PRESCRIPTION, in English law, "is when a man claimeth any thing for that he, his ancestors or predecessors, or they whose estate he hath, have had or used anything all the time whereof no memory is to the contrary." (T. de la Ley.) This definition appears to be sufficiently definite and comprehensive. There have been various attempts at defining prescription, and few of them have ended in entire success. According to a passage in Littleton, prescription is made essential to custom. He says, "No custom is to be allowed, but such custom as hath been used by title of prescription; that is to say, from time out of mind. But divers opinions have been of time out of mind, &c., and of title of prescription, which is all one in the law." There is another claim, however, to which the term prescription is very frequently applied, and which resembles custom, in being endowed with the inseparable incidents of time and of usage, which is another essential to custom. Yet this claim differs from custom in the mode of pleading adopted in it, which serves to distinguish the difference of the right. The word prescription is given to this claim, because the plaintiff or defendant making it "prescribeth that," &c., going on to state the nature of his claim. The following example of such a prescription is taken from Coke upon Littleton:—"I. S. seised of the manor of D. in fee prescribeth thus: That I. S. his ancestors, and all whose estate he hath in the said manor, had and used to have common of pasture time out of mind in such a place, &c., being the land of some other, &c., as pertaining to the same manor." It accordingly follows that the claim by prescription is properly a claim of a determinate person; that by custom, as opposed to prescription, belongs and applies to a particular place, belongs and applies to many, nay, to an indefinite number of persons, such as to the inhabitants of an entire parish. From the first definition, it appears that prescription may belong to a man as the heir of his ancestors, or to a corporation as the representatives of their predecessors, or it may be the claim of one who holds a situation in which there is perpetual succession, or by a person in virtue of an estate which he holds.
It seems to form an essential element in prescription, that the use of the thing claimed should have been time out of mind continuous and peaceable. As to the signification of the expression "time out of mind," it means that there must be no evidence of the non-usage of the claim subsequent to the first year of legal memory; that is, after the beginning of the reign of the first Richard. In order to substantiate the prescription, there must also be evidence of repeated usage; but where the evidence fails to show the beginning of the enjoyment, twenty years has been considered sufficient proof. Prescription is said to be founded on the assumption of an original grant that has been long lost. Thus Blackstone, in speaking of the erection of corporations, has the following passage:—"Another method of implication, whereby the queen's consent is presumed, is, as to all corporations, by prescription; such as the city of London, and many others, which have existed as corporations time whereof the memory of man runneth not to the contrary, and therefore are looked upon in law to be well created. For though the members thereof can show no legal charter of incorporation, yet, in cases of such high antiquity, the law presumes that there once was one; and that, by the variety of accidents which a length of time may produce, the charter is lost or destroyed."
Some alterations as to prescription have been made by
recent acts, limiting the time within which actions can be brought, or suits instituted, relating to real property. Such are the 3 and 4 Will. IV., c. 27; also 2 and 3 Will. IV., c. 100. The 2 and 3 Will. IV., c. 71, is entitled "An Act for Shortening the time of Prescription in certain Cases," and applies (§ 1) to "claims which may be lawfully made at the common law by custom, prescription, or grant, to any right of common, or other profit or benefit, to be taken from or upon any land, &c., except such matters and things as are therein specially provided for, and except tithes, rents, and services." Section 2 applies "to any way or other easement, or to any watercourse, or the use of any water;" and sect. 3 to the use of light. It is further enacted, that no claim to the things comprised within this statute, "shall, when such right, profit, or benefit (as is mentioned in sect. 1), shall have been actually taken and enjoyed by any person claiming right thereto, without interruption, for the full period of thirty years, be defeated or destroyed, by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such right, profit, or benefit shall have been so taken and enjoyed, as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that purpose by deed or writing." The terms of twenty and forty years are fixed respectively, instead of thirty and sixty, as mentioned in the first section. The eighth section enacts, "that when any land or water upon, over, or from which any such way, or other convenient watercourse, or use of water, shall have been enjoyed or derived, hath been or shall be held under any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way, or other matter as therein last mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall, within three years next after the end, or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof."