SECTION II.

Of title by Prescription, by Adverse Enjoyment, and Occupancy. 1. The doctrine of prescription seems to have been introduced into English juirsprudence from the Roman law. It is founded on this presumption, that he who has had a quiet and uninterrupted possession of any thing, for a long period of years, is supposed to have a just right, without which he could not have been suffered to continue in the enjoyment of it. For a long possession may be considered a better title than can commonly be produced, as it supposes an acquiescence of all other claimants; and that acquiescence also supposes some reason for which the claim was forborne.

By the common law a prescription can only be made to incorporeal hereditaments, such as rents, right of way and the like. It will not in any case give a right to erect a building on another's land. This is a mark of title and exclusive enjoyment, which cannot be acquired by prescription. Title to land requires the higher evidence of corporeal seisin and inheritance. (Ferris v. Brown, 3 Barb. S. C. R. 109. Cortelyou v. Van Brundt, 2 John. 362.)

Nor will lapse of time enable a party to prescribe for a nuisance, though a temporary occupation of part of a street or highway by persons engaged in building, or in receiving or delivering goods from stores or warehouses, or the like, is allowed from the necessity of the case; yet a systematic and continued encroachment upon a street, though for the purpose of carrying on a lawful business, is unjustifiable. (The People v. Cunningham, 1 Den. 524. Mills v. Hall, 9 Wend. 315.)

There is another kind of prescription established by statute law, extending to corporeal hereditaments, by which an uninterrupted possession for a certain number of years will give the possessor a good title, by taking from all others the right of maintaining any action for the recovery thereof.

There are, therefore, two kinds of prescriptions known to our law. The first, a prescription to incorporeal hereditaments by a usage of at least twenty years, which period our courts, in analogy to the statute of limitations, have adopted instead of the immemorial usage of the English law. This is a positive prescription, and the kind which we are now considering.

A prescription differs from custom in this, that a custom is prop

erly a local usage not annexed to the person; such as a right or privilege which several persons have to the produce of the lands or water of another. Thus common of pasture is a right of feeding the beasts of one person on the lands of another; common of estovers is the right the tenant has of taking necessary wood and timber from the woods of the lord for fuel, fencing, &c.; common of turbary and piscary are in like manner rights which tenants have to cut turf or take fish in the grounds or waters of the lord. (Per Savage, Ch. J. in Van Rensselaer v. Radcliff, 10 Wend. 647.) Prescription, on the other hand, is always annexed to a particular person. (Co. Litt. 113 b.)

This kind of prescription is of two sorts; a personal right, or else a right attached to the ownership of a particular estate, and only exercised by those who are seised of that estate. (Id.) The first is termed a prescription in the person; the second, a prescription in a que estate. (Cruise's Dig. title Prescription.)

This last, a prescription in a que estate, must always be laid in the person who is seised of the fee simple. A tenant for life, or years, or at will, cannot prescribe in this manner, by reason of the imbecility of their estates. The reason given for this is that as prescription is always beyond time of memory, it would be absurd that those whose estates commenced within the memory of man should intend to prescribe for any thing. Therefore tenant for life must prescribe, under cover of the tenant in fee simple. (6 Co. 60 a.)

The reason for this distinction does not exist in this state, since an uninterrupted and adverse and exclusive enjoyment of twenty years affords a conclusive presumption of a grant, or a right, as the case may be. A prescription cannot be predicated upon a user of less than twenty years; and as it supposes a grant it is not applicable to a case where there can be no grantee. (Per Gridley, J. in Munson v. Hungerford, 6 Barb. 265.)

It is laid down in the English books that a prescription by immemorial usage can in general only be of things which may be created by grant; for the law allows prescription only to supply the loss of a grant. (Cruise's Dig. tit. 31, ch. 1, § 1.) Hence an easement which is a seisin, or convenience that one neighbor hath of another, without profit, as a way through his land, a sink, or such like, may be claimed by prescription; but a multitude of persons cannot prescribe for an easement, though they may plead a custom. (Id.)

There is a difference between a prescription and a dedication, though some of the principles on which they are founded are common to both. The one is personal, and the other belongs not to one, but the public generally. (See Post v. Pearsall, 22 Wend. 425; S. C. 20 id. 111, where most of the cases are examined.)

While a prescription by immemorial usage can only be of things which may be created by grant, a prescription in a que estate is not predicable of things that lie in grant, and can be affirmed only of things that cannot pass without deed, or by descent from ancestors without a conveyance. (Co Litt. 121 a.)

The first essential requisite to form a prescription is the length of time during which it has existed. In England this is said to be from time whereof the memory of man runneth not to the contrary, which has long been ascertained to commence from the beginning of the reign of Richard 1. The reason given for fixing that period is said by Littleton, that that was the limitation of writs of right, the highest writ in its nature. (Litt. § 170.) That reason does not exist in this country, which was not settled until centuries after that period; but the principle on which the doctrine originally rested, the period of limitation for a writ of right, has led the courts in this country to adopt the period of our statute of limitations against the recovery of real property from an adverse holder, as that which will authorize the presumption of a grant. In this state it is well settled that a prescription cannot be predicated upon a user of less than twenty years. (Munson v. Hungerford, supra.) The presumption of a grant from twenty years' uninterrupted use, has been frequently held conclusive of a right. In Stiles v. Hooker, 7 Cowen, 266,) it was applied in favor of the owner of a mill, who had, for twenty years or more, used the water of a stream at a particular height. In Corning v. Gould, (16 Wend. 531,) it was held that a grant of a right of way might be presumed from a continuous and adverse user of twenty years. (See Hoyt v. Carter, 16 Barb. 213.)

With regard to ancient lights, it was said by the court in Parker v. Foote, (19 Wend. 309,) that the modern English doctrine on that subject was anomalous, and that in this state there was no absolute legal presumption of the grant of such an easement from the time of their enjoyment; but it must be left to the jury to draw the presumption or not, as the circumstances may in their judgment warrant.

The statute of limitations for the recovery of real property differs in the different states. But the principle on which a prescription is founded in this country is generally conceded to have reference to that period. Hence in some a longer and in others a shorter period than twenty years is adopted. (Coolidge v. Learned, Melvin v. Whiting, 10 id. 295. Mitchell v. Walker, Ingraham v. Hutchinson, 2 Conn. Rep. 584.)

8 Pick. 503. 1 Ark. 266.

The second essential requisite to a valid prescription is that it must have a continued and peaceable usage and enjoyment. In Colvin v. Burnett, (17 Wend. 568,) the question arose upon pleadings; and the learned judge who delivered the opinion of the court, adopting the language of Putnam, J. in Sargeant v. Ballard, (9 Pick. 251, 255,) says the essential ingredients of a prescription are that the user for twenty years was continuous, uninterrupted and adverse; that is, under a claim of right, with the acquiescence and knowledge of the owner. And in another and later case they say that the right to flow the lands of another, founded upon an exclusive and uninterrupted enjoyment for twenty years, cannot be acquired unless the enjoyment be adverse. They, however, admit that the uninterrupted possession is prima facie evidence that it is adverse, but such conclusion may be rebutted by proof that it was commenced and continued without any claim of right. (Hart v. Vose, 19 Wend. 365. Gayetta B. Bethune, 14 Mass. Rep. 49.)

The third ingredient is that the prescription must be certain and reasonable. It must be open, peaceable, continued, and unequivocal, and be adverse, that is, of a nature to indicate that it is claimed as a right, and not the effect of mere indulgence. (Id.)

As a prescription must have a peaceable and uninterrupted enjoyment, it may be lost by neglecting to claim or exercise it. Abandonment is a simple non-user, and to operate as an extinguishment, it must have been continuous for twenty years. (Corning v. Gould, 16 Wend. 531.) It must have totally ceased for the same length of time that was necessary to create the original presumption.

A temporary relinquishment of the right, if accompanied with an intention to resume it within a reasonable time; and when there are no circumstances intimating the suspension to be temporary only, a bona fide purchaser will be protected in the enjoyment of property as it appeared at the time of the purchase. (Id.)

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2. Title by adverse enjoyment is the second kind of prescription, and owes its origin to the statute of limitations. It differs from a prescription in this, that by a prescription of twenty years uninterrupted adverse enjoyment, a right to an incorporeal hereditament is acquired, or a grant thereof conclusively presumed; whereas in this second sort of prescription no positive right is acquired, but only the remedy of the former possessor in taken away, for the recovery of a corporeal or incorporeal hereditament. For this reason it has sometimes been called a negative prescription. It is more generally applicable to corporeal than to incorporeal hereditaments.

Though the statute of limitations does not profess to take an estate from one man and give it to another, it extinguishes the claim of the former owner, and quiets the possession of the actual occupant who proves that he has occupied the premises under a color of title peaceably and quietly for the period prescribed by the law. It is therefore truly spoken of as a source of title; and is in truth as valid and effectual as a grant from the sovereign power of the

state.

The statute of limitations in this state, with reference to real property, was revised in 1801, and again in 1830, and subsequently at the adoption of the code of procedure. (1 R. L. 181. 2 R. S. 292. Code of Procedure, § 75 et seq.) The act of 1801 provided that the people of this state would not sue any person for, or in respect to, any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless such right or title should have accrued within forty years before any action or other proceeding for the same should be commenced, or unless the people, or those from whom they claim, should have received the rents and profits of such real estate, or of some part thereof, within the space of forty years. At the revision in 1830, this limitation was reduced to twenty years, and so continued till 1848, when at the adoption of the code of procedure it was restored to forty years, where it has ever since remained. As against the people, the defendant must show title in himself, or a continued possession of forty years. (The People v. Van Rensselaer, 8 Barb. 189.)

The limitation for a writ of right, by the law of 1801, was twenty-five years. This was reduced to twenty years by the revised statutes of 1830, and has been so continued in the code. The writ of right was indeed abolished, but the limitation of twenty years was applied to the substituted remedy.