III. OF TITLE BY PRESCRIPTION.

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these Commentaries.(a) At present, therefore, I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for.

And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege.(b) As for example; if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close at all times, for their recreation (which is held (c) to be a lawful usage); this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but [ *264 ] if the *tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath: (d) which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended (e) for an indefinite series of years.(1) But by the statute of limitations, 32 Hen. VIII, c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made. (ƒ) (2)

(e) Co. Litt. 113. (c) 1 Lev. 176. (d) 4 Rep. 32. (b) Co. Litt. 113. (a) See book I, page 75, &c. (This title, of prescription, was well known in the Roman law by the name of usucapio (Ff. 41, 3, 3), 80 called, because a man, that gains a title by prescription, may be said usu rem capere.

(1) [See 6 Mee. and W. 542; 6 Jur. 837; 6 Scott, 167; 11 Ad. and E. 819. A right acquired by prescription may be lost by abandonment or non-user. After twenty years of non-user the court would generally presume that the right had been released, and abandonment may be inferred from unequivocal acts within a much shorter time; as by pulling down a wall, in which was an ancient light, and erecting a blank wall in its place. 3 B. and Cr. 336; 3 Ad. and El. 325.]

(2) [To remedy the defects in the methods of acquiring title by prescription, the act 2 and 3 Wm. IV, c. 71, commonly called Lord Tenterden's act, was passed, by which the user which should render a title to an easement indefeasible is defined.

By the first section it is declared that no claim which might lawfully be made at the common law, by custom, prescription or grant, to any right of common or other profit a prendre, except such matters and things as are therein specially provided for (meaning rights of way or other easements, watercourses and lights), shall, if it have been uninterruptedly enjoyed by any person claiming right thereto for thirty years, be defeated by showing the commencement of the enjoyment of such right prior to the period of thirty years. But any other mode of defeating the claim which was before, is to continue to be available for that purpose, except that an uninterrupted enjoyment for sixty years (unless had by consent, expressly given by deed or writing), is to confer an absolute and indefeasible title.

By the next section, when the right claimed is a right of way or other easement or a water course, or the use of any water-see Webb v. Bird, 31 L. J. C. P. 335-the above periods of thirty and sixty years are reduced to twenty and forty respectively.

By the third section, the claim to the access and use of light for any dwelling house, workshop 503 or other building, if actually enjoyed, otherwise than by consent or agreement in writing,

Secondly, as to the several species of things which may, or 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.(g) 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 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. 2. A prescription [*265] must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates. (h) For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for anything, 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 prescribe 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 cannot be for a thing which cannot 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. (3) Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by

is made indefeasible after twenty years' user, any local user or custom to the contrary notwithstanding. In this case the necessity for proving that the easement had been used as of right is dispensed with. But by other sections, provision is made to meet the cases where the persons who are interested in contesting the right are incapacitated, or only entitled in reversion, and an explanation is given that nothing is to be deemed an interruption unless it is submitted to for a year.

It will be seen from the above statement of the act, that if the easement be enjoyed under a parol license, extending over the periods of thirty or twenty years (except in the case of light), this fact is sufficient to defeat the claim: for then the user would not be as of right, and so would not come within the act: and a parol license was always at common law sufficient to rebut the presumption of a grant. Tickle v. Brown, 4 A. and E. 369; S. C.. 6 N. and M. 230. And where the nature of the right is such that it could not be claimed as of right, the act evidently does not apply; for instance, where the claim is to the overflow of water from a canal, consequent upon boats passing through the locks of the canal. Staffordshire, &c. Canal Nav. v. Birmingham Canal, L. R. 1 H. L. E. and J. 254.

As to the nature of the user, and whether it is of right within the intention of the act, see Warburton v. Parke, 2 H. and N. 64; Bright v. Walker, 1 Cr. M. and R. 211; Onley v. Gardiner, 4 M. and W. 496; Beasley v. Clarke, 3 Scott, 263; England v. Wall, 10 M. and W. 699; Eaton v. Swansea Water Co., 17 Q. B. 267.]

