1911 Encyclopædia Britannica/Prescription

by James Williams

PRESCRIPTION, in the broadest sense, the acquisition or extinction of rights by lapse of time. The term is derived from the praescriptio of Roman law, originally a matter of procedure, a clause inserted before the formula on behalf of either the plaintiff or, in early times, the defendant, limiting the question at issue. It was so called from its preceding the formula.^[1] One of the defendant's praescriptiones was longi temporis or longae possessio is praescriptio (afterwards superseded by the exceptio), limiting the question to the fact of possession without interruption by the defendant for a certain time. It seems to have been introduced by the praetor to meet cases affecting aliens or lands out of Italy where the usucapio of the civil law (the original means of curing a defect of title by lapse of time) could not apply. The time of acquisition by usucapio was fixed by the Twelve Tables at one year for movables and two years for immovable. Praescriptio thus constituted a kind of praetorian usucapio. In the time of Justinian usucapio and praescriptio (called also longi temporis possessio), as far as they affected the acquisition of ownership, differed only in name, usucapio being looked at from the point of view of property, praescriptio from the point of view of pleading. By the legislation of Justinian movables were acquired by three years' possession, immovable by ten years' possession where the parties had their domicile in the same province (inter praesentes), twenty years' possession where they were domiciled in different provinces (inter absentes). Servitudes could not be acquired by usucapio proper, but were said to be acquired by quasi usucapio, probably in the same time as sufficed to give a title to immovables. There was also a longissimi temporis possessio of thirty years, applicable to both movables and immovable, and requiring nothing but bona fides on the part of the possessor. Where the right sought to be established was claimed against the Church, a still longer period of forty years (at one time a hundred) was necessary. Immemorial prescription was required in a few cases of a public character, as roads.^[2] Praescriptio was also the term applied to lapse of time as barring actions upon contracts or torts under various provisions corresponding to the English Statutes of Limitation. The prescription of Roman law (and of modern systems based upon it) is thus both acquisitive and extinctive. It looks either to the length of time during which the defendant has been in possession, or to the length of time during which the plaintiff has been out of possession. In English law the latter kind of prescription is called limitation. The tendency of law is to substitute a definite for an indefinite period of prescription.

In English law prescription is used in a comparatively narrow sense. It is acquisitive only, and is very limited in its application. A title by prescription can be made only to incorporeal hereditaments—that is, in legal language, hereditaments that are or have been append ant or appurtenant to corporeal hereditaments—and to certain exemptions and privileges.^[3] The rights claimable by prescription for the most part consist of rights in alieno solo. The most important are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities and rents. Land or movables cannot be claimed by prescription. The foundation of prescription is the presumption of law that a person found in undisturbed enjoyment of a right did not come into possession by an unlawful act (see Williams, Rights of Common, 3). In the English courts this presumption was, perhaps still is, based upon the fiction of a lost grant, viz. that there had been a grant of the hereditament by a person capable of granting it to a person capable of taking it, and that the grant had been lost. The jury were instructed to find the loss of a once existing grant in whose existence no one really believed. The enjoyment of the right must have been from a time whereof the memory of man runneth not to the contrary. The period of legal memory was after a time necessarily fixed for purposes of convenience at a certain date. The date adopted varied at first with the time during which the demandant in a writ of right must have proved seisin in himself or his 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 interpreted to mean the first year of the reign of Richard I. (1189). 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 facie evidence of enjoyment from time immemorial. But evidence of the beginning of the enjoyment at however remote a date, if subsequent to I Richard 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 à prendre and easements a change was made by the Prescription Act 1832 (extended to Ireland by an act of 1858, but not to Scotland). By that act claims to rights of common and other profits ti. preudre are not to be defeated after thirty years' enjoyment by any person claiming right thereto without interruption 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 agreement 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 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, non 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). An act to define the period of prescription for a modus decimandi, or an exemption from tithes by composition, was passed the same year. The Prescription Act is only supplemented 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 principal 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. (2) The enjoyment must (except in the case of light) be as of right—that is to say, peaceable, openfy used, and not by licence. (3) The prescription must be certain and reasonable. Inhabitants cannot, however, claim by prescription, as they are an uncertain and fluctuating body, unless under a grant from the Crown, which constitutes them a corporation for the purposes of the grant. (4) The prescription must be alleged in a due estate or in a man and his ancestors. Prescription in a due 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 had (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. Corporations, however, occasionally claim by a prescription analogous to this, viz. in the corporation and its predecessors. 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 (1540) no person can make any prescription by the seisin or possession of his ancestor unless such seisen or possession had 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 carefully 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. 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 to erect stalls at statute sessions for hiring servants was held to be bad, because such sessions were introduced by the Statute of Labourers, 23 Edw. III. st. 1 (Simpson v. Wells, L.R., 7 Q.B., 214). Some rights may be claimed by custom which cannot be claimed by prescription, e.g. a right of inhabitants to dance on a village green, such a right is not connected with the enjoyment of land. On the other hand, profits à prendre can be claimed by prescription but not by custom, unless in two or three exceptional cases, such as rights of copy holders to common in the lord's demesne, or to dig sand within their tenements, rights to estovers in royal forests, and rights of tin-bounders in Cornwall.

