Prescription (in the Roman law, praescrip-tio), a title acquired by possession during the time and in the manner fixed by law. It is a natural and immutable principle, says Domat, that the owner of a thing shall remain so, and enjoy therefore all the rights of ownership, until his property is divested either by his voluntary act of alienation, or in some other legal mode. And it is another natural rule of the law, that he who has been for a long time in possession of a thing shall be regarded as the owner of it; because, in the first place, men are naturally careful not to give up what belongs to them, and in the second place, because it would be unreasonable to presume without proof that a possessor is a usurper. Yet, if the former of these rules, he continues, be carried to its furthest extent, it will follow that he who can show that either he or they through whom he claims have been owners of an estate will recover it from the possessor, no matter how long the latter or his ancestors may have been in possession, unless he (the possessor) can show a particular divestiture of the claimant's title. If, on the other hand, it is to be imperatively presumed that possessors are in all cases owners, injustice will sometimes be done by depriving of their property those who chance to be out of possession.
Some arbitrary rule must therefore be contrived to reconcile these conflicting natural rights of owners and possessors. This end would obviously be attained by prescribing a time within which those who claim to be owners, but are not in possession, shall prove their rights, and after the lapse of which possessors who have not been evicted shall be maintained in their possession. That this obvious rule is also a reasonable one will appear, when it is remembered that occupancy and continued use make the very foundation of title to things, and that the requirement of uninterrupted possession for a given period is only an application of the universal rule of acquisition. As a rule of this nature is then essential, it will be found to exist in all systems of law. Here we have to do only with the prescription of our law. The cognate subject of limitation is treated elsewhere. (See Limitation, Statutes of.) - In strictness the common law allowed only incorporeal rights, such as easements, rights of way, and watercourses, to be prescribed for. Lands and corporeal rights were provided for by the statutes of limitation.
Bracton, however, who was one of the earliest writers on the English jurisprudence, and who wrote before the statutes of limitation were so nicely developed as they now are, and who moreover borrowed much of his learning immediately from the Roman law, lays it down that undisturbed enjoyment may as well give title to corporeal as to incorporeal rights, and that was the principle of prcescriptio in the code of Justinian. American law, though it has, like the English law, its prescription and its limitations, yet does not so strictly as that limit the application of either, but seems sometimes to hold with Brac-ton that prescription may as well apply to lands as to rights of common or way. The period which gives prescriptive right has varied in the law. Anciently the law required that the right claimed should have existed undisturbed from time immemorial, or, as the old phrase is, "from time whereof the memory of man runneth not to the contrary.1' When, by the statute of Westminster the first, in the time of Edward I., writs of right were limited to a certain period, it was thought reasonable that the period of prescription should have a like limitation, and claims of right were therefore declared to be indefeasible if they existed before the. first day of the reign of Richard I. (July, 1189), but were invalidated if they had a later origin.
By later statutes the period of limitation in real actions was still further reduced, and it would have been only reasonable to conform to it the time of legal memory or prescription. But this was not done, and for a long time it was left to the courts to remedy the unfairness by equitable constructions. They hit upon the device of presuming, in case of the long enjoyment of an easement, that there had been a formal grant, of which the evidence, that is to say, the deed, was lost. If this presumption was not rebutted by proof to the contrary, the occupant's title was confirmed. The effect was, that though prescriptive right commencing after the reign of Richard I. was not sustained, for the law on that point was explicit and still imperative, yet possession for a period far less even than that of legal memory sufficed to warrant the presumption of a grant. Prescription in its old sense was rarely pleaded, and time of legal memory came to be of little importance. But later, and particularly by the statute 2 and 3 William IV., the time of prescription was definitely limited by express enactments to periods varying from 60 to 20 years, according to the circumstances and the nature of the right claimed.
The tendency of all modern legislation, indeed, is to substitute a short certain period in lieu of the old immemorial prescription. In the United States the policy of the law has been to make the time of prescription analogous to that of the statutes of limitation; in other words, to apply the same rule to like cases; so that we are gradually bringing the cognate matters of prescription and limitation together again, and throwing them under virtually one title, as they should be in fact, and as they are in foreign codes. At this time adverse, exclusive, and uninterrupted enjoyment for 20 years affords in most states conclusive presumption of right; in some, conforming to the statutes of limitation, it is still less; and in exceptional cases, as for instance where rights are claimed under judicial or tax sales, if the period is measured by the time allowed for bringing suits at law to recover lands, seven, five, and even three years may establish a presumption of right in some states. That the principle of prescription is introduced into our law with singular fitness will appear when it is remembered that in this country all titles, even the oldest, are comparatively recent; that unjust eviction might be in many cases easier than in older countries; that during the rapid settlement of large districts of the country the original instruments of conveyance were often rude and technically inexact; and finally, that in many localities the original settlers had no other right than that which occupancy gave them, a title which custom recognized at the time as sufficient, but of which subsequent grantees could show no written evidence. - In regard' to the particular qualities of prescription, in the first place, the enjoyment of the right prescribed for must have been adverse; that is to say, it must either have invaded or limited the exercise of such a right of the owner as he could have asserted by action.
Prescription therefore cannot be pleaded when possession has been enjoyed by the mere permission or license of the owner, for this recognizes the owner's title; in short, the possession must have been enjoyed as of the possessor's right. Possession must also have been uninterrupted; for he who ceases to hold possession seems himself to admit his lack of title. Claim of prescriptive right is also extinguished by unity of possession. Thus, if B has acquired by long enjoyment a right to have water flow through his land by artificial courses upon A's estate, and then A buys B's land, and makes a conveyance of the land which once was B's, the grantee cannot claim a prescriptive right to the watercourses. Moreover, the right claimed by prescription must have been certain and reasonable. There can be no prescriptive right to do a wrong, or anything that would be a nuisance to another; nor can exclusive right be prescribed for in respect to a common privilege, for example, by one who has pastured his cattle for the prescribed period upon a common or a highway, or has enjoyed a way along a beach which is used in common by fishermen, fowlers, weed-gatherers, etc.
Yet, as a member of the community, an individual may assert prescriptive right in a public easement, as for example in a common landing place or a highway.