.P 258
The RIGHTS of THINGS.
BOOK II.
Ch. 16.

CHAPTER THE SIXTEENTH.

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking poffeffion of thofe things, which before belonged to nobody. This, as we have feen^a, is the true ground and foundation of all property, or of holding thofe things in feveralty, which by the law of nature, unqualified by that of fociety, were common to all mankind. But, when once it was agreed that every thing capable of ownerfhip fhould have an owner, natural reafon fuggefted, that he who could firft declare his intention of appropriating any thing to his own ufe, and, in confequence of fuch intention, actually took it into poffeffion, fhould thereby gain the abfolute property of it; according to that rule of the law of nations, recognized by the laws of Rome^b, quod nullius eft, id ratione naturali oxxupanti conceditur.

THIS right of occupancy, fo far as it concerns real property, (for of perfonal chattels I am not in this place to fpeak) hath been confined by the laws of England within a very narrow compafs; and was extended only to a fingle inftance: namely, where a man was tenant pur auter vie, or had an eftate granted to himfelf only (without mentioning his heirs) for the life of another man, and died during the life of ceftuy que vie, or him by whofe life it was holden: in this cafe he, that could firft enter on the land, might lawfully retain the poffeffion fo long as ceftuy que vie lived, by right of occupancy^c.

.{FS}
^a See pag. 3 & 8.
^b Ff. 41. I. 3.
^c Co. Litt. 41.
.{FE}
THIS
.P 259
The RIGHTS of THINGS.
BOOK II.
Ch. 16.
THIS feems to have been recurring to firft principles, and calling in the law of nature to afcertain the property of the land, when left without a legal owner. For it did not revert to the grantor; who had parted with all his intereft, fo long as ceftuy que vie lived: it did not efcheat to the lord of the fee; for all efcheats muft be of the abfolute entire fee, and not of any particular eftate carved out of it; much lefs of fo minute a remnant as this: it did not belong to the grantee; for he was dead: it did not defcend to his heirs; for there were no words of inheritance in the grant: nor could it veft in his executors; for no executors could fucceed to a freehold. Belonging therefore to nobody, like the baereditas jacens of the Romans, the law left it open to be feifed and appropriated by the firft perfon that could enter upon it, during the life of ceftuy que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reverfion of the lands; for the reverfioner hath an equal right with any other man to enter upon the vacant poffeffion, and where the king's title and a fubject's concur, the king's fhall be always preferred: againft the king therefore there could be no prior occupant, becaufe nullu8m tempus occurrit regi^d. And, even in the cafe of a fubject, had the eftate pur auter vie, been granted to a man and his heirs during the life of ceftuy que vie, there the heir might, and ftill may, enter and hold poffeffion, and is called in law a fpecial occupant; as having a fpecial exclufive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the refidue of the eftate granted: though fome have thought him fo called with no very great propriety^e; and that fuch eftate is rather a defcendible freehold. But the title of common occupancy is now reduced almoft to nothing by two ftatutes; the one, 29 Car. II. c. 3. which enacts, that where there is no fpecial occupant, in whom the eftate may veft, the tenant pur auter vie may devife it by will, or it fhall go to the executors and be affets in their hands for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that it fhall veft not only in the

.{FS}
^d Ibid.
^e Vaugh. 201.
.{FE}
I i 2
executors
.P 260
The RIGHTS of THINGS.
BOOK II.
Ch. 16.
executors, but, in cafe the tenant dies inteftate, in the adminiftrators alfo; and go in a courfe of diftribution like a chattel intereft.

BY thefe two ftatutes the title of common occupancy is utterly extinct and abolifhed: though that of fpecial occupancy, by the heir at law, continues to this day; fuch heir being held to fucceed to the anceftor's eftate, not by defcent, for then he muft take an eftate of inheritance, but as an occupant, fpecially marked out and appointed by the original grant. The doctrine of common occupancy may however be ufefully remembered on the following account, among others: that, as by the common law no occupancy could be of incorporeal hereditaments, as ofrents, tithes, advowfons, commons, or the like^f, (becaufe, with refpect to them, there could be no actual entry made, or corporal feifin had; and therefore by the death of the grantee pur auter vie a grant of fuch hereditaments was entirely determined^g) fo now, I apprehend, notwithftanding thefe ftatutes, fuch grant would not be devifable, nor veft in the executors, nor go in a courfe of diftribution. For the ftatutes muft not be conftrued fo as to create any new eftate, or to keep that alive which by the common law was determined, and thereby to defer the grantor's reverfion; but merely to difpofe of an intereft in being, to which by law there was no owner, and which therefore was left open to the firft occupant. When there is a refidue left, the ftatutes give it to the executors, &c, inftead of the firft occupant; but they will not create a refidue, on purpofe to give it the executors. They only meant to provide an appointed inftead of a cafual, a certain inftead of an uncertain, owner, of lands which before were nobody's; and thereby to fupply this cafus omiffus, and render the difpofition of law in all refpects entirely uniform: this being the only inftance wherein a title to a real eftate could ever be acquired by occupancy.

