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 statutory exceptions in the statutes of limitations in favor of persons under legal disability are applied by analogy, in the case of prescription, when the owner of the land is under disability, and they are usually applied to the same extent, and subject to the same restrictions.63 So, while the statutory period does not begin to run during the disability of the landowner, if this existed when the right of action on account of the user of the land accrued,64 a disability thereafter arising will not, by the weight of authority, extend the statutory period,65 and one disability cannot be tacked to another.66
61. See ante, Sec. 508.
62. Durkee v. Jones, 27 Cal. 59, 60 Pac. 618.
63. Occasionally the exception in favor of a person under disability is based on the theory that a grant by one who has no power to make a grant can not be presumed. Watkins v. Peck, 13 N. H. 360; Mckinney v. Duncan, 121 Tenn. 265, 118 S. W. 683.
64. Lamb v. Crosland, 4 Rich. Law (S. C.) 536; Melvin v. Whiting, 13 Pick. (Mass.) 185;
Through the drain is a more difficult one, and similar questions as to whether the right acquired by a prescriptive user would be, in the particular case, sufficient to justify a slight extension of the user, or a user in a slightly different manner, will readily suggest themselves. The question appears ordinarily to be, what are the nature and extent of the right, the existence of which is to be presumed from the user during the prescription period.70 Does it, in the particular case, include a right of user which differs in degree but not in kind from the former user and, conceding that it does, what constitutes a difference in degree merely! Occasionally, when there has been a change' or increase of user since the prescriptive period, the court undertakes to determine the permissibility of such new user by the consideration whether it involves an increase in the burden upon the servient tenement.71 Such a consideration, however, would seem to be material merely in determining the scope of the prescriptive right.72 A user which involves a substantial increase of burden upon the servient tenement should not ordinarily be regarded as within the prescriptive right, since such increased burden was not what the landowner acquiesced in. But, as before indicated, the nature or circumstances
Edson v. Munsell, 10 Allen (Mass.) 557.
65. Tracy v. Atherton, 36 Vt. 503; Mebane v. Patrick, 46 N. C. 23; Wallace v. Fletcher, 30 N. H. 434; Edson v. Munsell, 10 Allen (Mass.) 557; State v. Macy, 72 Mo. App. 427. Contra, Lamb v. Crosland, 4 Rich. Law (S. C.) 536; Thorpe v. Corwin. 20 N. J. L. 311. See Melvin v. Whiting, 13 Pick. (Mass.) 184, 185.
66. Reimer v. Stuber, 20 Pa. St. 458, 59 Am. Dec. 744.