(3) [The general rule with regard to prescriptive claims is, that every such claim is good if by possibility it might have had a legal commencement: 1 Term. R. 667, ante, pp. 31 and 35, and notes; and from upwards of twenty years' enjoyment of an easement or profit a prendre, grants, or, as Lord Kenyon said, even a hundred grants, will be presumed, even against the crown, if by possibility they could legally have been made. 11 East, 284, 495. Thus a fair or market may be claimed by prescription, which presumes a grant from the king, which by length of time is supposed to be lost or worn out: Gilb. Dist. 22; but if such a grant would be contrary to an express act of parliament it would be otherwise. 11 East, 495. But an exception to the general rule is the claim of toll thorough, where it is necessary to show expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse. 1 T. R. 667; 1 B. and C. 223. An ancient grant without date does not necessarily destroy a prescriptive right for it may be either prior to time of legal memory or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bla. R. 989. Nor will a prescriptive right be destroyed by implica tion merely in an act of parliament. 3 B. and A. 193.]

any grant, it shall not be good by prescription. (i) A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands, felon's 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 cannot 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. (k) (4) 5. 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, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds), nothing is claimable by this prescrip- [266] tion, 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 connexion; 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. (1) 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. (5)

(i) 1 Vent. 387.

(k) Co. Litt. 114.

(1) Litt. 183. Finch, L. 104.

(4) [The reason for this distinction is not very satisfactory; though the forfeiture must be matter of record, there seems no ground why the right to receive that forfeiture might not be claimed by prescription: at all events there is some inconsistency, for a man may prescribe for a court leet, which is a court of record, as well as for a county palatine, and by reason thereof to have the forfeitures in question. Co. Litt. 114, b.]

(5) The term "prescription" is in strictness applicable only to incorporeal hereditaments Ferris v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Penn. St. 431. In order to raise the presumption of a grant, the user must have been peaceable and open, and it must have been adverse to the owner of the land. Sargent v. Ballard, 9 Pick. 251; Brace v. Yale, 10 Allen, 441; Watkins. Peck, 13 N. H. 360; Corning v. Gould, 16 Wend. 531; Colvin v. Burnett, 17 id. 564; Trask v. Ford, 39 Me. 437; Perrin v. Garfield, 37 Vt. 310. It must also have been continuous for the whole period. Pollard v. Barnes, 2 Cush. 191; Branch v. Doane, 18 Conn. 233; Pierre v. Fernald, 26 Me. 436; Rogers v. Sawin, 10 Gray, 376. And if the mode of user has been changed during the time, the party can claim only to the extent that he has continuously enjoyed the easement, or other right for the whole time. Monmouth, &c., Co. v. Harford, 1 Č. M. & R. 614; Dand v. Kingscote, 6 M. & W. 174. Stackpole v. Curtis, 32 Me. 383; Biglow v. Battle, 15 Mass. 313; Darlington v. Painter, 7 Penn. St. 473; Belknap v. Trimble, 3 Paige, 577. But although the extent of the right is to be measured and regulated by the enjoyment upon which the right is supported, the party is yet allowed freedom in the manner of exercising it. See Ang. on Watercourses, § 226, and cases cited. And on the general subject, see Bowman v. Wickliffe, 15 B. Monr. 84; Garrett v., Jackson, 20 Penn. St. 331; Tyler v. Wilkinson, 4 Mason, 397; Thomas v. Marshfield, 13 Pick. 248, Ricard v. Williams, 7 Wheat, 109; Morrison v. Chapin, 97 Mass. 72.

VOL. I.-64

505

CHAPTER XVIII.

IV. OF TITLE BY FORFEITURE.

FORFEITURE is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained.

Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denomi nated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and misdemeanors, and the several degrees of those forfeitures proportioned to the several offences. have been hinted at in the preceding book; (a) but it will be more properly con sidered, and more at large, in the fourth book of these Commentaries. At presen I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason.

[ *268] 2. Felony. (1) 3. Misprision of treason. 4. Præmunire. *5. Drawing a weapon on a judge, or striking any one in the presence of the king's principal courts of justice. 6. Popish recusaney, or non-observance of certain laws enacted in restraint of papists. (2) But at what time they severally commence, how far they extend, and how long they endure, will with greater propriety be reserved as the object of our future inquiries. (3)

II. Lands and tenements may be forfeited by alienation, or conveying them to another, contrary to law. This is either alienation in mortmain, alienation to an alien, or alienation by particular tenants; in the two former of which cases the forfeiture arises from the incapacity of the alienee to take, in the latter from the incapacity of the alienor to grant.

