This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Necessity of peaceable user.
Interruption by landowner.
Protests and interference by landowner.
Reciprocal prescriptive rights.
User by public necessary.
Adverseness of user.
Necessity of claim of right.
Necessity of notice of user.
Continuity of user.
Width of highway.
Though the Statute of Westminster I., establishing a date back of which the pleader could not go,1 applied to actions for the recovery of the land only, and not to those for the recovery of incorporeal tilings, "the judges, with that assumption of legislative authority which has at times characterized our judicature, proceeded to apply the rule as to prescription established by the statute to incorporeal hereditaments, and, among others, to easements."2 Subsequently, when, by the Statute of 32 Hen. VIII. c. 2, and 21 Jac. I. c. 16, the time for bringing a writ of right or a possessory action to recover land was reduced to sixty and twenty years, respectively, it might have been expected that the judges would as in the case of the earlier act, apply the analogy of these acts to incorporeal things. This, however, it seems, they did not do,3 but they effected the same end by the adoption of the fiction that a grant of the right would be presumed if it had been exercised for a period of twenty years, this doctrine of a lost grant being in reality prescription, under another name, shortened in analogy to the period of limitation fixed by the Statute of James.4 In the case of prescription, as if existed by analogy to the early statute, the exercise of the right from the date named conferred an unimpeachable title. Whether this presumption of a lost grant, on the other hand, had a like effect, that is, whether it was a conclusive presumption, or could be rebutted by evidence that there was no such grant, is a question on which there was great doubt. In practice it seems to have been the custom for the court to instruct the jury to find the existence of such a grant, even though there was evidence to show that it did not exist. Eventually the Statute of 2 & 3 Win. IV. c. 71 (A. D. 1832), termed the "Prescription Act," was
1. Ante, Sec. 500.
2. Cockburn, C. J., in Angus v. Dalton, 3 Q. B. Div. S5, 104.
3. Gale, Easements (8th Ed.), 191, citing statements to that effect in Angus v. Dalton, 4 Q. B. Div. at pages 170, 199, per Thesiger and Brett, L. J., and in 6 App. Cas. at page 788, per Fry, J. But that the periods fixed by these statutes was applied in determining the period of "immemorial user" for the purpose of prescription, see Yard v Ford, 2 Wms. Saund. 175, note; Gale, Easements, 190; Coolidge v. Learned, 8 Pick. (Mass.) 504.
4. Gale, Easenients, 192. See Coolidge v. Learned, 8 Pick (Mass.) 504.
2 R. P. - 53 passed, "with the view," it is said, "of putting an end to the scandal on the administration of justice which arose from thus forcing the consciences of juries."5
In this country the courts have usually followed the analogy of the statute of limitations applicable to actions for the recovery of land, with the effect that one who has exercised as of right a user in another's land for the statutory period, is regarded as having a right of user to that extent.6 And while, quite frequently, it is said that from such user a grant will be presumed, the presumption is in effect a positive rule of law, and evidence that no grant was made would be immaterial.7 In other words, it is conclusively presumed from the landowner's acquiescence for the statutory period in the other's user of his land, he having the right and power to stop such user, that the user is a rightful user.8
5. Cockburn, C. J., in Angus v. Dalton, 3 Q. B. 105. And see Bright v. Walker, 1 Cromp. Mees. & Ros. 211, per Parke, B., and editorial note 29 Harv. Law Rev. 88.
6. Legg v. Horn, 45 Conn. 409; Coolidge v. Learned, 8 Pick. (Mass.) 504; Melvin v. Whiting, 10 Pick. (Mass.) 295; Mueller v. Fruen, 3 Minn. 273; Carlisle v. Cooper, 19 N. J. Eq. 256; Cobb v. Davenport, 32 N. J. L. 369; Corning v. Gould, 16 Wend. (N. Y.) 531; Nicholls v. Wentworth, 100 N. Y. 455, 3 N. E. 482; Krier's Private Road, 73 Pa. St. 109.
7. Smith v. Hawkins, 110 Cal. 122, 42 Pac. 453; Coolidge v. Learned, 8 Pick. (Mass.) 504; Wallace v. Fletcher, 30 N. H. 434; Lehigh Valley R. Co. v. Mcfarlan, 43 N. J. L. 605; Ward v. Warren, 82 N. Y. 265; Pavey v. Vance, 56 Ohio St. 162, 46 N.
E. 898; Okeson v. Patterson, 29 Pa. St. 22; Carter v. Tinicum Fishing Co. 77 Pa. St. 310;; Lewis v. San Antonio, 7 Tex. 288; Tracy v. Atherton, 36 Vt. 503; Cornett v. Rhudy, 80 Va. 710; Tyler v. Wilkinson, 4 Mason 397, Fed Cas. No. 14312. There are suggestions to the contrary in Lanier v. Booth, 50 Miss. 410; Parker v. Foote, 19 Wend. (N. Y.) 309.
8. See Sturges v. Bridgman, 11 Ch. D. 852, 863; Dalton v. Angus, 6 App. Cas. 740, 773, 803, 823; Warren v. Jacksonville, 15 111. 236; Gayetty v. Bethune, 14 Mass. 49, 7 Am. Dec. 188; Cobb v. Davenport, 32 N. J. L. 369; Wallace v. Fletcher, 30 N. H. 434; Jones v. Crow, 32 Pa. St. 398; Lamb v. Crosland, 4 Rich. Law (S. C.) 536; Dodge v. Stacy, 39 Vt. 559.