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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. (2 143.) 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 prescriptive 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
ities for the real meaning of early law terms), in words ́ that left no doubt of its applicability to all hereditaments alike. Blackstone's successor, Wooddesson, finished the work (see his Institutes, II. 34, 161), by stating as an assured fact that all prescriptive rights came in under this fiction, and that this was the reason why titles to land (as lying in livery) could not be so established.
Some of the continental writers deny that prescription was known to the Germanic law as a source of title to property of any kind. Using the distinction familiar to civilians, they limit it to extinctive (negative) as opposed to acquisitive (affirmative) prescription. (G. Phillips, Einleitung, 1, 22 67, 88, pp. 436, 541; Eichhorn, Einleitung, 176; St. u. R. G. ii. 357; Mittermaier, Graudsatze, ?163.) Eichhorn thinks (2357, n. e) that the passages, Sachs. Landr. i. 28, 29, and Leges et Statuta fam. S. Petri, speak only of extinctive prescription.
They admit, however, that under the influence of Roman law, both kinds are now recognized; and know nothing of the difference between corporeal and incorporeal hereditaments. (Eichhorn, 2 564.)
Prescription was not first introduced into English law by the fiction of a lost grant. The limitation of actions was the subject of regulation very early, even before the stat. Westm. I. c. 39, which fixed the time of legal memory at 1 Ric. I. It was recognized in Britton (lib. 2, c. 16, par. 1, fol. 121), and in Termes de la Ley (sub voce, p. 458), without any limitation to incorporeal rights. (See, also, Bracton, fol. 51; Littleton, ? 170; Co. Litt. fol. 113; 2 Wms. Saund. 175 a, and note 52, ante.)
Neither Rolle nor Viner, whose great digests contained all that they supposed to be law in their time— the middle of the seventeenth century for one, that of the eighteenth for the other-knew anything of the origin of prescription in lost grants. Their entire discussion of the subject is inconsistent with any such
theory: and this is of more weight than their omission to state it. But there is a long note in Viner, Prescription M., where, it would seem, any writer who had ever heard of the doctrine could hardly fail to mention it. The term of prescription is there mentioned as being the same in incorporeal hereditaments and in a writ of right, owing to the absence of statutory changes in both cases. He mentions the difficulty produced by proof of deeds, etc., inconsistent with the prescription in the long interval from 1 Ric. I., and gives us an example of one who showed a deed recognizing the easement during that reign. Objection was made that it was after the time, and he turned this by saying that he offered the deed only as proof of user, not as the source of title. The annotator also states the important fact, that it was customary in his time to allow juries to find a prescription within the period of statutory limitation (sixty years), or even within their own memories, unless there were some conflicting evidence.
This brings to the very condition of things in which the fiction of a lost grant was invented, though it is not yet mentioned. Legally the time beyond memory was still one (1 Ric. I.), but it was obviously so impossible to prove user for the full term, that evidence of it for an ordinary life time was generally accepted as sufficient in practice.
When this had become common, it would seem inequitable to require more. Yet if the opposing party could show the non-existence of the right prescribed for in the reign of Richard or John, or at any time in the long interval since, the court was still legally bound to hold that the prescription was not legally made out. In such a case the employment of a fiction is warranted, if ever. All parties knew that the objection was based on a mere technicality, and, it might be said, a mere accident, having nothing to do with the merits of the case.