contrary, had, and of right ought to have had, common of pasture in the place, where, &c. for his cattle levant and couchant, in the land whereof he was so seised. 1 Saund. be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed (4). Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription (i). 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felons' goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record (k). 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds), nothing *is claimable by this prescription, but such things as are incident, [*266] appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connexion; but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross (1). Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a (i) 1 Vent. 367. (k) Co. Litt.114. 346. This is termed prescribing in a que estate, from the words in italic. Id. note 2. 4 T. R. 718, 9. Cro. Car. 599. If the party claims the easement as a member of a corporation, he must then prescribe under the corporation, stating that the same have immemorially been entitled to have for themselves and their burgesses common of pasture, and then aver that he was a burgess. 1 Saund. 340. b. Where a copyholder claims common or other profit in the lord's soil, he cannot prescribe for it in his own name, on account of the baseness and weakness of his estate, which in consideration of law, is only a tenancy at will; neither can he prescribe in the lord's name, for he cannot prescribe for common or other profit in his own soil, therefore of necessity the copyholder must entitle himself to it by way of custom within the manor. But where a copyholder claims common or other profit in the soil of a stranger, which is not parcel of the manor, he must prescribe in the name of the lord; namely, that the lord of the manor and his ancestor, and all those whose estate he has, have had common, &c. in such a place for himself and his customary tenants, &c. and then state the grant of the customary tenement; for the lord has the fee of all the copyholds of his manor. 4 Rep. 31. b. 6 Rep. 60. b. Hob. 86. Cro. Eliz. 390. Moore, 461. (7) Litt. 183. Finch. L. 104. 1 Saund. 349. (4) The general rule with regard to prescriptive claims is, that every such claim is good if by possibility it might have had a legal commencement, 1 Term R. 667. ante 31. note (14) and 35. note (28); and from upwards of twenty years' enjoyment of an easement or profit a prendre, grants, or, as lord Kenyon said, even a hundred grants will be presumed, even against the crown, if by possibility they could legally have been made. 11 East, 284. 495. Thus a fair or market may be claimed by prescription, which presumes a grant from the king, which by length of time is supposed to be lost or worn out, Gilb. Dist. 22; but if such a grant would be contrary to an express act of parliament it would be otherwise. 11 East, 495. But an exception to the general rule is the claim of toll thorough, where it is necessary to shew expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse. 1 T. R. 667. 1 B. & C. 223. An ancient grant without date does not necessarily destroy a prescriptive right, for it may be either prior to time of legal memory or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bla. R. 989. Nor will a prescriptive right be destroyed by implication merely in an act of parliament. 3 B. & A. 193. man may prescribe in a que estate for a common appurtenant to a manor ; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors (5). 6. Lastly (6), we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal (7). CHAPTER XVIII. IV. OF TITLE BY FORFEITURE (1). FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained. Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemesnors. 2. By alienation contrary to law. 3. By non-representation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy. I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures proportioned to the several offences, have been hinted at in the preceding book (a); but it will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony (2). 3. [268] Misprision of treason. 4. Praemunire. *5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusancy, or non-observance of certain laws enacted in restraint of papists (3). But at what time they severally (a) Book I. pag. 299, (5) 1 Saund. 346. supra note. (6) Another rule may be added (viz.) that a person ought not to prescribe for that which is of common right, and which the law gives. Willes R. 268. Bac. Ab. Common, A. (7) As to the extinguishment of prescription by unity of seisin, and when to claim an easement by grant, see ante 35. note 28. (1) See in general, Com. Dig. Forfeiture; Bac. Ab. ib.; Vin. Ab. Forfeiture; Cruise Dig. index, Forfeiture. (2) See the alteration in the law as to forfeiture, ante 251. note 14. (3) But the statutes of recusancy are now repealed by 31 Geo. III. c. 32. provided papists take the oath prescribed therein, ante 257. n. 17. |