presumption, they belong to they belong to the sovereign, yet when the interest in the soil has been acquired by grant from the government by an individual, an island which may happen to be formed within the limits of the private ownership, will be his.1 "Of common right, and primâ facie," says Hale, "it is true that they (islands) belong to the crown, but where the interest of such districtus maris, or arm of the sea, or creek, or haven, doth belong to a subject, either by charter or prescription, the islands which happen within the precincts of such private propriety of a subject will belong to the subject, according to the limits and extent of such propriety." "

2

So if the water should divide itself, and unite in another place, and thus environ a portion of upland, and so reduce it into the form of an island, the land so environed continues to be the property of the former owner. By the erection of Fairmount dam, in the river Schuylkill, a rock that had formerly been private property, became surrounded by water, and

3

1 2 Bl. Com. 251; Hale, De Jure Maris, Harg. Tracts, 17; Callis on Sewers, 45.

2 De Jure Maris, Part 1. Chap. vi. It was lately stated in a newspaper, that for a long series of years, an island has been gradually formed between Wittonness and Oysterness, in the Humber, and that its present extent is about 300 acres. In conformity with the law contained in the above extract from Lord Hale, the property of this island seems to have been admitted to be in the crown. 28 Lond. Law Mag.

339.

3 Ib.

was dry only at low tide, and a few hours before and after. It was held, that it still remained private property, and hence was not common for all persons to stand upon, and fish with hoop nets. There was no difference between a rock under these circumstances, and land so environed as to become an island.1

Avulsion is where, by the immediate and manifest force and violence of the water, the soil is taken suddenly from one man's estate, and carried to another's, and hereby a new property is constituted only by acquiescence. For it is regarded as the property of the first owner, unless it shall have continued on the other's land for so long a period, that it has coalesced and become incorporated with the soil. And the Roman law provided, that if the impetuosity of a river should sever a part of your estate and adjoin it to that of your neighbor, it is certain that such part will still continue yours.3

2

1 Commonwealth v. Shaw, 14 S. & Rawle (Penn.) R. 9.

2 Bract. 221; Callis, 21, 24; 2 Bl. Com. 262.

3 Coop. Just. L. 2, t. 1.

CHAPTER IX.

CUSTOM AND PRESCRIPTION.

REFERENCE has several times been made in the preceding pages to rights which may be acquired in tide water, and in the soil and shores of the same, by custom and prescription. In Carter v. Murcot,' it was said by Lord Mansfield, that a man may have an exclusive privilege of fishing in an arm of the sea, though such a right is not to be presumed; and Yates, J., in the same case, observed, that he knew a case to fail where an exclusive right was claimed, because no prescription was proved. So, in this country, in Gould v. James, it was held, that if any one can show an exclusive right of fishery, by prescription, he may then exercise it; though every presumption is against him, unless he can establish his prescriptive right by satisfactory proof. Parker, C. J., in Commonwealth v. Charlestown,3 says,

By the common law it is clear, that all arms of the sea, &c., where the tide ebbs and flows, are the pro

1 Carter v. Murcot, 4 Burr. R. 2162.

2 Gould v. James, 6 Cowen (N. Y.) R. 376.

3 Commonwealth v. Charlestown, 1 Pick. (Mass.) R. 180; Parsons, C. J., lays down the same doctrine in Storer v. Freeman, 6 Mass. R. 435.

perty of the sovereign, unless appropriated by some subject by virtue of a grant or prescriptive right, which is founded on the supposition of a grant." And in Keen v. Stetson,' it is laid down, that — "it is true, individuals may acquire the right by grant or prescription, to occupy flats with wharves and stores, and landing places," they say, in some of the towns in that state (Massachusetts) have existed by immemorial usage, on the banks, and perhaps on the shores, of creeks and rivers." So the public may be excluded, (as fully appears by the treatise of Lord Hale, and by the opinions of the judges in Blundell v. Catterall at the end of this volume,) by immemorial custom.2

Though both custom and prescription are created by usage, yet there is between them this difference: viz. the former is a local usage, that is, one which relates to a particular place; while prescription is merely a personal usage, as that A. and his ancestors, or those whose estate he has, have been used, time out of mind, to enjoy a certain advantage or privilege. They both originally derive their obli

3

1 Keen v. Stetson, 5 Pick. (Mass.) R. 492. 2 See Blundell v. Catterall, App. p. i.

31 Bl. Com. 75; 2 Ib. 263, Co. Litt. 110, 113. Custom is defined by Mr. Greenleaf, as "unwritten law, established by common consent and uniform practice, from time immemorial; and it is local, having respect to the inhabitants of a particular place or district. It differs from prescription, in this, that prescription is a personal right, belonging to one or few persons, by particular designation, as for example,

gation from the consent, either express or implied, of the parties who are bound by them; and the ordinary forms of pleading a right by custom and a prescriptive right are the same. The same rights and privileges which may be claimed as a custom, may also be claimed by prescription. An easement upon another's land, such as a right of way to the shore,' a right of drawing seines, a right to tow on the banks of navigable rivers,3 may be sustained as a custom, or as a prescription."

2

But although there are rights which may be holden by virtue of a custom, can be holden by virtue of prescription, it is not a rule vice versa. A distinction is taken between a profit taken from the soil of another and an easement upon the soil. Profits, or rights a prendre, as the rights of taking herbage by cattle, of taking turves, peat or coal, cannot be alleged as in the inhabitants of a town or district by virtue of a local custom. Such a claim must be sustained as a prescription, by an individual though

the owners of a certain parcel of land." 2 Greenl. on Ev. § 248. And see Cortelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357.

1 See ante, p. 189.

2 See ante, p. 193.

3 See ante, p. 176.

See a learned opinion of the court in Perley v. Langley, 7 N. Hamp. R. 233; and see also the opinions of the several judges in Carson v. Blazer, 2 Binn. (Penn.) R. 475; and in Post v. Pearsall, 22 Wend. (N. Y.) R. 425; Cortelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357.