Of common oc. cupancy abolished; but that of special occupancy continues. occupancy by the heir-at-law continues; 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; 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 autre vie, a grant of such hereditaments was entirely determined, so now, 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 (b). For these statutes must not be construed so as to create any new estate, or keep alive that, 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. When there is a residue left, the statutes give it to the executors and administrators, instead of the first occupant; but they will not create a residue on purpose to give it to either. In case a new island rise in the sea, though the civil law gives it to the first occupant, yet ours gives it to Brac. 1, 2. c. 2. the king. 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 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, 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 Callis, 24, 28. should have the soil when the water has left it dry. Inst. 2, 1, 18. Callis of sewers, 22. As to lands gained from the sea by alluvion. 1 Roll. Abr. 170. Dyer, 326. If a river running between two lordships by degrees gains special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate. (b) But see now 7 Wm. 4, and 1 Vict. c. 26, s. 6, ante, note (a) to this chapter, which alters the law in this respect, and prescribes the destination of estates pur autre vie, whether corporeal or incorporeal. 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, he shall have what the river has left in any other place, as a recompence for this sudden loss. And this law of alluvions Callis, 228. and derelictions with regard to rivers, is nearly the same in the imperial law, from whence our determinations seem to Inst. 2. 1, 20, have been drawn and adopted. 24. CHAPTER XVII. OF TITLE BY PRESCRIPTION. A third method of acquiring real property by purchase is that of title by by prescription; as when a man can show no other title to prescription. what he claims, than that he and those under whom he claims have immemorially used to enjoy it. (a). Prescription is distinguished from custom in this, that custom is 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 A. and his ancestors, or those whose estate he has, have used time out of mind, to have such an advantage or privilege (b). Distinction between custom and prescrip tion." (a) By 2 & 3 Wm. 4, c. 71, claims to rights of common and other profits, à prendre, are not to be defeated after thirty years' enjoyment, by shewing the commencement, and after sixty years' enjoyment the right is absolute, unless had by consent or agreement, by deed or writing. In claims of rights of way, or other easement, the periods are now twenty years and forty years. A claim to the use of light enjoyed for twenty years is indefeasible, unless shewn to have been by consent, by deed, or writing. The before mentioned periods are to be deemed those next before suits for enforcing claims to which such periods relate. When any land or water upon or from which any such way or watercourse shall have been, or shall be enjoyed or derived, has been, or shall be held under any term of life, or any term of years exceeding three years, the time of the enjoyment of any such way or other matter during such term, shall be excluded in the computation of the period of forty years, in case the claim shall, within three years after the end of such term, be resisted by any person entitled to any reversion expectant on the determination thereof; and see note (c), post, 194. (6) But both to customs and prescriptions these two things are incidents inseparable, viz. possession, or usage and time. Possession must have three qualities; it must be long, continual, and peaceable; "longa continua et pacifica;" for it is said, (Bract. fo. 51, Co. Litt. 113. 4 Rep. 32. All prescription must be either in a man and his ancestors. or in a man and those whose estate he has, which last is called prescribing in a que estate. By 32 Hen. 8, c. 2, it was enacted, that no person should make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession has been within sixty years next, before such prescription made (c). 52), "transferuntur dominia, sine titulo, et traditione, per usucaptionem, scilicet, per longam continuam et pacificam possessionem. Longa, i. e. per spatium temporis per legem definitum, viz. qui excedit memoriam hominum; continuam dico, ita quod non sit legitimè interrupta. Pacificam dico, quia si contentiosa fuerit, idem erit quod prius, si contentio fuerit justa. Ut si verus dominus statim cùm intrusor vel disseisor ingressus fuerit seisinam, nitatur tales viribus repellere, et expellere, licet id quod inceperit perducere non possit ad effectum, dum tamen cum defecerit, diligens sit ad impetrandum et prosequendum. Longus usus nec per vim, nec clam, nec precario," etc; Co. Litt. 114 a. (c) By 2 & 3 Wm. 4, c. 71, the time of prescription is shortened in certain cases; see ante, page 193, note (a). And by 2 & 3 Wm. 4, c. 100, the time of prescription required in claims of modus decimandi, or exemption from or discharge of tithes, is shortened in certain cases, see ante, p. 107, note (ƒ). By 3 & 4 Wm. 4, c. 27, it is enacted, that except where the nature of the provision or the context of the act excludes such construction, the word “land” in the act shall extend to manors, messuages, and all other corporeal hereditaments, and to tithes (other than tithes of a spiritual or elemosynary corporation sole), whether freehold or copyhold, or of any other tenure; and the word "rent" shall extend to hereditaments and to all services and suits for which a distress may be made, and to all annuities and periodical sums of money charged upon land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole); and the person through whom another is said to claim shall mean any person by, through, or by the act of whom the person so claiming became entitled as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, and to any person entitled to an estate to which the person claiming, or person through whom he claims, became entitled by escheat; and the word "person" shall extend to a body corporate, and to a