CHAPTER THE SIXTEENTH.

OF TITLE BY OCCUPANCY.

OCCUPANCY is the taking possession of those things, which before belonged to nobody. This as we have seen, is the true ground and foundation of all 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 was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he who could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the absolute property of it; according to that rule of the law of nations, recognised by the laws of Rome, quod nullius est, id ratione naturali occupanti conceditur.

THIS right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to speak,) hath been confined by the laws of England within a very narrow compass; and was extended only to a single instance: namely, where a man was tenant pur auter vie, or had an estate granted to him. self only (without mentioning his heirs) for the life of another man, and died during the life of cestuy que vie, or him by whose life it was holden: in this case he, that could first enter on the land, might lawfully retain the possession so long as cestuy que vie lived, by right of occupancy.

a See pag. 3 and 8.

Ff. 41. 1. 3.

c Co. Litt. 41.

:

d

THIS seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not revert to the grantor, though it formerly 4 was supposed so to do; for he had parted with all his interest, so long as cestuy que vie lived it did not escheat to the lord of the fee; for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it: much less of so minute a remnant as this: it did not belong to the grantee; for he was dead: it did not descend to his heirs; for there were no words of inheritance in the grant: nor could it vest in his executors; for no executors could succeed to a freehold. Belonging therefore to nobody, like the haereditas jacens of the Romans, the law left it open to be seised and appropriated by the first person that could enter upon it, during the life of cestuy que vie, under the name of an occupant. But there' was no right of occupancy allowed, where the king had the reversion of the lands; for the reversioner hath an equal right with any other man to enter upon the vacant possession, and where the king's title and a subject's concur, the king's shall be always preferred: against the king therefore there could be no prior occupant, because nullum tempus occurrit regie. And, even in the case of a subject, had the estate pur auter vie been granted to a man and his heirs during the life of cestuy que vie, there the heir might, and still may enter and hold possession, and is called in law a special occupant: as having a special exclusive right, by the terms of the original grant, to enter upon and occupy this haereditas jacens, during the residue of the estate granted: though some have thought him so called with no very great propriety f; and that such estate is rather a descendible freehold. But the title of common occupancy is now reduced almost to nothing by two statutes: the one 29 Car. II. c. 3. which enacts (according to the ancient rule of law s) that where there is no special

d Bract. 1. 2. c. 9. 1. 4. tr. 3. c. 9. sec. 4. Flet. 13. e. 12. sec. 6. 1. 5. e. 5. sec. 15.

f Vaugh. 201;

g Bract. ibid. Flet, ibid.

e Co, Litt. 41.

occupant (1), in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors or administrators and be assets in their hands [260] for payment of debts: the other that of 14 Geo. II. c. 20. which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel interest.

By these two statutes the title of common occupancy is utterly extinct and abolished: though that of special occupancy by the heir at law, continues to this day; 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, as of rents, tithes, advowsons, commons, or the like 8, (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 auter vie a grant of such hereditaments was entirely determined,) so now, I apprehend, 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. For these statutes must not be construed so as to create any new estate, or keep that alive 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

g Co. Litt. 41. Vaugh. 201.

(1) The meaning of the statute seems to be this, that every estate pur auter vie, whether there is a special occupant, or not, may be'devised like other estates in land, by a will attested by three witnesses.

If not devised, and there is a special occupant, then it is assets by descent in the hands of the heir; if there is no special occupant, then it passes like personal property to executors and administrators, and shall be assets in their hands.

which therefore was left open to the first occupant (2). 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. They only meant to provide an appointed instead of a casual, a certain instead of an uncertain, owner of lands which before were nobody's; and thereby to supply this casus omissus, and render the disposition of law in all respects entirely uniform: this being the only instance wherein a title to a real estate could ever be acquired by occupancy.

THIS, I say, was the only instance; for I think there [261] can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be:

h But see now the statute 5 Geo. III. c. 17. which makes leases for one, two, or three Ilves by ecclesiastical persons or any eleemo synary corporation of tithes or other incor

poreal hereditaments, as good and effectual to all intents and purposes as leases of corpo real possessions.

(2) Lord-keeper Harcourt has declared, there is no difference since the 29 Car. II. c. 3. between a grant of corporeal and incorporeal hereditaments pur auter vie; for by that statute every estate pur auter vie is made devisable, and if not devised, it shall be assets in the hands of the heir, if limited to the heir; if not limited to the heir, it shall go to the executors or administrators of the grantee, and be assets in their hands; and the statute in the case of rents and other incorporeal here. ditaments, does not enlarge, but only preserve the estate of the grantee. 3 P. Wms. 264. In p. 113, ante, it is said, that an estate pur auter vie cannot be entailed; yet if such an estate be limited to A in tail, with remainder to B, these limitations are designations of the persons who shall take as special occupants; but any alienation of the quasi tenant in tail will bar the interest of him in remainder. See 3 Cox P. Wms. 266. and 6 T. R. 293. where it appears to have been the opinion of lord Northington and lord Kenyon that the tenant in tail of an estate pur auter die may bar the remainders over by his will alone.

appointed, yet there is a legal, potential ownership, subsisting in contemplation of law; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant 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 dere liction of the waters; in these instances the law of England assigns them an immediate owner. For Bracton tells us, 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 lawk. 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, 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". And as to lands gained [262] 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,

i l. 2. c. 2.

k Inst. 2. 1. 22.

1 Salk. 637. See pag. 39.

m Inst. 2. 1. 18.

u Bract. I. 2. c. 2. Callis of sewers, 22.