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 .
The common law rule is that a prescriptive right appurtenant to land can be asserted only in favor of one who has an estate in fee simple in the land, for the benefit of which the user is made, and that if a tenant for life or years undertakes to assert such a right, he must assert it as having been acquired by the tenant in fee simple, under whom he claims.22 The right is appurtenant to the land rather than to any particular estate in the land. An easement in gross acquired by prescription, on the other hand, belongs to the per18. Nichols v. Boston, 98 Miss. 39, 93 Am. Dec. 732; Attorney General v. Revere Copper Co., 152 Mass. 444, 9 L. R. A. 510, 25 N. E. 605: People v. Page. 39 N. Y. App. Div. 110, 56 N. Y. Supp. 834, 58 N. Y. Supp. 239 (semble). Compare Kirschner v. Western & A. R. Co., 67 Ga. 760.
19. Woodworth v. Raymond, 51 Conn. 70; Attorney General v. Revere Copper Co., 152 Mass. 444, 9 L. R. A. 510, 25 N. E. 605; Brookline v. Mackintosh, 133 Ma»3. 215, 225 (pollution of stream); Felton v. Simpson, 11 Ired L. (33 N. C.) 84; Hume v.
Rogue River Packing Co., 51 Ore. 237, 31 L. R. A. (N. S.) 396, 131 Am. St. Rep. 732, 83 Pac. 391, 92 Pac. 1065, 96 Pac. 865; Goodman v. Saltash Corp. 7 App. Cas. 633; Neaverson v. Peterborough Rural Council (1902) 1 Ch. 557.
20. Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243
21. Burbank v. Fay, 65 N. V. 57; Rockdale Canal Co. v. Rad-cliffe, 18 Q. B. 287.
22. 2 Blackst. Comm. 265; God-dard, Easements (6th Ed.) 218; Perley v. Hilton, 55 N. H. 444; Smith v. Kinard. 2 Hill L. (S. C.) 642, note, See Wheaton v.
Son who exercised the user during the prescriptive period, and is ordinarily purely personal to him.22a of the right,26 though it may be regarded as tending to show that the user was permissive.27
That a municipality may acquire by prescription the right to use the land of an individual for a municipal purpose has been recognized,23 but the user of the land for the prescriptive period by individual inhabitants of the municipality is insufficient to create an easement in favor of the municipality.24
The public cannot, strictly speaking, acquire rights by prescription. Since a grant cannot be made to the public, there is no room for the presumption of a grant in such case. The analogy of prescription has however been freely applied in the case of highways, on the theory that an adverse user of private land by the public for the prescriptive period gives rise to a presumption that the land was dedicated for a highway, and the term prescription is almost invariably used in that connection. The matter of the establishment of a highway by reason of adverse user on the part of the public is discussed at the end of this chapter.