Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of Title by Occupancy

OCCUPANCY is the taking possession of those things, which before belonged to nobody. This, as we have seen,1 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, recognized by the laws of Rome,2 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) has 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 himself 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 held: 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.3

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; who 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 seized 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 has 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 regi.4 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;5 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, that where there is no special occupant, in whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors and be assets in their hands for payment of debts: the other that of 14
Geo. II. c. 20. which enacts, that it shall vest not only in the executors, but, in case the tenant dies intestate, in the administrators also; and 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. The doctrine of common occupancy may however be usefully remembered on the following account, among others: that, as by the common law no occupancy could be of incorporeal hereditaments, as of rents, tithes, advowsons, commons, or the like,6 (because, with respect to them, there could be no actual entry made, or corporal seizin had; and therefore by the death of the grantee pur auter vie a grant of such hereditaments was entirely determined7) so now, I apprehend, notwithstanding these statutes, such grant would not be devisable, nor vest in the executors, nor go in a course of distribution. For the statutes must not be construed so as to create any new estate, or to 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 which therefore was left open to the first occupant. When there is a residue left, the statutes give it to the executors, etc, instead of the first occupant; but they will not create a residue, on purpose to give it the executors. 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 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 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 a river, or by the alluvion or dereliction of the sea; in these instances the law of England assigns them an immediate owner. For Bracton tells us,8 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.9 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 must be whenever a several fishery is claimed,10 there it seems just (and so is the usual practice) that the eyotts or little islands, arising in any part of the river, shall be the property of him who owns 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,11 yet ours gives it to the king.12 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, if 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 of 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.13 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, he shall have what the river has left in any other place, as a recompense for this sudden loss.14 And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law;15 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,16 that whatever has no other owner is vested by law in the king.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    See pag. 3 & 8.
     2.    Ff. 41. I. 3.
     3.    Co. Litt. 41.
     4.    Ibid.
     5.    Vaugh. 201.
     6.    Co. Litt. 41.
     7.    Vaugh. 201.
     8.    l. 2. c. 2.
     9.    Inst. 2. I. 22.
   10.    Salk. 637.
   11.    Inst. 2. I. 18.
   12.    Bract. l. 2. c. 2. Callis of sewers. 22.
   13.    Callis. 24. 28.
   14.    Callis. 28.
   15.    Inst. 2. I. 20, 21, 22, 23, 24.
   16.    See Vol. I. pag. 289.