Front Page Titles (by Subject) CHAPTER XVII.: III. OF TITLE BY PRESCRIPTION. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XVII.: III. OF TITLE BY PRESCRIPTION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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III. OF TITLE BY PRESCRIPTION.
A third method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.(a) At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for.
And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to a person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege.(b)1 As for example; if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held(c) to be a lawful usage;) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the *[*264tenant, who is seised of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath:(d) which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended(e) for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made.(f)
Secondly, as to the several species of things which may, or may not, be prescribed for: we may, in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right of way, a common, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had.(g) For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin, and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be *[*265laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates.(h) For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord’s estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life.2 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed.3 Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription.(i)4 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchise of deodands, felons’ goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record.(k) 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds,) nothing **266]is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connection; but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.(l) Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly,5 we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal.6
[(a) ] See book i. page 75, &c.
[(b) ] Co. Litt. 113.
[1 ] In order to determine whether rights are holden as a custom or as a prescription, it is necessary to advert merely to the manner in which they are holden,—whether as a local usage, or as a personal claim, or dependent on a particular estate. All rights which may be holden as a custom may be holden as a prescription, but not vice versa. Perley vs. Langley 7 N. Hamp. 233.—Sharswood.
[(c) ] 1 Lev. 176.
[(d) ] 4 Rep. 32.
[(e) ] Co. Litt. 113.
[(f) ] This title of prescription was well known in the Roman law by the name of usucapio, (Ff. 41, 3, 3,) so called because a man that gains a title by prescription may be said usu rem capere.
[(g) ] Dr. and St. Dial. 1, c. 8. Finch, 132.
[(h) ] 4 Rep. 31, 32.
[2 ] Thus, in prescribing for common appurtenant, a man avers his seisin in fee of the land to which he claims his common, and then says that he and all those whose estate he has in the land, from time whereof the memory of man is not to the contrary, had, and of right ought to have had, common of pasture in the place, where, &c. for his cattle levant and couchant, in the land whereof he was so seised. 1 Saund. 346. This is termed prescribing in a que estate, from the words in italic. Id. note 2. 4 T. R. 718, 719. Cro. Car. 599. If the party claims the easement as a member of a corporation, he must then prescribe under the corporation, stating that the same have immemorially been entitled to have for themselves and their burgesses common of pasture, and then aver that he was a burgess. 1 Saund. 340, b. Where a copyholder claims common or other profit in the lord’s soil, he cannot prescribe for it in his own name, on account of the baseness and weakness of his estate, which, in consideration of law, is only a tenancy at will: neither can he prescribe in the lord’s name, for he cannot prescribe for common or other profit in his own soil: therefore of necessity the copyholder must entitle himself to it by way of custom within the manor. But where a copyholder claims common or other profit in the soil of a stranger, which is not parcel of the manor, he must prescribe in the name of the lord; namely, that the lord of the manor and his ancestor, and all those whose estate he has, have had common, &c. in such a place for himself and his customary tenants, &c., and then state the grant of the customary tenement; for the lord has the fee of all the copyholds of his manor. 4 Rep. 31, b. 6 Rep. 60, b. Hob. 86. Cro. Eliz. 390. Moore, 461. 1 Saund. 349.—Chitty.
[3 ] The general rule with regard to prescriptive claims is, that every such claim is good if by possibility it might have had a legal commencement, (1 Term. R. 667;) and from upwards of twenty years’ enjoyment of an easement or profit a prendre, grants, or, as lord Kenyon said, even a hundred grants, will be presumed, even against the crown, if by possibility they could legally have been made. 11 East, 284, 495. Thus a fair or market may be claimed by prescription, which presumes a grant from the king, which by length of time is supposed to be lost or worn out, (Gilb. Dist. 22;) but if such a grant would be contrary to an express act of parliament it would be otherwise. 11 East, 495. But an exception to the general rule is the claim of toll thorough, where it is necessary to show expressly for what consideration it was granted, though such proof is not necessary in respect of toll traverse.* 1 T. R. 667. 1 B. & C. 223. An ancient grant without date does not necessarily destroy a prescriptive right; for it may be either prior to time of legal memory or in confirmation of such prescriptive right, which is matter to be left to a jury. 2 Bla. R. 989. Nor will a prescriptive right be de stroyed by implication merely in an act of parliament. 3 B. & A. 193.—Chitty.
