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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, 1, 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.

Novel disseisin, mort d'ancestor, and other writs had their own limitations by the same statute: but the time of King Richard being the earliest mentioned, this seems to have been accepted as the time of legal memory henceforth for all cases not expressly mentioned in the statutes. (It is worth' our notice that in these early statutes we have provisions for writs sued out between their passage and Pentecost, or the feast of St. John, a year hence, in order that the new limitation might take no one by surprise. Writs during this time might be pleaded as they had been before. The first hint of a limitation by number of years, instead of a fixed date, appears in the Mirror, c. 5, 21, pl. 121. It is abuse to count of so long time whereof none can testify the hearing or seeing, which is not to endure generally above forty years.)

The notion that prescription could not operate on corporeal hereditaments by the common law, found so often in our recent books, was unknown to Littleton, and even to Lord Coke. Littleton says that homage ancestral is so called by reason of the continuance which hath been by title of prescription, in the tenancy, in the blood of the tenant, and also in the seignory in the blood of the lord: and draweth to it warranty, etc. (143.) And Coke says to this: In this example here put there must be a double prescription, both in the blood of the lord and the blood of the tenant; and therefore I think there is little or no land at all at this day holden by homage ancestral. (Co. Litt. 100 b. And see 2 170, fol. 113, 114.) So, also, section 310, fol. 195 a, that tenants in common may be by title of prescription, as of one and his ancestors, or they whose estate he hath : but not joint tenants on account of the survivorship. At the same time it must be said that the examples and authorities quoted by Coke are nearly all of prescrip'tive rights to incorporeal hereditaments, and not of lands. The reason of this is easily seen in the dying

out of homage ancestral. Moreover, all the writs by which land could be recovered were strictly limited to a certain and brief period from the first, and there was no need to rely on a common-law prescription except in that one case. For the plaintiff who claimed an "easement" or incorporeal right appendant to his land had no separate title for it, but must prove his right by acts of exercise; and these to have any weight must extend over a prescriptive period. By the very letter of the law he had to show that he or his ancestor had “taken the esplees," i. e., been in possession within a certain period, which was the same as proving that there was no prescriptive right against him to the land. The very limitation put on his right to recover was the strongest proof that a prescriptive title might be sustained against him.

About the only case in which there has been occasion to adjudicate on plaintiff's title by mere prescription is that of a party holding by such right and dispossessed, so that he must bring ejectment to recover the land. It was laid down by Coke that he could. A title gained by prescription cannot be destroyed by interruption of the possession for ten or twelve years. (Co. Litt. 114 b, quoted Rolle and Viner, Prescription T. 6; citing 28 Ass. 4, and Dyer 114, pl. 61.)

It is therefore inconsistent with all these earlier authorities when Comyn says: So a man cannot make title to land by prescription. (Co. Litt. 114 b; 2 Roll. 264, 1. 3.) This is Prescription B. 2, in Viner, citing Brooke Prescription, 19, and Trespass, 122. Both refer to same case in Y. B. 8 Hen. VI. 16, which is also the source of Coke's statement in Co. Litt. 195 a, Trespass, q. c. f. and defendant pleads that he and those whose estate he has, have held the place in common with plaintiff time out of mind, wherefore he entered. Held, a good plea per totam curiam. Then plaintiff makes a new assignment in other land as well as that, and denies the tenancy in

common; and alleges sole seisin in the other. Defendant takes issue on the former, and pleads not guilty as to the land held in severalty. In the book at large (Mich. pl. 43) there is nothing more than Brooke has abridged-not a word about prescription for the severalty. (S. C. in Fitzh. Barre. 11, as to final plea only.) Co. Litt. 144 b. says on this point only: "Vide, section 313, where a man shall make a title to lands by prescription" (and then speaks of prescription and limitation as all one.) The earliest statement I know that denies the applicability of prescription to land is that of the Doctor and Student, Dial. i, c. 8, cited here by our author in note g. It is stated as one of the maxims of the common law, but no authority is given for it; and it is followed by another maxim that rents, etc., may be recovered by a prescriptive title. The distinction thus made can hardly have great weight when Coke is seen to have been ignorant of it; yet in all probability this was the source from which it was quoted in all later books to the time of Blackstone.

(53) The law allows prescription only to supply the loss of a grant, and therefore every prescription presupposes a grant to have existed, page 265.

The first suggestion of this singular doctrine, by which the effect of time in ripening titles has been almost entirely banished for awhile from the common law, may perhaps be found in a dictum of Sir Francis North, arg. in Potter v. North, Vent. 387, "that nothing may be prescribed for, that cannot at this day be raised by grant." Intended to exclude prescriptive claims to franchises, profits a prendre, etc., it had the effect (perhaps unforeseen), of cutting off like titles to land; although such titles had been relied on in cases of homage ancestral, and in the great majority of actions of right from the earliest days of the common law, and the term was defined in Termes de la Ley (one of the best author

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