class of creditors, as well as an individual. By s. 2, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or to the person making or bringing the same. But by sections 4 and 5, the rights of remainder men and reversioners are for the purposes of the act deemed to have first accrued in respect of their estate or interest, when the same shall have become an estate or interest in possession. The third section defines when the right shall be deemed to have accrued; in the case of an estate in possession; on dispossession; on abatement or death; on alienation; in case of future estates, and in case of forfeiture or breach of condition. By s. 6, an administrator is to claim as if he obtained the estate without interval after the death of the deceased. By s. 7, in the case of a tenant at will, the right is deemed to have accrued at the end of one year. By s. 9, where rent amounting to 20s. has been wrongfully received under a lease in writing, the right is deemed to have first accrued at the time at which such rent was first so received. By s. 10, a hereditaments Nothing however but incorporeal hereditaments can be claimed Incorporeal by prescription: no prescription can give a title to lands and only can be other corporeal substances. 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 claimed by prescription. mere entry on land is not to be deemed possession. By s. 11, no right can be preserved by continual claim. By s. 12, the possession of one of several coparceners, joint tenants, or tenants in common, is not to be deemed the possession of the others. By s. 13, possession of a younger brother is not to be deemed possession of the heir. By s. 14, an acknowledgment in writing to the person entitled, or his agent, is equivalent to the possession or receipt of rent. By s. 16, persons under legal disabilities, and their representatives, are allowed ten years from the termination of their disabilities or death. But by s. 17, no entry, distress, or action, can be made or brought by them in any case after forty years from the time when the right accrued; and by s. 18, no further time is allowed for a succession of disabilities. By s. 20, when the right to an estate in possession is barred, the right of the same person to future estates is also barred. By s. 21, when tenant in tail is barred, remainder men, whom he might have barred, shall not recover. By s. 22, possession adverse to a tenant in tail shall run on against the remainder men whom he might have barred. By s. 23, where there shall have been possession under an assurance by a tenant in tail, which shall not bar the remainders, they shall be barred at the end of twenty years after the time when the assurance, if effectual, would have barred them. By s. 24, no suit in equity can be brought after the time when the plaintiff, if entitled at law, might have brought an action. By s. 25, in cases of express trust the right shall not be deemed to have accrued until the land or rent shall be conveyed to a purchaser for a valuable consideration; and then only as against such purchaser, and any person claiming through him. In cases of fraud, no time shall run whilst the fraud remains concealed. Mortgagors are to be barred at the end of twenty years from the time when the mortgagee took possession; or from the last written acknowledgment. No lands or rents are recoverable by ecclesiastical or eleemosynary corporations sole, but within two incumbencies and six years or sixty years. No advowson is recoverable but within three incumbencies, or sixty years. Incumbencies after lapse are reckoned within the period, but not incumbencies after promotions to bishopricks. No advowson is recoverable after one hundred years. At the end of the period of limitation the right of the party out of possession is extinguished. Real and mixed actions are abolished, except for dower, quare impedit, and ejectment. No descent, cast, discontinuance, or warranty is to bar a right of entry. Money charged upon land and legacies are to be deemed satisfied at the end of twenty years, if there shall be no interest paid, or acknowledgment in writing in the meantime. No arrears of dower are recoverable for more than six years. No arrears of rent, or interest of money charged upon land or rent, or of any legacy, are recoverable for more than six years. The act is to extend to the spiritual courts. By 7 Wm. 4 and 1 Vict. c. 28, after stating that doubts had been entertained as to the effect of the act of 3 & 4 Wm. 4, c. 27, so far as related to mortgages, it is enacted, that persons entitled to, or claiming under, any mortgage of land, &c., may make an entry, or bring an action at law, or suit in equity, to recover such land, &c. at any time within twenty years next after the last payment of any part of the principal money, or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry, or bring such action or suit in equity, shall have first accrued. Prescription must be laid in the tenant of the fee. It cannot be for a thing not lying in grant. to arise by matter of record. As to the manner of prescrib ing. by intervals, and therefore the right to enjoy them, can depend on nothing else but immemorial usage. A prescription must always be laid in him that is tenant of the fee. A tenant for life or years at will, or a copyholder cannot prescribe by reason 4 Rep. 31, 32. of the imbecility of their estates. 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. 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 Nor for what is grant to have existed. 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 any 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. 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, 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 whatsoFinch, L. 104. ever that lies in grant; not only things that are appurtenant, but also such as may be in gross. 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 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. But if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is made, and be inheritable in the same manner, whether that were acquired by descent or purchase; every accessory following the nature of its principal. Litt. s. 183. The mode of descent of an estate by prescription. |