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76, ?? 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.)
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 ana his ancestors, or in a man and those whose estate he hath, page 264.
The right prescribed for in a man and his ancestors must here be a right in gross, as that in a que estate is appendant or appurtenant. Blackstone thus clearly recognizes the existence of incorporeal hereditaments
in gross, as he does in the specific instances of commons (2 Com. 34), and other such rights. He does, indeed, say of the grant of a way to a single person, that it is "confined to the grantee alone: it dies with the person; and he cannot assign over his right to any other." (2 Com. 35.) But he does not deny the possibility of a right of way in gross in fee, which is the necessary result of what is said above. It was also the recognized law of his time.
But of late, since it has become usual to treat of these rights as easements or servitudes, a doubt has arisen whether these can be held in gross for more than a single life. (Washburn on Easements, pp. 10, *29.) Yet the early books certainly do not distinguish thus. Those that refuse them the character of fees, also refuse them the character of freeholds, or life estates. They were denied the character of rights to land altogether, and held mere contracts, e. g., Jenkins, Century, i. case 30, p. 7. Of a way in gross, it has been often adjudged by the sages of the law that an assize doth not lie. . . . But covenant lies against the grantor upon his deed, if he disturbs, and the grantee has a deed of such grant. An assize does not lie; for such grantee has no freehold. To same effect, case 37, page 20. Nor will an assize of nuisance lie, though B (the grantee of the way), purchase an house or land near the said way, for it was in gross from the beginning. By the justices of assize and justices of the common bench. Jenkins cites unprinted cases of 19 and 21 Edw. III.; Fitzh. Nuisance, 2, 3; 2 Ass. pl. 1; 27 Hen. VIII. 72; F. N. B. 184; 46 Edw. III. 24, most of which sustain .him. A man shall not have an assize of nuisance of a way, if it be not appendant or appurtenant to his freehold. (F.N. B. 184, E.) And the same reason "because he hath no freehold" is given for the rule that an action of the case, not an assize, lies for a nuisance to the house of a termor for years. (F. N. B. 185.) So,
also, in recent books, there seems to be a disposition to deny the existence of easements in gross, or to treat them as mere licenses, which are of course not inheritable, and not interests in land. If this were merely denying them the character of easements, it would be logical for that term is always now used as the converse of servitudes, and servitudes in our law have always been held to require a dominant estate as well as a servient. This, however, would be merely a question of names. But the recent books go further, and deny their existence in the form of incorporeal hereditaments. Thus, for example, Mr. Digby says: "Probably they do not possess the principal characteristic of an easement properly so called-the capacity of being asserted as against third parties. They are rights in personam, not rights in rem. (See Hill v. Tupper, 2 Hurl. & C. 121.) There is no question, however, that the law recognizes profits 'in gross,' i. e., not appurtenant to lands, as rights in rem." (Hist. of Law of Real Property, p. 130, n. 1. And see Washburn on Easements, p. 79.) But if profits a prendre can be owned in fee, on what principle shall other incorporeal hereditaments be deprived of that character which is their essence? A right of way, or of water-course descended to a man from his ancestors, is no more impossible now than a century ago. That they are not so likely to occur "in gross " as in the form of easements proper, "pleadable in a que estate," may well be admitted. But the mere calling of them easements cannot change the law respecting them.
(52) No prescription can give a title to lands and other corporeal substances, page 264.
For a great while this difference in the effect of prescription upon corporeal and incorporeal hereditaments was regarded as based in their very nature, and confined its operation to a merely negative one, or defense,
in the case of lands. Only of late has it been held that enjoyment for the statutory period gave a positive title on which land could be recovered: not a mere plea by which one in actual possession could defend himself. (School District v. Benson, 31 Me. 384; and see note 50, ante page 416.) But now that the change has been accomplished, it may be permissible to ask whether there was ever any real difference in principle between the two kinds of property. It is certain that none was known in the thirteenth and fourteenth centuries. The early common law recognized a prescriptive title to both alike. (Bracton, lib. 2, ch. 22. fol. 51, 52; Britton, ch. 47, of Houard's ed.; Book 2, c. 16, par. 1 of Nichol's ed.; fol. 121.)
The earliest positive limitations applied to land and incorporeal rights alike. They recognized the principle of prescription as to land, by fixing the dates within which plaintiff must show possession. The "time out of mind, ," or of prescription, in the English law, seems originally to have been fixed by the king and council from time to time. We find several different dates mentioned in early books, and Glanvil, speaking of the limit of an assize of novel disseisin, says: Infra assisam Domini regis, id est, infra tempus a D. R. de consilio procerum ad hoc constitutum. (Lib. 13, c. 32.) By the stat. Merton, c. 8, the limit of a writ of right was reduced from the time of Hen. I. (1100) to that of Hen. II. (1154), and mort d'ancestor, entry, and others to a shorter period. In Bracton's time it was within the discretion of the court (lib. 2, c. 22, 21, fol. 51 b), non definitur a jure sed ex justitiariorum discretione. And this he expressly states as applicable to all cases of prescriptive title. By the stat. Westm. I. c. 39, it was provided that because the former limits were long past, no writ of right should be brought on the seisin of an ancestor before "the time of King Richard, uncle of the King Henry, father of the king who now is."
2 BLACKST. - 36.