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it is enacted, that no person shall make any prescription by the seizin or possession of his ancestor or predecessor, unless such seizin or possession hath been within threescore years next be

fore such prescription made." What may

Secondly, as to the several species of things which may, or be prescribed for. 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, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had.For a man shall not 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 corporeal seizin 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 prescribe; for of these there is no corporeal seizin, the enjoyment will be frequently by intervals, and therefore the right to en

joy them can depend on nothing else but immemorial usage. [265] 2. A prescription must always be laid in him that is tenant of

the fee. A tenant for life, for years, at will, or a copyholder, can not prescribe by reason of the imbecility of their estates.h For, as a prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, 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 pre

i This title, of prescription, was well scription may be said usu rem known in the Roman law by the name pere. of usucapio (Ff., 41, 3, 3); so called be- 6 Dr. & St., Dial. 1, c. 8. Finch, 132. cause a man that gains a title by pre- h 4 Rep., 31, 32.

ca

The inference from the evidence of en- 325. See 5 Moo. & P., 712 ; 2 C., M&
joyment may be more extensive than the R., 34; Com. Dig., Prescription, (E., 2);
facts proved, as from proof of pasturage 6 Jurist, 837.) The Statute of limita-
of all the cattle kept by the claimant tions, stated infra, is applicable to these
may be inferred a right of common for rights. (7 Ad. & E., 701.)
sheep, although he never kept sheep (4
B. & Cr., 161); or proof of holding (3) See a statement of the present
market in certain places within a manor law of limitation, infra, p. 266, n.
may be evidence of the lord's right to
hold the market in any convenient place (4) There was a striking distinction,
within the manor. (5 Ad. & E., 456; 3 however, between the Roman usucaptio
Nev. & P., 57 See 3 Scott, N. R., 751.) and the English prescription, in that the
A right acquired by prescription may be former was exclusively applicable to
lost by abandonment or non-user. After corporeal hereditaments, the latter to
twenty years of non-user the court would those of an incorporeal nature only.
generally presume that the right had
been released, and abandonment may (5) (As to legal memory, vide ante, p.
be inferred from unequivocal acts, with- 31, n. 21.) Therefore, a prescription
in a much shorter time, as by pulling can not be where the thing to which it
down a wall in which was an ancient relates was created within the time of
light, and erecting a blank wall in its legal memory. (Lofft, 76. See Cowp.,
place. (3 B. & Cr., 336; 3 Ad. & El., 108.)

scribe 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 its appurtenances, to him, the said tenant, for life. 3. A prescription can not be for a thing which can not 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. Thus, the lord of a manor can not 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 mat- Matter of ter of record can not be prescribed for, but must be claimed record not. 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 the inquisition of a jury, and so made a matter of record, the forfeiture itself can not be claimed by an 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.k5. 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, i 1 Vent., 387. [See 5 Nev. & M., 513.]

Co. Litt., 114.

or

(6) Where a copyholder claims com- seems no ground why the right to remon or other profit in the lord's soil, he ceive that forfeiture might not be claimcan not prescribe for it in his own name, ed by prescription; at all events, there on account of the baseness and weakness is some inconsistency, for a man may of his estate, which, in consideration of prescribe for a court leet, which is a law, is only a tenancy at will; neither court of record, as well as for a county can he prescribe in the lord's name, for palatine, and by reason thereof to have he can not prescribe for common or other the forfeitures in question. (Co. Litt., profit in his own soil; therefore, of neces. 114, b.)-[COLERIDGE.] The meaning sity, the copyholder must entitle himself seems to be, that where the forfeiture to it by way of custom within the man- is evidenced by record, the title must

But where a copyholder claims necessarily appear by the same record, common or other profit in the soil of a and so should not be proved by inferior stranger, which is not parcel of the man- evidence; but where the claim is to hold or, he must prescribe in the name of the the court itself, the record can not be lord ; namely, that the lord of the man- evidence of the title on which its own or and bis ancestor, and all those whose validity depends, and so evidence of estate he has, have had common, &c., prescription is necessarily admitted. Acin such a place for himself and his cus. cordingly, where, in the case of the Abtomary tenants, &c., and then state the bot of Strata Mercella, the objection grant of the customary tenement; for was urged that the original charter might the lord has the fee of all the copyholds be lost, it was answered, that if the enof his manor. (4 Rep., 31, b; 6 Rep., rollment of it could not be found, yet al60, b; Hob., 86; Cro. Eliz., 390; Moore, lowances in eyre (as by the law ought 461; 1 Saund., 349.)—[Chitty.] to be) are of record of all such franchis

es, by which it appears, that by force of (7) The reason for this distinction is these charters such franchises were alnot very satisfactory; though the forfeit- lowed. (9 Rep., 25.) ure must be matter of record, there Vol. II.-U

305

or in himself and his ancestors. For, if a man prescribe in a ( 266 ) que estate (that is, in himself and those whose estate he holds),

nothing is claimable by this prescription but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connection ; but, if he prescribes in himself and his ancestors, he may prescribe for any thing 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 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 its principal."

| Litt., Ø 183. Finch, L., 104.

(8) See 6 Ad. & El., 530.

be rebutted by evidence to the contrary, (9) A prescriptive right in gross, as, remote, so that it was subsequent to the

referring to any period of time, however for instance, to take the herbage of particular field, will, of course, until year 1189. (Ante, p. 32, n. 29; 1 Cr., aliened, descend only to the blood of M. and R., 894.) And this rule former the line of ancestors in which the pre- real right rested upon mere evidence of

ly applied to every claim to an incorpo scription is made; but such a right may be granted to a stranger, to whose heirs enjoyment, without any direct evidence it will descend, like any other purchase,

of a grant. (Cro. El., 118.) But in modand he and his heirs will then prescribe

ern times, the inconveniences attending in the name of the grantor and his an- induced the courts to sanction a new existence of such right at any time be- strongly opposed by the fact that no use fore the twenty years did not of neces- has been inade of the subject-matter; sity form any objection to such presump- but with respect to natural streams user tion. (1 M. & Mal., 400; 2 B. & Pul., is immaterial, and the diversion of them, 206 ; 11 East, 284; 1 Cr., M. & R., 217, however useless they may have been, 222, 893; 1 C. P. Coop., 239.) This can only be justified by license or preperiod of twenty years was adopted in scription. (See 5 M. & W., 220; 3 Per. analogy to the provisions of the Statute & D., 367 ; 5 B. & Ad., 1.) of Limitations of James I.; but there The right to air and light stands on a was no arbitrary rule; enjoyment for a different footing from other incorporeal shorter period, supported by corrobora- rights. “Every man in his own land tive evidence, might be sufficient; while has a right to all the light and air which enjoyment for a much longer period, un- will come to him, and he may erect, der less favorable circumstances, might even on the extremity of his land, buildbe insufficient to raise the presumption. ings with as many windows as he pleas(6 East, 214; 2 Saund., 175.) The pre- es. In order to make it lawful for him sumption of a grant was only resorted to to appropriate to himself the use of the when the evidence was not such as light, he does not require any consent would support a prescription. (3 Ad. & from the owners of the adjoining land. El., 584.) ** Such presumptions did not He therefore begins to acquire the right always proceed on a belief that the thing to the enjoyment of the light by mere ocpresumed had actually taken place, but, cupancy. After he has erected his buildas is properly said by Mr. Starkie in his ing, the owner of the adjoining land may excellent Treatise on Evidence, vol. i., afterward, within twenty years, build upp. 669 (in 3d ed., vol. iii., p. 911), a on his own land, and so obstruct the light technical efficacy was given to the evi- which would otherwise pass to the builddence of possession beyond its simple ing of his neighbor. But if the light and natural force and operation. And be suffered to pass without interruption though in theory it was presumptive ev- during that period to the building so idence, in practice and effect it was a erected, the law implies, from the nonbar.” (But see 5 Nev. & M., 313.) The obstruction of the light for that length liberty of presuming grants in this man- of time, that the owner of the adjoining ner has been somewhat narrowed by the land has consented that the person who 6th section of the statute 2 & 3 Will. had erected the building upon his land IV., c. 71, which enacts that, in all cases shall continue to enjoy the light without provided for by that act, no presumption obstruction, so long as he shall continue shall be allowed in favor of any claim the specific mode of enjoyment which upon proof of enjoyment for a shorter he had been used to have during that period than that applicable to the case period. It does not, indeed, imply that under the act. (Vide infra, and i Cr., the consent is given by way of grant, for M. & R., 222.)

the proof and support of a prescription cestors. (6 M. & W., 541.)

mode of establishing certain incorporeal (10) The old doctrine was, that a title rights, by presuming, from sufficient er. could only be made to an incorporeal idence of enjoyment, a modern grant hereditament by express grant or char- which has been lost. Evidence of twenter, or by prescription; and a claim by ty years' user as of right against the prescription, although it might be sup- owner of the fee, and those deriving unported, in the first instance, by evidence der bim, was accordingly held sufficient, of uninterrupted modern usage during if unexplained, to authorize the jury to a period of thirty years, or even less presume such a grant, even against the (3 Nev. & P., 260), yet it was liable to crown; and positive proof of the non

although a right of common (except as In aid of the acquisition of rights to to common appendant), or a right of light and air, and to divert or obstruct way, being a privilege of something ancient streams, it had long been the positive to be done or used in the soil practice to make presumptions of this of another man's land, may be the subkiud. With respect to water, it has ject of legal grant; yet light and air, not been seen that every one has a right to being to be used in the soil of the land have the water which passes over his of another, are not the subject of actual land to continue to flow in its ancient grant; but the right to insist upon the channels, and no one can either divert non-obstruction and non-interruption of any part of it from above or dam it up them more properly arises by a covefrom below his land, to his injury (ante, nant, which the law would imply, not p. 18, 1. 7). But acqniescence in such to interrupt the free use of light and air. interference during twenty years was The right, therefore, is acquired by mere generally a bar to the right to complain occupancy, and ought to cease when the of it (6 East, 208, 213): a rule to which person who has so acquired it discontin. this qualification must be added, that if ues the occupancy. If