United States.—The Law of the United States (except in Louisiana) is based upon that of England, but the period of enjoyment necessary to found a title by prescription varies in the different states. An easement or profit a prendre is acquired by twenty years' enjoyment in most states, following the English common law rule. In Louisiana the period varies according to the subject from three to thirty years, and property other than incorporeal hereditaments may be claimed by prescription as in Roman law (see Kent's Comm. iii. 442).

International Law uses the term “ prescription " in its wider or Roman sense. “ The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other ” (Wheaton, Int. Law, § 165). Historic instances of rights which were at one time claimed and exercised by prescription as against other nations are the sovereignty of Venice over the Adriatic and of Great Britain over the Narrow Seas, and the right to the Sound dues long exacted by Denmark. But such claims were rejected by the highest authorities on international law (e.g. Grotius), on the ground that they were defective both in justus titulus and in de facto possession. There is no special period fixed, as in municipal law, for the acquirement of international rights by lapse of time. In private international law prescription is treated as part of the lex fori or law of procedure. (J. W.)

Scotland.—In the law of Scotland “ prescription" is a term of wider meaning than in England, being used as including both prescription and limitation of English law. In its most general sense it may be described as the effect which the law attaches to the lapse of time, and it involves the idea of possession held by one person adverse to the rights of another. Though having its basis in the common law, its operation was early defined by statute, and it is now in all respects statutory. Prescription in Scots law may be regarded (1) as a mode of acquiring rights—the positive prescription; (2) as a mode of extinguishing rights—the negative prescription; (3) as a mode of limiting rights of action—the shorter prescriptions. It must, however, be observed with reference to this division that the distinction between (1) and (2) is rather an accidental (due to a loose interpretation of the language of the act of 1617, c. 12) than a logically accurate one. It is, moreover, strictly confined to heritable rights, having no application in the case of movable property. But, though the distinction has been complained of by the highest authority as tending to create embarrassment in the law (see opinion of Lord Chancellor St Leonards in Dougall v. Dundee Harbour Trustees, 1852, 24 Jurist, 385), it is now too well settled to be departed from.