.{FS}
^f Co. Litt. 41.
^g Vaugh. 201.
.{FE}
THIS
.P 261
The RIGHTS of THINGS.
BOOK II.
Ch. 16.
THIS, I fay, was the only inftance; for I think there can be no other cafe devifed, wherein there is not fome owner of the land appointed by the law. In the cafe of a fole corporation, as a parfon of a church, when he dies or refigns, though there is no actual owner of the land till a fucceffor be appointed, yet there is a legal, potential ownerfhip, fubfifting in contemplation of law; and when the fucceffor is appointed, his appointment fhall have a retrofpect and relation backwards, fo as to entitle him to all the profits from the inftant that the vacancy commenced. And, in all other inftances, when the tenant dies inteftate, and no other owner of the lands is to be found in the common courfe of defcents, there the law vefts an ownerfhip in the king, or in the fubordinate lord of the fee, by efcheat.

So alfo in fome cafes, where the laws of other nations give a right by occupancy, as in lands newly created, by the rifing of an ifland in a river, or by the alluvion or dereliction of the fea; in thefe inftances the law of England affigns them an immediate owner. For Bracton tells us^h, that if an ifland arife in the middle of a river, it belongs in common to thofe who have lands on each fide thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the neareft fhore: which is agreeable to, and probably copied from, the civil lawⁱ. Yet this feems only to be reafonable, where the foil of the river is equally divided between the owners of the oppofite fhores: for if the whole foil is the freehold of any one man, as it muft be whenever a feveral fifhery is claimed^k, there it feems juft (and fo is the ufual practice) that the eyotts or little iflands, arifing in any part of the river, fhall be the property of him who owneth the pifcary and the foil. However, in cafe a new ifland rife in the fea, though the civil law gives it to the firft occupant^l, yet ours gives it to the king^m. And as to lands gained from the fea, either by allu-

.{FS}
^h l. 2. c. 2.
ⁱ Inft. 2. I. 22.
^k Salk. 637.
^l Inft. 2. I. 18.
^m Bract. l. 2. c. 2. Callis of fewers. 22.
.{FE}
vion,
.P 262
The RIGHTS of THINGS.
BOOK II.
Ch. 16.
vion, by the wafhing up of fand and earth, fo as in time to make terra firma; or by dereliction, as when the fea fhrinks back below the ufual watermark; in thefe cafes the law is held to be, that if this gain be by little and little, by fmall and imperceptible degrees, if fhall go to the owner of the land adjoining. For de minimis non curat lex: and, befides, thefe owners being often lofers by the breaking in of the fea, or at charges to keep it out, this poffible gain is therefore a reciprocal confideration for fuch poffible charge of lofs. But, if the alluvion or dereliction be fudden and confiderable, in this cafe it belongs to the king: for, as the king is lord of the fea, and fo owner of the foil while it is covered with water, it is but reafonable he fhould have the foil, when the water has left it dryⁿ. 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 fubject's property. In the fame manner if a river, running between two lordfhips, by degrees gains upon the one, and thereby leaves the other dry; the owner who lofes his ground thus imperceptibly has no remedy: but if the courfe of the river be changed by a fudden and violent flood, or other hafty means, and thereby a man lofes his ground, he fhall have what the river has left in any other place, as a recompence for this fudden lofs^o. And this law of alluvions and derelictions, with regard to rivers, is nearly the fame in the imperial law^p; from whence indeed thofe our determinations feem to have been drawn and adopted: but we ourfelves, as iflanders, have applied them to marine increafes; and have given our fovereign the prerogative he enjoys, as well upon the particular reafons before-mentioned, as upon this other general ground of prerogative, which was formerly remarked^q, that whatever hath no other owner is vefted by law in the king.

.{FS}
ⁿ Callis. 24. 28.
^o Callis. 28.
^p Inft. 2. I. 20, 21, 22, 23, 24.
^q See Vol. I. pag. 289.
.{FE}