Page:Encyclopædia Britannica, Ninth Edition, v. 19.djvu/729

Rh PRESCRIPTION 705 ancestors. After one or two previous enactments the date was finally fixed by the Statute of Westminster the First (3 Edw. I. c. 39) at the reign of Richard I., which was in terpreted to mean the first year of the reign of Richard I. The inconvenience of this remote date, as time went on, led to the gradual growth of a rule of evidence that proof of enjoyment for twenty years was prima fade evidence of enjoyment from time immemorial. But evidence of the beginning of the enjoyment at however remote a date, if subsequent to 1 Ric. I., was sufficient to destroy the claim. This is still the law with respect to claims not falling within the Prescription Act, mostly rights in gross, that is, where there is no dominant or servient tenement, e.g., a right to a pew or to a several fishery in gross. The twenty years rule was of comparatively late introduction ; it does not seem to have been known in the time of Elizabeth, and was perhaps introduced in analogy to the Statute of Limitations, 21 Jac. I. c. 16. With respect to claims of profits a prendre and easements a change was made by the Prescription Act, 2 and 3 Will. IV. c. 71 (extended to Ireland by 21 and 22 Viet. c. 42, but not to Scotland). By that Act claims to rights of common and other profits a prendre are not to be defeated after thirty years enjoy ment by any person claiming right thereto without inter ruption for thirty years by showing only the commencement of the right, and after sixty years enjoyment the right is absolute and indefeasible unless had by consent or agree ment by deed or writing ( 1 ). In claims of rights of way or other easements the periods are twenty years and forty years respectively (^ 2). The right to access and use of light is absolute and indefeasible by twenty years enjoy ment without interruption unless by consent or agreement by deed or writing ( 3). The before-mentioned periods are to be deemed those next before suits, and nothing is to be deemed to be an interruption unless acquiesced in for one year ( 4). In pleading, the enjoyment as of right may be alleged during the period mentioned in the Act, and without claiming in the name or right of the owner of the fee (5). No presumption is to be made in favour of a right exercised for a less period ( 6). The time during which a person otherwise capable of resisting a claim is an infant, idiot, nan compos mentis, feme covert, or tenant for life, or during which an action or suit has been pending until abated by the death of a party, is to be excluded in the computation of the periods unless where the right or claim is declared to be absolute and indefeasible (7). In the period of forty years a term of life or more than three years is to be excluded in case the claim be resisted by the reversioner within three years after the determination of the term ( 8). An Act to define the period of prescription for a modus decimandi, or an exemption from tithes by composition, was passed the same year (2 and 3 Will. IV. c. 100; see TITHES). The Prescription Act is only supplemental to the common law, so that a claim may be based upon the Act or, in the alternative, upon the common law. Nor does the Act alter the conditions necessary at common law for a good claim by prescription. The claim under the statute must be one which may be lawfully made at common law. The prin cipal rules upon the subject are these. (1) The title is founded upon actual usage. The amount of actual usage and the evidence necessary to prove it vary according to the kind of claim. For instance, in continuous easements (such as a watercourse) the enjoyment may go on without any active interference by the person claiming the right ; in discontinuous easements (such as a right of way) the right is only enjoyed at intermittent periods. (2) The enjoyment must (except in the case of light) be as of right, a rule sometimes expressed by the words nee vi nee clam nee precario, derived from Roman law, that is to say, peace able, openly used, and not by licence. These words bear a meaning less strict than they did in Roman law. The enjoyment in Roman law must (except in the case of jus aquae, ducendx) have been ex justo titido in order to found usucapio or quasi usucapio ; in English law there is no doubt that enjoyment may be good by prescription, even though it began in trespass, as a footpath or a rent. (3) The prescription must be certain and reasonable. Examples of claims by prescription which have been held to be bad on this ground are a claim to take out of the land of another as much clay as is required for making bricks at a certain kiln, and a claim to a marriage fee which, though reasonable now, would have been an unreasonable amount to have been paid in the reign of Richard I., looking to the difference in the value of money. Inhabitants cannot claim by prescription, as they are an uncertain and fluctuat ing body, unless under a grant from the crown, which con stitutes them a corporation for the purposes of the grant. (4) The prescription must be alleged in a que estate or in a man and his ancestors. Prescription in a que estate lies at common law by reason of continuous and immemorial enjoyment by the claimant, a person seised in fee, and all those whose estate he has (toux ceux que estate il ad). The Prescription Act fixes a definite period and does away with the necessity which existed at common law of prescribing in the name of the person seised in fee. Prescription in a man and his ancestors is not of ordinary occurrence in practice. &quot; I am not aware of more than two cases in modern times,&quot; says Mr Joshua Williams (Rights of Com mon, 9), &quot; where a prescription of this kind, viz., a pre scription of enjoyment by a man and his ancestors, irre spective of the possession of land, has been set up.&quot; Corporations, however, occasionally claim by a prescription analogous to this, viz., in the corporation and its prede cessors. Such claims by either a person or a corporation are not within the Prescription Act, which applies only where there are dominant and servient tenements. By 32 Hen. VIII. c. 2 no person can make any prescription by the seisin or possession of his ancestor unless such seisin or possession has been within threescore years next before such prescription made. (5) A prescription cannot lie for a thing which cannot be granted, as it rests upon the presumption of a lost grant. Thus a lord of a manor cannot prescribe to raise a tax or toll upon strangers, for such a claim could never have been good by any grant. Prescription and Custom. Prescription must be care fully distinguished from custom. Prescription, as has been said, is either in a que estate or in a man and his ancestors, that is to say, it is a personal claim ; custom is purely local, that is to say, it is a usage obtaining the force of law within a particular district. In the time of Littleton the difference between prescription and custom was not fully recognized (see Littleton s Tenures, 170), but the law as it exists at present had become established by the time of Sir Edward Coke. &quot; J. S. seised of the Manner of D. in fee prescribeth thus; That J. S. his ancestors and all those whose estate he hath in the said Mannor have time out of mind of man had and used to have Common of pasture &c. in such a place &c., being the land of some other &c. as pertaining to the said Mannor. This property we call a Prescription. A custome is in this manner ; A copyholder of the Mannor of D. cloth plead that within the same Mannor there is and hath been for time out of mind of man used, that all the Copy holders of the said Mannor have had and used to have Common of pasture &c. in such a waste of the Lord, parcel of the said Mannor &c.&quot; (Coke upon Littleton, 113b). A custom must be certain, reasonable, and exercised as of right. Like prescription at common law, it must have existed from time immemorial. On this ground a custom XIX. 89