479 TITLE XXXI. PRESCRIPTION. CHAP. I. Prescription by Immemorial Usage. CHAP. II. Statutes of Limitation. CHAP. I. Prescription by Immemorial Usage. SECT. 1. Origin of Prescription. SECT. 25. And have a continued 6. Prescription by Imme- 8. May be in the Person or in the Estate. 10. What may be claimed by. 21. Must be beyond time of Usage. 28. And be certain and rea sonable. 35. How a Prescription 42. Descent of Prescrip- SECTION I. scription. By the law of nature, occupancy not only gave a right Origin of Preto the temporary use of the soil, but also a permanent property in the substance of the earth itself, and to every thing annexed to or issuing out of it. Hence possession was the first act from which the right of property was derived; it has therefore been established as a rule of law, in every civilized country, that a long Vin. ad Inst. and continued possession should give a title to real property. 2. This mode of acquisition was well known in the Roman law by the name of usucaptio, because a person who acquired a title in this manner might be said, usu rem capere; and is thus defined by Modestinus, Adjectio dominii per continuationem possessionis temporis lege definiti. In the English law it is called pre1 Inst. 113. b. scription; and Lord Coke says, prescriptio est titulus ex usu et tempore substantiam capiens, ab auctoritate legis. Lib. 2. c. 22. 3. The doctrine of prescription appears to have been long established in England; and, from what is said of it in Bracton, seems to have been derived from the Roman law; for he lays it down that a title may be gained, both to corporeal and incorporeal hereditaments, by a long and uninterrupted possession. Dictum est in precedentibus qualiter rerum corporalium dominia ex titulo, et justa causa acquirendi, transferuntur per traditionem. Nunc autem dicendum qualiter transferuntur sine titulo, per usucaptionem; scil. per longam continuam et pacificam possessionem, ex diuturno tempore, et sine traditione. 4. Every species of prescription, by which property is acquired or lost, is founded on this presumption, that he who has had a quiet and uninterrupted possession of any thing, for a long period of years, is supposed to have a just right, without which he could not have been suffered to continue in the enjoyment of it. For a long possession may be considered as a better title than can commonly be produced, as it supposes an acquiescence in all other claimants; and that acquiescense also supports some reason for which the claim was forborne. ,་ 5. By the law of England a prescription can only be made to incorporeal hereditaments, such as rents, rights of way and common; &c. for no prescription can give title to lands or other corporeal inheritances, of which more certain evidence may be had. Thus Sir W. Blackstone says, 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 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 prescribe, 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. There is, however, another kind of prescription established by the statute law, extending to corporeal hereditaments, by which an uninterrupted possession for a certain number of years will give the possessor a good title, by taking from all other persons the right of entering on such hereditaments, or of maintaining any species of action for the recovery of them. by immemorial 6. There are, therefore, two kinds of prescription Prescription known to the English law. First, a prescription to usage. incorporeal hereditaments by immemorial usage; as where a person shews no other title to what he claims than that he and all those under whom he claims have immemorially used to enjoy it; which may be called a positive prescription. 4 Rep. 31 b. 7. A prescription by immemorial usage differs from 1 Inst. 113 b. custom in this respect, that a custom is properly a local usage, not annexed to the person; such as the custom that all the copyholders of a manor have common of pasture upon a particular waste whereas prescription is always annexed to a particular person. person, or in the estate. 8. This kind of prescription is of two sorts. Either May be in the it is a personal right, which has been exercised by a man and his ancestors, or by a body politic and their predecessors; or else it is a right attached to the ownership of a particular estate, and only exercisable by those who are seised of that estate. In the first 6 Rep. 60 a. What may be claimed by. Tit. 27. § 95. 1 Inst. 114 a. 5 Rep. 109. 6. 1 Vent. 387. case it is termed a prescription in the person; in the second case it is called a prescription in a que estate. 9. A prescription in a que estate must always be laid in the person who is seised of the fee simple. A tenant for life, for years, or at will, or a copyholder, cannot prescribe in this manner, by reason of the imbecility of their estates; for, as prescription is always beyond time of memory, it would be absurd that those whose estates commenced within the memory of man should pretend to prescribe for any thing. Therefore, a tenant for life must prescribe under cover of the tenant in fee simple, and a copyholder under cover of his lord. 10. It has been stated that prescription by immemorial usage only extends to incorporeal hereditaments, such as rents, commons, ways, &c. (a) Nothing, however, can be claimed by prescription which owes its origin to matter of record; for prescription being only an usage in pais, does not extend to those things which can only be acquired by matter of record; such as goods and chattels of traitors, felons, and fugitives; deodands, &c. but to treasure trove, waifs, estrays, wrecks, park, free warren, fairs, markets, and the like, a title may be made by prescription. 11. A prescription by immemorial usage can in general only be for things which may be created by grant; for the law allows prescriptions only to supply the loss of a grant. Ancient grants must often be lost; and it would be hard that no title could be made to things lying in grant, but by shewing the grant. Upon imme1 Jac. & Wall. morial usage, therefore, the law will presume a grant, Gibson v. Clark, 159. (a) By the general law all pews in a church belong to the parishioners at large; but the distribution among them rests with the ordinary. There may, however, be a right paramount to the ordinary by immemorial usage: but this prescriptive right must be annexed to the occupation of a messuage, and all repairs must have been done at the expense of the party setting up the prescription. Pettman v. Bridger, 1 Phil .3 16. and a lawful beginning; and allows such usage for a good title but still it is only to supply the loss of a grant. Therefore, for such things as can have no lawful beginning, nor be created at this day, by any manner of grant, or reservation, or deed, that can be supposed, a prescription is not good. 12. A person may have frank foldage by prescrip- 1 Inst. 114 6. tion, but it must be appendant to land; and a man may prescribe that he and his ancestors, time out of mind, have had frank foldage of the beasts of his tenants, in a particular place. Hay's case, s Rep. 125. 13. In trespass, the defendant justified under a pre- Jeffry at scription, that the lords of the manor of H. had, and always used to have, free foldage throughout the vill of H., and to have the penning of the sheep; so that the vill of H. ought not to have free foldage, without the consent of the lord; and that if any levied a fold, without such consent, the lord had used to abate it. It was urged, that this prescription was void, being against common right, which gave every one foldage in his own land. Sed non allocatur, for every prescription is against common right; and it did not extend to deprive the owner of the whole interest and profit of his land, which would not have been good; Punsany v. but only precluded him from setting up hurdles, which Leader, was a reasonable prescription, and restrained a particular profit only. 14. In a modern case it was held that an ancient grant without date does not necessarily destroy a prescriptive right; for such grant may either be prior to the time of memory, or in confirmation of such prescriptive right. 1 Leon. 11. Clode, 989. 15. In trespass the defendants pleaded, that Clode Addington v. was seised of a messuage, &c.; that he and all those 2 Black. R. whose estate he had, &c. for the time being, had and used, and had been accustomed to have and use, and so still of right ought to have and use, common of |