Prescription [fr. pr'scribo, Lat.], title produced and authorised by long usage. It is known in the Roman Law as usucapio.
Title by prescription arises from a long-continued and uninterrupted possession of property, and is thus defined by Sir Edward Coke (Co. Litt. 113 b), Pr'scriptio est titulus ex usu et tempore substantiam capiens ab authoritatelegis. (Prescription is a title taking his substance of use and time allowed by the law.)
Every species of prescription, by which property is acquired or lost, is founded on the presumption that he who has had a quiet and uninterrupted possession of anything for a long period of years is supposed to have a just right, without which he would not have been suffered to continue in the enjoyment of it. For a long possession may be considered as a better title than can commonly be produced, as it supposes an acquiescence in all other claimants; and that acquiescence also supposes some reason for which the claim was foreborne, 1 Cruise's Dig., tit. Xxxi., 'Prescription,' c. i., s. 4, p. 421.
There are two kinds of prescription, viz.: (1) negative, which relates to realty or corporeal hereditaments, whereby an uninterrupted possession for a given time gives the occupier a valid and unassilable title, by depriving all claimants of every stale right and deferred litigation, now mainly governed by the (English) Real Property Limitation Act, 1833, (3 & 4 Wm 4, c. 27); as amended by the (English) Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57); and (2) positive, which relates to incorporeal here-ditaments, and originated at the Common Law from immemorial or long usage only.
Positive prescription has been greatly modified by the Prescription Act, 1832 (2 & 3 Wm. 4, c. 71).
The most important rules of the Common Law concerning positive prescription were these:--
(1) The only property claimable by positive pre-scription is an incorporeal hereditament.
(2) It must be founded on actual usage or enjoyment; for a mere claim will not establish the right.
(3) The use or enjoyment must have been continuous and peaceable; although an interruption of comparatively short duration will not destroy it.
(4) The usage must have been from time immemorial, or from time whereof the memory of man runneth not to the contrary, which is held to be from the beginning of the reign of Richard I.
(5) The prescription must be certain and reasonable.
Blackstone, however, states the rules as t prescription somewhat differently; see 2 Bl.Com., pp. 263 et seq.
The Prescription Act, 1832 (2 & 3 Wm. 4, c. 71) (Lord Tenterden's Act), for shortening the time of prescription in certain cases enacts in substance as follows:--
(1) Claims to right of common and other profits a prendre (except tithes and rent) are prima facie indefeasible after thirty years' uninterrupted enjoyment, and absolutely indefeasible after sixty years, except by showing that the enjoyment was by some agreement in writing.
(2) Claims to ways or 'other' easements or use of water are prima facie indefeasible after twenty years' uninterrupted enjoyment, and absolutely indefeasible after forty years, except by showing that the enjoyment was by some agreement in writing.
(3) Claims to light for a building uninterruptedly enjoyed for twenty yeas are absolutely indefeasible after twenty years' enjoyment, except by showing that the enjoyment was by some agreement in writing. See Richardson v. Graham, (1908) 1 KB 39, and LIGHT.
By s. 4 of the Prescription Act, 1832, the periods are to be taken to be the period next before some suit or action relating to the right in dispute, and no act or matter shall be deemed to be an 'interruption' within the meaning of the statute unless the same shall have been submitted to or acquiesced in for one year.
See Gale on Easements; Goddard on Easements; Dalton v. Angus, (1881) 6 App Cas 740; WAY and addenda.
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