Page:Harvard Law Review Volume 2.djvu/63

 THE LA W SCHOOL,

45

for the recovery of land are to be extended, so far as applicable, to the acquirement of incorporeal rights by prescription ; and that the doctrine of a lost grant is a stumbling-block, which is best out of the way. These cases have met with general acceptance, and represent, I think, the law of the United States to-day. Wallace v. Pletcher^ lo Fost. 434 ; Tracy v. Atherton^ 36 Vt. 503. Even if the theory of a lost grant is still to be perpetuated, the law in this country is now that the pre- sumption of such grant is a legal presumption, and that no evidence can be introduced that in fact such grant was never made.

This conclusion disposes of some of the cases cited for the defendant, such as Nichols v. Ayler^ 7 Leigh, 546, which go upon the ground that the presumption is one of fact ; but it does not dispose of the whole case.

I have said that the law arising under the Statute of Limitations is to be extended, so far as it is applicable^ to cases of the acquirement of easements ; but the question remains, how far it is applicable ; corporeal and incorporeal rights are not identical, and it may not be possible to apply the rules which govern the one class to the other.

The ordinary form of the Statute of Limitations is that no one shall bring an action to recover land or make an entry thereon more than twenty years after the right of action or entry accrues. Here, of course, threats and complaints by a disseisee will not stop the running of the Statute against him. The right to bring an action first accrued to him when he was disseised, and this fact is unaffected alike by his holding his tongue, or by his threats. Whether he is silent, or whether he complains and threatens, is immaterial, except so far as the complaints and threats tend to rebut any notion that the holding is by license.

But no action will lie by the owner of a servient tenement to recover an easement over his land, nor can he make any entry upon such ease- ment. He is already seised of the land over which the easement is exercised, and therefore it does not seem conclusive against the propo- sition that threats will interrupt the acquisition of an easement, that they will not stop the running of the Statute of Limitations.

The real question seems, in applying the rules of the Statute of Limitations to cases of prescription, to be this : What acts amount to an interruption of the possession of an easement, corresponding to an interruption of the possession of a freehold ? To stop the running of prescription, there must be a dispossession of the person exercising the easement from the right which he is exercising.

Some learned persons have denied that there can be any true pos- session of easements ; but this seems to overlook the fact that the only things of which we have legal possession are rights. The things which we can hold in our hands are very few, and in extending the idea of possession beyond such things it must be referred to the power and intention to exercise rights, and it makes no difference whether they be single rights like rights of way, or the bundles of rights which constitute the rights in a corporeal hereditament.

For a man to have- possession there must be ( i ) a desire on his part that persons generally may not do anything concerning a material object which is inconsistent- ei^er^ with his doing any act concerning that thing, or with his doing certain specified acts concerning that thing ; (2) there must have been some outward act on or touching the thing