[* ] A toll traverse is expressly defined to be “a payment of a sum of money for passing over the private soil of another, or in a way not being a high street.” A toll thorough is taken for passing over a highway, where the owner of the toll claims nothing in the soil.—Sharswood.
[(i) ] 1 Ventr. 387.
[4 ] The use or possession on which a title by prescription is founded must be uninterrupted and adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence or of any thing short of a grant. An uninterrupted adverse use and enjoyment of an easement for a period of twenty years, unexplained, is sufficient to warrant the presumption of a grant by a jury. Gayetty vs. Bethune, 14 Mass, 49. Kirk vs. Smith, 9 Wheat. 241. Rowland vs. Wolfe, 1 Bailey, 56. Hogg vs. Gill, 1 McMullan, 329. Twenty years adverse user of a way under claim of right is sufficient to authorize the presumption of a grant. And that it was adverse may be presumed if the user was notorious and in the ordinary manner, and not under circumstances showing it to have been by leave and favour, or by the curtesy of the owner. Esling vs. Williams, 10 Barr, 126. The bare non-user for the legal period of presumption of an easement charged upon land does not necessarily raise a presumption of its extinguishment, unless there be some act done by the owner of the land charged inconsistent with, or adverse to, the existence of the right. Buckholder vs. Sigler, 7 W. & S. 154. Public rights cannot be destroyed by long-continued encroachments: at least, the party who claims the exercise of any right, inconsistent with the free enjoyment of a public easement or privilege, must put himself upon the ground of prescription, unless he has a grant or some valid authority from the government. Arundel vs. McCullough, 10 Mass. 70. Commonwealth vs. McDonald, 10 S. & R. 401. Commonwealth vs. Alburger, 1 Whart. 486.—Sharswood.
[(k) ] Co. Litt. 114.
[(l) ] Litt. 183. Finch, L. 104.
[5 ] Another rule may be added, viz., that a person ought not to prescribe for that which is of common right, and which the law gives. Willes R. 268. Bac. Abr. Common. A.—Chitty.
[6 ] Immemorial usage, or usage from time whereof the memory of man runneth not to the contrary, was formerly held to be when such usage had commenced not later than the beginning of the reign of Richard I. But as in most cases it was impossible to bring proof of the existence of any usage at this early date, the courts were wont to presume the fact upon proof only of its existence for some reasonable time back, as for a period of twenty years or more, unless indeed the person contesting the usage were able to produce proof of its non-existence at some period subsequent to the beginning of the reign of Richard I., in which case the usage necessarily fell to the ground. The proof even of a shorter continuance than for twenty years was enough to raise the presumption, if other circumstances were brought in corroboration, indicating the existence of an ancient right. But the prescription was defeated by proof that the enjoyment, whether for twenty years or any other period within time of legal memory, took place by virtue of a grant or license from the party interested in opposing it, or that it was without the knowledge of him or his agents during the whole time that it was exercised. Bright vs. Walker, 4 Tyr. 509. To remedy the inconvenience and injustice which sometimes followed from this state of the law, the prescription act, 2 & 3 W. IV. c. 71, was passed, which is entitled “an act for shortening the time of prescription in certain cases.” The first section enacts that no claim 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 or enjoyed from or upon any land of the sovereign or parcel of the duchies of Lancaster and Cornwall, or of any ecclesiastical or lay person, (excepting certain matters to be referred to immediately,) and except tithes, rents, and services, shall, when such right shall have been enjoyed without intermission for thirty years, be defeated or destroyed by showing only that such right was first enjoyed at any time prior to such period of thirty years; but such claim may be defeated in any other way by which it is now liable to be defeated; and when such right shall have been enjoyed for sixty years, it shall be deemed indefeasible, unless it appear that it was enjoyed by some consent or agreement expressly made for the purpose by deed in writing. The matters excepted in the first section are,—1. Claims to any way or other easement, or to any water-course, or the use of any water, for which a precisely similar enactment is made, except that, instead of the terms of thirty and sixty years, the shorter terms of twenty and forty years are made sufficient to support such claim; and, 2. Claims to the use of light, for which an enjoyment of twenty years constitutes an indefeasible title, unless it appear that the right was enjoyed by agreement expressly made for that purpose by deed in writing. It is also enacted by section 5 that, where formerly it would have been necessary in pleading to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment as of right during the periods mentioned in the act as applicable to the case, and without claiming in the name or right of the owner of the fee, as formerly was, and still is usually, done.—Kerr.