The difference between limitation and prescription lies in this: Limitation applies to a claim to possession of the land itself.

Prescription applies to a claim to some right over land in the possession of another, such as an easement or a profit.

Prescription is founded on the rule that if a person and his predecessors have used a certain right from time immemorial (which is fixed at the first year of Richard I., 1195), his right becomes absolute (a).

Prescription is of two kinds -

(1) Prescription in gross, where a man claims that he and his ancestors have used a certain right.

(2) Prescription "in a que estate" (or prescription of a right appurtenant), where a man claims that he and all those who have held a particular piece of land before him have used the right.

In both these cases if the person claiming the right can prove that he has used the right for 20 years, he thereby raises a presumption that he has used it from time immemorial.

The owner of the land can defeat this claim in

(a) It is then presumed that the right was granted to him and the grant has been lost.

several ways, but Lis right to do so Las been somewhat restricted by statute.

The history of the present rule is as follows: -

At Common Law the owner could defeat the claim of a person who had shown 20 years' user by showing -

(i.) That there was a time, within legal memory, when the right did not exist.

E.g. A claims a right of way between two fields across the land of B, and shows that he has used it for more than 20 years. If B can prove that (say) 100 years ago there was a deep river or pond on the land across which the right is claimed, A's claim is rebutted.

(ii.) By showing that the right was used by the verbal permission of the owner, or under an agreement for a limited time, or other similar arrangements, or

(iii.) By showing that the right was used under a written grant, which has now ceased or can be revoked. ,

This is still the law as to prescription in gross, but in case of prescription in a que estate the common law rules are now modified and restricted by the Prescription Act, 1832(A), as follows: -

I. In case of profits a prendre (c) -

(a) When the right has been enjoyed for 30 years by a person claiming a right to enjoy it, the claim cannot be rebutted simply by showing that there was a time within legal memory when the right did not exist.

(A) When the right has been enjoyed in the same way for 60 years, the claim becomes absolute, and can only be rebutted by showing a written grant (d).

(b) 2 & 3 Will. IV. c. 71. (c) See p. 178. (d) S. 1.

That is, after the 30 years, one of the Common-law methods of disproving the right is taken away.

After the 60 years, there is only one way left.

Thus, if A claims a right to quarry for stone on B's land.

A proves that he has exercised the right for 20 years.

B can rebutt his claim by showing (as in (i.)) that no stone was dug 100 years ago, or by any other means such as (ii.) and (iii.).

A then goes on and proves user for 30 years.

B can rebut his claim by showing that he was acting under a verbal permission, or any other similar means, as in (ii.) or (iii.).

A then proves that he has used the quarry for more than 60 years. B cannot now disprove the claim, unless he can produce a written grant (as in iii.).

II. In case of Easements (e), the rule is the same, but the periods are 20 years and 40 years.

Enjoyment by a person who claims a right to enjoy is sometimes called "User as of right" which means, peaceable, open use, as if claiming a right to use, and not merely by permission of the owner (nee vi, nee clam, nee pręcario).

III. In case of Light (f), mere user (i.e. not necessarily "as of right ") uninterrupted for 20 years gives an absolute right to light.

No interruption will stop the acquisition of the right unless it is submitted to or acquiesced in by the person interrupted for one year after he has received notice of the interruption.

Thus, if A has had a window in his house overlooking B's land for 19 years and 1 day, he cannot be prevented by mere obstruction from acquiring a right to light.

But the 20 years user must be "next before action brought." This will best be explained by the case of Hyman v. Van den Bergh, [1908] 1 Ch. 167.

(e) S. 2.

(/) S. 3.

In 1896 Hyman had windows in a cowshed which had overlooked V. B's land for more than 19 years. In 1896 V. B began to obstruct the lights, and Hyman agreed to pay him 1s. a year for the use of the lights.

The Is. was never paid.

In 1907 V. B again obstructed the lights, and Hyman brought an action to restrain him.

Held, for some time after 1896 there had been no user "as of right," but only by permission. Therefore Hyman had not enjoyed the right uninterruptedly for the 20 years next preceding the action, and had no right to light.

The amount of light which a person becomes entitled to, after user for 20 years, is the amount which he has enjoyed during that time, but not more than is sufficient to make his house reasonably fit for ordinary occupation. That is to say, he cannot object to any obstruction of the light unless it amounts to a nuisance (g).

If the building which has enjoyed the light is pulled down and re-built, the new building is entitled to enjoy exactly the same cones of light. But it must be proved that the new windows receive part of the same cone of light as was received by some part of the old windows (h).

Disabilities

If the owner of land is under a disability, the periods of 20 years and 30 years do not run until the disability ceases.

Nor do they run against a remainderman during the life of a tenant for life (i).

But the periods of 40 years and 60 years continue to run notwithstanding any disability of the owner of the land (k).

(g) Home and Colonial Stores v. Colls, [1904] A. C. 179. (h) For the meaning of a "cone" of light, see Andrews v. Waite, [1907] 2 Ch. 500, and especially the plan on p. 503. (i) S. 7.

(k) S. 7.

Exception. - In the case of a way or a watercourse, the person entitled to a reversion after a lease (for more than 3 years or for a life) has 3 years in which to sue, after the lease terminates, even though the 40 years has expired (l).

Note. - This only applies to (i.) ways and watercourses,

(ii.) reversion, not remainder (m), and

(iii.) the period of 40 years (not the period 60 years).

Kilgour v. Gaddes, [1904] 1 K. B. 457.

In 1850, Sir J. Graham granted a lease of one house to K, and the next-door house to G, for 99 years.

From 1850 to 1902 G used a pump standing on part of the land leased to K.

G claimed a right to use the pump.

Held, as against K, so long as the lease lasted G had acquired a right to use the pump by prescription.

But it was admitted that Sir J. Graham or his heirs will be entitled to stop G from using it if they bring an action against him within 3 years after the end of the 99 years' lease (1949-1952).

Abandonment. - These rights when once acquired are not lost by mere non-user, unless they can be shown to have been abandoned. Mere non-user for more than 20 years is some evidence of abandon ment, but it is generally necessary to show some positive act of abandonment.

As in Moore v. Rawson (1824), 3 B. & C. 332.

Moore had a wall with windows more than 20 years old, facing Rawson's land. He pulled down the wall and built a stable with no windows on that side. 14 years later Rawson built on his land close to the stable wall. 3 years after that, Moore opened a window in his stable wall, and sued Rawson for obstructing the light.

Held, the right to light had been abandoned.

(l) S. 8.

(to) Laird v. Briggs (1881), 19 Ch. D., p. 22.