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scribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be [265] laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe, whose estates commenced within the remembrance of man. 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. As, if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with it's appurtenances, to him the said tenant for life. 3. * 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 grant to have existed.* [See note 53, page 424.] Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription. 4. A fourth rule is, that 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 h 4 Rep. 31, 32.

i 1 Ventr. 387.

9 Ninth edition inserts, " for anything."

8 Previously, “a."

**Quoted, 76 Ill. 242. Cited, 61 Pa. St. 36.

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. 5. Among things incorporeal, which may be claimed by prescription, 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 [266] is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim anything 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 anything whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.1 Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that 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, properly speaking, 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 **Quoted, 19 Me. 182.

k Co. Litt. 114.

1 Litt. 183. Finch. L. 104.

and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory followeth the nature of it's principal.


(50) When a man can show no other title to what he claims, than that he and those under whom he claims have immemorially used to enjoy it, page 263.

Prescription and limitation, strictly speaking, in the language of the older books differ between themselves in this. Prescription applies only to incorporeal hereditaments, and by common law furnishes a positive title. Limitation refers to corporeal hereditaments; is based entirely on the statutes; and does not furnish a positive title but only a negative one. The statute of limitations in respect to lands operates as an extinguishment of the remedy of the one, though not a gift of the estate to the other. Whereas the enjoyment of an incorporeal hereditament for the requisite period of time, raises a conclusive presumption of a right or a grant, as the case may be. (3 Washburn, p. 52, citing, Davenport v. Tyrrel, 1 Black. W. 575; Tyler v. Wilkinson, 4 Mason, 402; 2 Greenleaf's Evidence, 579.) But these distinctions have lost their importance. Our statutes of limitation apply to both corporeal and incorporeal hereditaments alike. The abolition of forms of action has taken away the importance of the distinction between positive and negative titles. Even so long ago as when Cruise's Digest was written, the title prescription was made to cover the acquisition of land by possession or limitation. (See tit. 31, ch. 2; also ch. 1, ¿? 5, 6. And as to the analogy between them, see Hilliard, ch.

76, 22 1, 4.) Wharton on Conveyancing, tract 4, ch. 3, pp. 587, 588, uses prescription in the same way, but distinguishes positive prescription or prescription proper from negative prescription or the effect of the statutes of limitations.

Title by possession, then, may be divided into three branches, for the purpose of retaining the old and familiar distinctions.

First. Title by occupancy, or such rights as accrue from the commencement of possession, as to which see note 48 to preceding chapter.

Second. Title by negative prescription, or such title as accrues when all conflicting rights are cut off by statute: now confined to the case of statutory limitations upon actions to recover money and the like.

Third. Positive prescription, where the title itself is directly affirmed.

An incidental advantage of this arrangement will be, that it enables us to place properly a class of questions which have not been satisfactorily classified before. These relate to the rights of occupying claimants, sometimes called betterment rights. They resemble our first class in this, that they accrue from the beginning of the occupancy, but they usually attach to such titles as require a certain period of time to become perfect. And in this fact we have another argument in favor of uniting all these titles under one head. As to occupying claimants, see a valuable account of the origin and growth of the doctrine by Judge Dillon, in Parsons v. Moses, 16 Iowa, 440.

But the distinction, as to all specific property at least, made between the second and third classes, seems to have only a historical value. A title by statute of limitation is now held to be as positive as one by any other mode of acquisition.

"A legal title is equally valid when once acquired, whether it be disseisin or by deed: it will vest the

fee-simple, although the modes of proof adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseisin, any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof; and a continued disseisin for twenty years [i. e., for whatever term the statute of the state may require], is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence. An open, notorious, exclusive, and adverse possession for twenty years operates to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it." (Per Wells, J., in School District v. Benson, 31 Me. 384, quoted in 3 Washburn on Real Property, 145, [*514], and see, also, authorities cited in note 1, on page 146; Bowen v. Preston, 48 Ind. 367; 2 Cent. L. J. 251, 1875.)

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But such a title does not cut off the right of the widow of disseisee to dower, provided it is not begun until after the inchoate right has accrued. An adverse occupation of the premises during her husband's life will not affect her rights. The statute does not begin to run against her until his death. (2 Scribner on Dower, 542; May v. Fletcher, 40 Ind. 575; Bowen v. Preston, supra.) As to the effect of a change in the statute between the conveyance and death, see Strong v. Clem, 12 Ind. 37; Haun v. Meyers, 29 Ind. 469; and note 34, ante, page 233.

(51) All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath, page 264.

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