, therefore, as in the course of the water has been by an this case, the party who has acquired artificial channel, the owner of the land the right once ceases to make use of the over which it passes does not necessari- light and air which he had appropriated ly acquire a right to its continuance after to his own use, without showing any iná lapse of twenty years, unless he has tention to resume the enjoyment, he appropriated it to some nise; because must be taken to have abandoned the the right to such artificial Aw of water right.” (Per Littledale, J., 3 B. & Cr., must be founded on the supposition of a 340.) The right to have one's house grant, a presumption which would be supported by the abutment of one's

The Prescription Act, 2 & 3 Will. IV., 2. 71.

neighbor's soil is of a similar nature, joyment at the commencement of the and can only be gained by grant, either period was by special authority (as unactual, or presumed from open enjoy. der an act of Parliament), which exment for at least twenty years. (3 M. pired during the period, and the enjoy& W., 220.)

ment for the rest of the period was A claim by prescription was liable to adverse; these facts, not being inconbe defeated, as has been seen, by evi- sistent with a continuous enjoyment as dence of non-existence, at any time, of right during the whole period, can however remote, if within the period of not be evidence in a traverse of the enlegal memory; and the moderu remedy joyment; although, if specially replied, for this inconvenience, by presuming a they would show that the claim could grant of moderate antiquity, was not not be supported as a claim by “cus. considered to be satisfactory in princi- tom, prescription, or non-existing grant." ple, and was uncertain and inconvenient (6 M. & W., 805.) in practice. (See 5 Nev. & M., 313.) But the time during which any perTo supply the imperfection of the law, son otherwise capable of resisting such Lord Tenterden's ". Act for shortening claim

shall have been infant, non comthe time of Prescription in certain cases' pos, feme covert, or tenant for life, or (2 & 3 Will. IV., C. 71) was passed. It during which any action shall have been applies to rights of mmon (5 M. & W., pending, and dilige

prosecuted until 298; 6 Id., 542; 7 Id., 63), or other abated by death, is to be excluded in profit or benefit (as distinguished froin the computation of the thirty years. easements, ante, p. 32, n. (30)), claimed Upon proof of such enjoyment for sis. by custom, prescription, or grant, to be ty years (without regarding any disabilexercised in alieno solo; to “any way ity), the right is to be deemed absolute or other easement, water-course (1 M. and indefeasible by any means, except & W.,77), or use of any water;" and by showing its origin by some express to “the access and use of light to or for consent or agreement in writing; that is any building;" but with a difference as to say, by showing its origin under such to each of these three classes of rights. an agreement prior to the commenceTithes, rents, and services are excepted ment of the period of sixty years; for from the operation of the statute. an enjoyment even by parol agreement

As to rights of common and other within the period is not such an enjoy. profits à prendre, the effect of proof of ment as of right as the act requires." (6 enjoyment as of right, and without in- Nev. & M., 230.) terruption (as distinguished from mere The periods of thirty and sixty years intermission of user, 1 M. & Rob., 382; are to be deemed and taken to be the 6 Jurist, 837; and see 6 Scott, 167 ; 6 periods next before some suit or action M. & W., 540) for thirty years, in sup- wherein the claim or matter shall have port of a claim which may lawfully be been or shall be brought in question. made at the common law, by custom, (As to the meaning of which words, see prescription, or grant,* is not to be de- 11 Ad. & El., 788; 7 M. & W., 536; 2 feated by showing the commencement Gale & D., 181.). It seems, that unless of the enjoyment at any time prior to the claimant's title has been established the thirty years, though it may be de- in some previous action, there must be feated in any other way in which, at the direct evidence of enjoyment within the common law, such a claim might have year preceding the commencement of been defeated. Thus it may be defeat- the action in which his title is disputed, ed by showing that the enjoyment for and not within the year preceding the thirty years was by parol license, cover- act complained of. (3 Nev. & P., 75; ing the whole time; for that, at common 7 Ad. & El., 702, 707; 8 Cl. & Fin., law, would have rebutted the presump- 23.) But if there is such evidence, tion of a grant. (6 Nev. & M., 239.) proof of enjoyment prior to the comSuch a license must be specially replied mencement of the period may be admitto a plea of prescription under the act ted as evidence of the state of things at (Ib.); although occasional licenses, or a the commencement of the period. (4 general license not covering the wholo Ad. & E., 890.) Of course, an ancient time, being inconsistent with a continu. right, founded on prescription, and deous enjoyment as of right, may be given rived by the present claimant by assignin evidence under a general traverse of ment from him with whose ancestors the enjoyment. (Ib.; 1 C., M. & R., the prescription commenced, will not 614; 3 Scott, 262.) Again, if the en- be defeated by evidence of modern in

See 1 C., M. & R., 218; and in illustration, the observations on the Tithe Prescription Act, ante, p. 32, n. (29).

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