1. Positive Prescription.—The positive prescription was introduced by the act of 1617, c. 12. After setting forth in the preamble the inconvenience resulting from the loss»of titles and the danger of forgery after the means of improbation are lost by the lapse of time, it enacts that whatever heritages the lieges, their predecessors or authors have possessed b themselves or others in their names peaceably, in virtue of infeftments for the space of forty years, continually and together, from the date of their said infeftments, and without any lawful interruption during the said space, they shall not be disturbed therein, provided they produce a written title on which their possession has proceeded. Such written title must be either a charter and sasine preceding the forty years, or, when no charter is extant, instruments of sasine proceeding upon retours or precepts of ctare constat. Though the statute in its literal construction only applied to such heritable subjects as had been conveyed by charter and sasine, it was at an early date interpreted so as to include other heritable rights, as servitude's, tacks, public rights of way, &c., where no charter could be supposed to exist. The act of 1617 was so well framed that it continued to regulate the prescription of land rights till 1874. By the Conveyancing Act of that year (37 & 38 Viet. c. 94, § 34) the period of prescription was shortened from forty years to twenty. It was provided that possessions for twenty years upon “ an ex facie valid irredeemable title recorded in the appropriate register of sasines ” should in future give the same right as forty years' possessions upon charter and sasine under the earlier law. The act of 1874 does not, however, apply to all the cases which fell under the act of 1617. Thus it has been decided that twenty years' possession on a charter of adjudication followed by sasine and a declaratory of expiry of the legal is insufficient to give an unchallengeable right, an adjudication not being an “ ex facie irredeemable title " (Hinton v. Connel's Trustees, 1883, to Rett1e's Reports, p. 1110). It is further specially provided by the act of 1874 that the twenty years' prescription is not to apply to servitude's, rights of way, and public rights generally. The following rules apply to the positive prescription. (a) The possession which is required for it must be peaceable, continuous (“ continually and together,” as the act of 1617 has it), and uninterrupted. (b) The prescription runs de momento in momentum. (c) The person against whom the prescription runs must be major and sui juris—a rule which, as regards minority, was specially provided for by the act of 1617, and as regards other cases of incapacity by the application of the principles of the common law. Under the Conveyancing Act, however, it is provided that in all cases where the twenty years' prescription applies, the lapse of thirty years is to exclude any plea on the ground of minority or want of capacity.

2. Negative Prescription.—This prescription was introduced by the act of 1460, c. 28, and substantially re-enacted by the act of 1474, c. 55. At first restricted to personal claims of debt, it was gradually extended in practice and ultimately made applicable to heritable bonds and other heritable rights by the above-mentioned act of 1617. By the act of 1469 it is declared that the person having interest in an obligation must follow the same within the space of forty years and take document thereupon, otherwise it shall be prescribed. The negative prescription accordingly extinguishes in toto the right to demand performance of an obligation after forty years, the years bein reckoned from the day on which fulhlment of the obligation can be first demanded. The lapse of this period of time creates a conclusive presumption—one incapable of being redargued—that the debt or obligation has been paid or fulfilled. But it must be kept in view that the negative prescription does not per se—without the operation of the positive—establish a right to heritable property (Erskine, Inst. b. iii. tit. 7, § 8). As regards the character of the prescription, it is requisite, in the same way as in the case of the positive, that the years shall have run continuously and without interruption, i.e. without any act done on the part of the creditor which indicates his intention to keep alive the right. Such interruption may, for instance, take place by the payment of interest on the debt, or citation of the debtor in an action for the debt, or by a claim being lodged in the debtor's sequestration. In the same way as in the positive, the currency of the negative prescription is suspended by the debtor being minor or non valens agere.

3. Shorter Prescriptions.—There are certain short prescriptions recognized by Scots law—corresponding to the limitations of English law—which operate not as extinguishing rights but as excluding the ordinary means of proving them. The following require to be noticed. (a) Vicennial prescription protecting a person who has been served as heir for twenty years against action by any other person claiming to be heir. (b) Decennial prescription requiring all actions by minors against their tutors and curators, and vice versa, to be prosecuted within ten years from the expiration of the guardianship. (c) Septennial prescription providing that no person bind himself, under certain exceptions, for and with another, conjunctly and severally, in any bond or contract for sums of money shall be bound for more than seven years after the date of the obligation. There are also other shorter prescriptions limiting rights of action in different matters as the sexennial, quinquennial and triennial.

1. “ Praescriptiones autem appellatas esse ab eo quod ante formula praescribuntur ” (Gajus iv. § 132).
2. “ Viae vicinales, quarum memoria non extat ” (Dig. xlii. 7, 3).
3. Prescription seems at one time to have borne a wider meaning. A claim by prescription to land is mentioned in 32 Hen. VIII. c. 2. And it seems that tenants in common may still make title to land by prescription (Littleton's Tenures, § 310).