1. Alienation in mortmain, in mortua manu, is an alienation of lands or tenements to any corporation, sole or aggregate, ecclesiastical or temporal. Buc these purchases having been chiefly made by religious houses, in consequence whereof the lands became perpetually inherit in one dead hand, this hath occasioned the general appellation of mortmain to be applied to such alienations, (b) and the religious houses themselves to be principally considered in forming the statutes of mortmain; in deducing the history of which statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses: how new remedies were still the parents of new evasions; till the legislature at last, though with difficulty, hath obtained a decisive victory.

By the common law any man might dispose of his lands to any other private man at his own discretion, especially when the feudal restraints of alienation were worn away. Yet in consequence of these it was always and is still neces [*269] sary, (c) for corporations to have a license in mortmain *from the crown, to enable them to purchase lands; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of

(a) Book I, page 299.

(b) See Book I, page 479.

(c) F. N. B. 121.

(1) Now by statute 3 and 4 William FV, c. 106, the forfeiture, where it exists at all, is only for the life of the person attainted. See note, p. 254.

(2) These laws are since repealed. See note, p, 257.

(3) [Until the facts of the seisin and of the forfeiture are found by an inquisition on behalf of the crown, or as it is phrased, until "office found," the land remains in the offender, and may be conveyed by him, subject to being divested upon the recording of the inquisition. See 5 B. and Ad. 765.]

escheats, and other feudal profits, by the vesting of lands in tenants that can never be attainted or die. And such licenses of mortmain seem to have been necessary among the Saxons, about sixty years before the Norman conquest. (d) But, besides this general license from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his license also (upon the same feudal principles), for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land so aliened in mortmain as a forfeiture. The necessity of this license from the crown was acknowledged by the constitutions of Clarendon, (e) in respect of advowsons, which the monks always greatly coveted, as being the groundwork of subsequent appropriations. (f) Yet such were the influence and ingenuity of the clergy, that (notwithstanding this fundamental principle) we find that the largest and most considerable dotations of religious houses happened within less than two centuries after the conquest. And (when a license could not be obtained) their contrivance seems to have been this: that, as the forfeiture for such alienations accrued in the first place to the immediate lord of the fee, the tenant who meant to alienate first conveyed his lands to the religious house, and instantly took them back again to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture: and then, by pretext of some other forfeiture, surrender or escheat, the society entered into those lands in right of such their newlyacquired signiory, as immediate lords of the fee. But when these dotations began to grow numerous, it was observed that the feudal services, ordained for the defense of the kingdom, were every day visibly withdrawn; that the circulation of landed property from man to man began to *stagnate; and that the lords were curtailed of the fruits of their signiories, their escheats, [*270 ]

wardships, reliefs, and the like; and therefore, in order to prevent this, it was ordered by the second of King Henry III.'s great charters, (g) and afterwards by that printed in our common statute books, that all such attempts should be void, and the land forfeited to the lord of the fee. (h)

But, as this prohibition extended only to religious houses, bishops and other sole corporations were not included therein; and the aggregate ecclesiastical bodies (who Sir Edward Coke observes, (i) in this were to be commended, that they ever had of their counsel the best learned men that they could get), found many means to creep out of this statute, by buying in lands that were bona fide holden of themselves as lords of the fee, and thereby evading the forfeiture; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which are now so frequent in conveyances. This produced the statute de religiosis, 7 Edw. I; which provided, that no person, religious or other whatsoever, should buy, or sell, or receive under a pretence of a gift, or term of years, or any other title whatsoever, nor should by any art or ingenuity appropriate to himself any lands or tenements in mortmain: upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture.

This seemed to be a sufficient security against all alienations in mortmain: but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land, which it was intended they should have, and to bring an "action to recover it against the tenant; who by fraud and collusion, made no defence, and [*271] thereby judgment was given for the religious house, which then recovered the

(d) Selden, Jan. Angl. 1. 2, § 45.

(e) Ecclesiae de feudo domini regis non possunt in perpetuum dari, absque assensu et consensione ipsius. c. 2, A. D. 1164. (f) See book I, page 384.

(g) A. D. 1217. cap. 43, edit. Oxon.

(h) Non licet alicui de cætero dare terram suam alicui domui religiosæ, ita quod illum resumat tenendam de eadem domo ; nec liceat alicui domui religiosœ terram alicujus sic accipere, quod tradat illum ei a quo ipsam recepit tenendam : si quis autem de cætero terram suam domui religiosa sic de deret, et super hoc convincatur, donum suum penitus cassetur, ut terra illa domino suo illius feodi in curratur. Mag. Cart. 9 Hen. III, c. 36. (i) 2 Inst. 75.