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', 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 ", yet ours gives it to the king". (2) And as to lands gained from the sea, either by alluvion, by [262] 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 owner of the land adjoining. 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". 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 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

Salk.637.

See pag.39.

m Inst. 2. 1. 22.

n Bract. 1.2. c. 2. Callis of sewers, 22.

• Roll. Abr. 170. Dyer, 326.
P Callis, 24. 28.

(2) Bracton, in the passage cited, gives it to the first occupant, not to the king, adopting the very words of the institutes. Callis's argument is, that the sea in property, possession, and profit, tam in aqua quam in solo, belongs to the king in the right of his crown, and, therefore, that the ground which was his when it was covered with waters, is his also when the waters have left it. Lect. 1. p. 44.

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; from whence, indeed, these 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, that whatever hath no other owner is vested by law in the king. (3)

Callis, 28.

r Inst. 2. 1. 20, 21, 22, 23, 24.

See Vol. I. pag.298.

(3) See the cases of Blundell v. Catterall, 5 B. & A. 268., and the King v. Lord Yarborough, 2 B & C.91.; in the first of which the general property in the sea shore, both as to its nature and in whom vested, was much considered; and the latter of which turned upon the doctrine of accretion by alluvion of the sea.

Upon the general principle of first occupancy it is that, if A has appropriated to himself, and thereby acquired a right to a certain part of a stream for the use of his mill, and B subsequently builds a mill lower down, and occupies the remaining portion of the water, A cannot now divert any portion of that remainder from B: both rights are not only acquired by occupancy, but limited by it also. Bealey v. Shaw, 6 East, 208.

CHAPTER THE SEVENTEENTH.

OF TITLE BY PRESCRIPTION.

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. 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 any 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. As for example; if there be a 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 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 tenant, who is seised [264] of the manor of Dale in fee, alleges that he and his ancestors,

C

or all those whose estate he hath in the said manor, have

a See Vol. I. pag.75, &c.

b Co.Litt. 113.

1 Lev. 176.

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 : 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 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'.

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. For a man shall not be said to prescribe, that he and his ancestors have immemorially 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

d 4 Rep. 32.

Co. Litt. 113.

f This title, of prescription, was well known in the Roman law by the name of usucapio, (Ff. 41. 3. 3.) so called be

cause a man, that gains a title by prescription, may be said usu rem capere. (1)

Dr. & St. dial. 1. c.8.

Finch. 132.

(1) The usucapio of the Roman law in its objects seems to have differed from the prescription of the English law; for the rule is laid down Ff. xli. T. 3. 2., that corporeal hereditaments and not incorporeal, may be acquired by it. Usu-capionem recipiunt maximè res corporales — incorporales, res traditionem, et usu capionem non recipere manifestum est.

therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for [265] years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates". For, as prescription is usage beyond time of memory, 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 demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot 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. 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'. 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 *. (2) 5.

* Co. Litt. 114.

(2) The reason for this distinction is not very satisfactory; though the forfeiture must be matter of record, there seems no ground why the rightto receive that forfeiture might not be claimed by prescription: at all events there is some inconsistency, for a man may prescribe for a court leet which is a court of record, as well as for a county palatine, and by reason thereof to have the forfeitures in question. Co. Litt 114. b.