Prescription by immemorial Usage. 4 Inst. 113 b. 4 Rep. 31 b. May be in the Person or the Estate. 1 Inst. 113 b. 121.a. 6 Rep. 60 a. than that he, and those under whom he claims, have immemorially used to enjoy them. But there is another kind of prescription established by the 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 away from all other persons the right of entering on such hereditaments, or of maintaining any species of action for them. 6. There are, therefore, two kinds of prescription known to the English law. First, a prescription to incorporeal hereditaments by immemorial usage; as where a person shows no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it; which may be called a positive prescription. 7. A prescription by immemorial usage differs from custom in this respect, that a custom is properly a local usage, not annexed to the person; such as the custom that all the copyholders of a manor have common of pasture upon a particular waste. Whereas prescription is always annexed to a particular person. 8. This kind of prescription is of two sorts. Either it is a personal right, which has been exercised by a man and his ancestors, or by a body politic and their predecessors; or else it is a right attached to the ownership of a particular estate, and only exercisable by those who are seised of that estate. In the first case, it is termed a prescription in the person; in the second case, it is called a prescription in a que estate. 9. A prescription in a que estate must always be laid in the person who is seised of the fee simple. A tenant for life, for years, or at will, or a copyholder, cannot prescribe in this manner, by reason of the imbecility of their estates; for, as prescription is always beyond time of memory, it would be absurd that those whose estates commenced within the memory of man, should pretend to prescribe for any thing. Therefore, a tenant for life must prescribe under cover of the tenant in fee simple, and a copyholder under cover of his lord. 10. Prescription by immemorial usage only extends What may be claimed by. to incorporeal hereditaments; such as commons, ways, waifs, estrays, wreck, warren, &c. But it cannot give a direct title to lands, or other corporeal inheritances, of which more certain evidence may be had. 11. Nothing, however, can be claimed by prescrip. Tit. 27. § 83. tion, which owes its origin to matter of record. For 1 Inst. 114 a prescription being only an usage in pais, does not 5 Rep. 109 b. extend to those things which can only be had by matter of record; such as goods and chattels of traitors, felons, and fugitives, deodands, &c. But to treasure trove, waifs, estrays, wrecks, park, warren, royal fishes, fairs, markets, and the like, a title may be made by prescription. 12. A prescription by immemorial usage can in 1 Vent. 387. general only be for things which may be created by grant; for the law allows prescriptions only in supply of the loss of a grant. Ancient grants must often be lost; and it would be hard that no title could be made to things lying in grant, but by showing the grant. Upon immemorial usage, therefore, the law will presume a grant, and a lawful beginning; and allows such usage for a good title: but still it is only to supply the loss of a grant. Therefore, for such things as can have no lawful beginning, nor be created at this day, by any manner of grant, or reservation, or deed, that can be supposed, a prescription is not good. 1 Inst. 114 b. Jeffry at Hay's Case, 13. A person may have frank foldage by prescription, but it must be appendant to land; and a man may prescribe that he and his ancestors, time out of mind, have had frank foldage of the beasts of his tenants, in a particular place. 14. In trespass, the defendant justified under a 8 Rep. 125. prescription, that the lords of the manor of H. had, and always used to have, free foldage throughout the vill of H., and to have the penning of the sheep; so that the vill of H. ought not to have free foldage, without the consent of the lord; and that if any levied a fold, without such consent, the lord had used to abate it. Punsany 1 Leon. 11. Addington v. Clode, 2 Black. R. 989. It was urged, that this prescription was void, being against common right, which gave every one foldage in his own land. Sed non allocatur, for every prescription is against common right; and it did not extend to deprive the owner of the whole interest and profit of his land, which would not have been good; but only precluded him from setting up hurdles, which was a reasonable prescription, and restrained a particular profit only. 15. In a modern case it was held, that an ancient grant without date does not necessarily destroy a prescriptive right; for such grant may either be prior to the time of memory, or in confirmation of such prescriptive right. 16. In trespass the defendants pleaded, that Clode was seised of a messuage, &c.; that he and all those whose estate he had, &c. for the time being, had and used, and had been accustomed to have and use, and so still of right ought to have and use, common of pasture in the place where, &c. for all commonable cattle, levant and couchant, &c.; and thereupon justified. The plaintiff traversed the right of common, and produced two ancient charters, without date, containing a grant of common. The Judge being of opinion that these grants were inconsistent with the plea of prescription, a verdict was given for the plaintiff. Upon a motion for a new trial, it was urged for the defendant, that these grants might only be in confirmation of an antecedent prescriptive right; and then were not inconsistent with it. The Court was of opinion, that these grants might either be before time of memory, or else they might have been only in confirmation of a prior right: in neither of which cases would they have been inconsistent with a plea of prescription. It ought to have been left to the jury to decide whether either of these was the case. A new trial was granted. 17. An easement, which is a service or conve- Kítch. nience that one neighbour hath of another, without Courts, 105b. 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. Towers, 18. There can be no prescription for what the law Pill v. gives of common right: therefore a lord of a manor Cro.Eliz.791. cannot prescribe to have a court baron within his manor; because it is of common right, and incident to a manor. But a lord of a manor may prescribe to enlarge the jurisdiction of his court. 19. Where a person prescribes in a que estate, he Lit. § 183, can claim nothing under such prescription but what is appendant or appurtenant to land; for it would be absurd to claim any thing as the consequence of an estate, with which the thing claimed has no connexion. 1 Inst. 121 a. 20. A person cannot prescribe for any thing in a que estate that lies in grant, and cannot pass without $310. Must be be- deed or fine; but in him and his ancestors he may, because he comes in by descent, without any conveyance. 21. Although prescription in general only extends to incorporeal inheritances, yet Littleton says, tenants in common may be by title of prescription: as if the one and his ancestors, or they whose estate he hath, in one moiety, have holden in common the same moiety with the other tenant, who hath the other moiety, and with his ancestors, or with those whose estate he hath, undivided, for time out of mind. Lord Coke observes on this passage, that it is founded on good authority; but that joint tenants cannot be by prescription, because there is a survivorship between them, though not between tenants in common. 22. There are two circumstances necessary to form a prescription. First, time whereof the memory of man runneth not to the contrary; which has long since been ascertained, by the law, to commence from 2 Comm. 31. the beginning of the reign of King Richard I.: though it seems extraordinary that the date of legal prescription should continue to be reckoned from so remote a period. note. 23. This time is understood, not only of the 1 Inst. 115 a. memory of any man living, but also of proof by any record or writing to the contrary: for if there be any sufficient proof by record, or writing, although it exceed the memory or proper knowledge of any man living, yet it is within the memory of man: for memory or knowledge is twofold; first, knowledge by proof, as by record or sufficient matter of writing; secondly, by a man's own proper knowledge. |