A TREATISE ON THE LIMITATIONS OF ACTIONS. CHAPTER I. PRESCRIPTION. 1. By the term "limitation," as here used, is meant the time which is prescribed by the authority of the law (ab auctoritate legis 1) during which a title may be acquired to property by virtue of a simple adverse possession and enjoyment; or, the time at the end of which no action at law, or suit in equity, can be maintained. By the Roman law, and by the law of every country of which the Roman or civil law is the acknowledged basis, it appears under the title of "prescription," from the word prescribo, which exactly expresses the meaning of the word limit, in the sense in which we here consider it.2 2. Prescription, therefore, is of two kinds. That is, it is either an instrument of the acquisition of property, or an instrument of an exemption only from the servitude of judicial process. 3. First: "Prescriptio est titulus ex usu et tempore substantiam capiens ab auctoritate legis." 4 As thus affording the foundation of title, prescription was designated by the Roman jurists "usu 1 Co. Litt. 113. 2 Kames's Prin. Equity, 182; Bell's Law of Scotland, 636; and all the well-known codes of, and commentaries upon, the law of France, Holland, Germany, Prussia, and Spain. 3 Civil Code of Louisiana, Ayliffe, Civil Law, 326. [Prescription is a means of acquisition or of exemption, by a certain lapse of time, and under conditions determined by law. Code Civil, Art. 2219. The statute of limitations affects the remedy merely, while prescription affects the right. Billings v. Hall, 7 Cal. 1.] 4 Co. Litt. 113. capio," from the circumstance that the person who acquired property in this way might be said usu rem capere.1 What was acquired was "adjectio dominii per continuationem temporis lege definiti." 2 In the time of Ulpian, a landlord was deemed to have relinquished his right to his house, if he neglected for several years to exercise acts of ownership. It could not be expected that time, the physical and moral effects of which have for ages been the theme of the historian and the philosopher, and are every day the subject of our contemplation, should not be without its mouldering effect upon the muniments of title. To repair the injuries so committed, long possession, in the eye of the law, is an assurance of title, because it is in itself evidence of title: "Priora præsumuntur à posterioribus." 4 4. Bracton, and other early writers upon the common law of England, were evidently conversant with the common law, and are free in the use of the term "prescription," especially as applied to incorporeal hereditaments. A title to corporeal hereditaments also, by virtue of prescription, is classed by Blackstone among the methods of acquiring it; as, when a man can show no other title to the land he claims than that he, and those under whom he claims, have immemorially used to enjoy it. English legal writers have, however, generally treated of prescription as applicable to incorporeal rights and easements, or what the civilians treat of as servitudes, such as rights to ways, watercourses, lights, &c. But 1 Usu capio and Prescriptio differed from each other: 1. In the things acquired; 2. In the time; 3. In the effect. These distinctions were abolished by Justinian, and prescription since comprehends both terms. Halifax, Anal. Rom. Civil Law, 30. 3 Vin. ad Inst. L. 2, T. 6. 2 Gro. L. 2, c. 4, p. 81. 4 The probative force of posterior events, in regard to prior ones, is naturally much stronger than that of prior events with regard to posterior ones. In all human affairs, execution is better evidence of design, than design of execution. The reason, because human designs are so often frustrated. 3 Benth. Jud. Ev. 213, 215, 216. See also Greenl. Law Ev., a work which strongly commends itself to the student and the practical lawyer. Such is the opinion at home and abroad. 5 Comm. 6 By the modern rule established in analogy to the limitation of the right of entry upon land, by the statute of limitations of 21 James I., a right to an incorporeal hereditament may be acquired by an adverse uninterrupted enjoyment for twenty years; and the modern Reports, in England and in the United States, abound with decisions to this effect. This doctrine of establishing a prescription, by virtue of twenty years' enjoyment, is now regulated, and made more consistent with previously settled doctrines, in England, by the statute 2 & 3 William IV. c. 21, entitled "An act for shortening the time of prescription in certain cases." possession, at all events, by the law of England and of this country, or quasi possession, as the case may be, is prima facie evidence of property, and of a seisin in fee. The longer the continuance of the possession, and the absence of the disturbance of it, the greater is the length to which courts of justice will go in supporting the conclusion that there was a legal origin for it; and, in order to render the title of the possessor complete, they will presume collateral facts, as livery of seisin, execution of deeds, &c., agreeably to the maxim, "Ex diuturnitate temporis omnia præsumuntur solemniter esse acta."1 5. Legislators, as well as courts, have acted upon such presumptions, and, in the exercise of their peculiar and transcendent functions, have made them positive evidence. The statute of possession of the island of Jamaica is in the nature of the usu capio of the Romans, inasmuch as it converts a possession of seven years into an absolute title.2 So, also, is the modern English statute, of 3 & 4 William IV. c. 27,3 the thirty-fourth section of which provides that, at the determination of the period limited to any person for making an entry or commencing an action, the title to the land shall be extinguished. So, also, is the statute of possession of the State of Rhode Island, which provides that a quiet possession of twenty years of any lands, tenements, or hereditaments, shall, of itself, make a good and rightful title in feesimple. No English statute of limitations had this effect before the above statute of William IV. 6. Analogous to the doctrine of prescription, and to the foregoing presumptions of law and the exercise of legislative authority founded upon them, is the ancient doctrine of fines, which, in point of antiquity, is not exceeded by the earliest English judicial record. Fines and recoveries were regulated by the statute of 1 Best on Presumptions of Law and Fact, 87; Mathew on Pre. Ev.; Greenl. on Ev. [But no length of possession of land will in law amount to a presumption of title. It is only a fact to go to the jury with other facts to enable them to determine whether a conveyance has actually taken place. Callender v. Sherman, 5 Ired. (N. C.) 711. And even where disabilities, such as coverture or minority, except the case from the operation of the statute, undisturbed possession for thirty or forty years, and the acquiescence of the husband or guardian, is evidence entitled to weight in support of the purchaser's title. Meanor v. Hamilton, 27 Penn. St. 187.] 269. 2 Beckford v. Wade, 17 Ves. 88. 4 Appendix, p. xvii. 3 Appendix, p. vi. > Instances of them have been produced prior to the Norman invasion. Plowd. |