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A third method of acquiring real property by purchase is that by prescription; as when a man can shew no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it.* [See note 50, page 416.] Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.a At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then shew, what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person: such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege. As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation (which is held to be a lawful usage); this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the [264] tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this a See Vol. I. pag. 75, etc.

b Co. Litt. 113.

c 1 Lev. 176.

8 Previously spelt, "enquired." *Cited, 2 Duvai, 458; 47 Ark. 70.

is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath d* [see note 51, page 418]: which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it has been suspended for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made.'


Secondly, as to the several species of things which may, or may not, be prescribed for: we may in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, etc.; but that † no prescription can give a title to lands, and other corporeal substances † [see note 52, page 420], of which more certain evidence may be had. For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to pred 4 Rep. 32.

e Co. Litt. 113.

f This title, of prescription, was well known in the Roman law by the name of usucapio (Ff. 41. 3. 3.); so called, because a man, that gains a title by prescription, may be said usu rem capere.

g Dr. & St. dial. 1.c. 8. Finch. 132.

9 Ninth edition reads, " a man shall not."

*Cited, 45 Iowa, 142.

+-+ Quoted, 19 Me. 182.

* Cited, 2 Johns. 362; 3 Am. Dec. 441; 26 Tex. 42; 61 Pa. St. 39.

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,

1 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. 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 & 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, 22 5, 6. And as to the analogy between them, see Hilliard, ch.

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