Page:The American Cyclopædia (1879) Volume XIII.djvu/846

 822 PRESCRIPTION PRESERVATION OF FOOD of the earliest writers on the English juris- prudence, and who wrote before the statutes of limitation were so nicely developed as they now are, and who moreover borrowed much of his learning immediately from the Roman law, lays it down that undisturbed enjoyment may as well give title to corporeal as to incor- poreal rights, and that was the principle of prascriptio in the code of Justinian. Amer- ican law, though it has, like the English law, its prescription and its limitations, yet does not so strictly as that limit the application of either, but seems sometimes to hold with Brae- ton that prescription may as well apply to lands as to rights of common or way. The period which gives prescriptive right has varied in the law. Anciently the law required that the right claimed should have existed undisturbed from time immemorial, or, as the old phrase is, " from time whereof the memory of man runneth not to the contrary."" When, by the statute of Westminster the first, in the time of Edward I., writs of right were limited to a certain period, it was thought reasonable that the period of prescription should bave a like limitation, and claims of right were therefore declared to be indefeasible if they existed be- fore the first day of the reign of Richard I. (July, 1189), but were invalidated if they had a later origin. By later statutes the period of limitation in real actions was still further re- duced, and it would have been only reasonable to conform to it the time of legal memory or prescription. But this was not done, and for a long time it was left to the courts to remedy the unfairness by equitable constructions. They hit upon the device of presuming, in case of the long enjoyment of an easement, that there had been a formal grant, of which the evi- dence, that is to say, the deed, was lost. If this presumption was not rebutted by proof to the contrary, the occupant's title was con- firmed. The effect was, that though prescrip- tive right commencing after the reign of Rich- ard I. was not sustained, for the law on that point was explicit and still imperative, yet possession for a period far less even than that of legal memory sufficed to warrant the pre- sumption of a grant. Prescription in its old sense was rarely pleaded, and time of legal memory came to be of little importance. But later, and particularly by the statute 2 and 3 William IV., the time of prescription was defi- nitely limited by express enactments to peri- ods varying from 60 to 20 years, according to the circumstances and the nature of the right claimed. The tendency of all modern legisla- tion, indeed, is to substitute a short certain pe- riod in lieu of the old immemorial prescription. In the United States the policy of the law has been to make the time of prescription analo- gous to that of the statutes of limitation ; in other words, to apply the same rule to like cases ; so that we are gradually bringing the cognate matters of prescription and limitation together again, and throwing them under vir- tually one title, as they should be in fact, and as they are in foreign codes. At this time ad- verse, exclusive, and uninterrupted enjoyment for 20 years affords in most states conclusive presumption of right ; in some, conforming to the statutes of limitation, it is still less ; and in exceptional cases, as for instance where rights are claimed under judicial or tax sales, if the period is measured by the time allowed for bringing suits at law to recover lands, sev- en, five, and even three years may establish a presumption of right in some states. That the principle of prescription is introduced into our law with singular fitness will appear when it is remembered that in this country all titles, even the oldest, are comparatively recent ; that unjust eviction might be in many cases easier than in older countries ; that during the rapid settlement of large districts of the coun- try the original instruments of conveyance were often rude and technically inexact ; and finally, that in many localities the original set- tlers had no other right than that which occu- pancy gave them, a title which custom recog- nized at the time as sufficient, but of which subsequent grantees could show no written evidence. In regard to the particular quali- ties of prescription, in the first place, the en- joyment of the right prescribed for must have been adverse; that is to say, it must either have invaded or limited the exercise of such a right of the owner as he could have asserted by action. Prescription therefore cannot be pleaded when possession has been enjoyed by the mere permission or license of the owner, for this recognizes the owner's title ; in short, the possession must have been enjoyed as of the possessor's right. Possession must also have been uninterrupted ; for he who ceases to hold possession seems himself to admit his lack of title. Claim of prescriptive right is also extinguished by unity of possession. Thus, if B has acquired by long enjoyment a right to have water flow through his land by ar- tificial courses upon A's estate, and then A buys B's land, and makes a conveyance of the land which once was B's, the grantee cannot claim a prescriptive right to the watercourses. Moreover, the right claimed by prescription must have been certain and reasonable. There can be no prescriptive right to do a wrong, or anything that would be a nuisance to another; nor can exclusive right be prescribed for in re- spect to a common privilege, for example, by one who has pastured his cattle for the pre- scribed period upon a common or a highway, or has enjoyed a way along a beach which is used in common by fishermen, fowlers, weed- gatherers, &c. Yet, as a member of the com- munity, an individual may assert prescriptive right in a public easement, as for example in a common landing place or a highway. PRESENTATION, Order of. See SISTEEHOODS. PRESERVATION OF FOOD. Articles of food (see ALIMENT) are very complex in their chemi- cal constitution, and are exceedingly prone