24. It follows, that where there is any proof of the commencement or origin of a right, since the time of Rich. I., it cannot be claimed by prescription. 25. A vicar endowed de minutis decimis in the year Pringe v. Child, 1310, sued the parson appropriate for them. It was 2 Roll Ab. held that the parson could not prescribe against this 269. endowment, though it was 300 years past; for the prescription ought to commence since the endowment, which was subsequent to the time of limitation. continued Usage. 26. Every prescription must have a continued and And have a peaceable usage and enjoyment: for if repeated usage cannot be proved, the prescription fails. But 1 Inst. 1136. where a title has once been gained by prescription, it will not be lost by any interruption of the enjoyment of it for ten or twenty years. 27. Thus, if a person has a right of common by Idem. prescription, and he takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription; for the suspension was only of the enjoyment, not of the right. 28. Formerly a person might have psescribed for a right, though the enjoyment of it had been suspended for an indefinite time: but this is now altered, as will be shown in the next chapter. tain and 29. A prescription must be certain; therefore a pre- And be cerscription to pay for tithes a penny or thereabouts, for reasonable. every acre of arable land, is bad. It must also be 2 Roll. Ab. reasonable: thus a prescription for setting out tithes, Hob. 107. without the view of the parson, is void; as being unreasonable. 265. 265. 30. A prescription may however be reasonable, 2 Roll. Ab. though it be unusual or inconvenient; as for a person to have a way over a church-yard, or through a church. Dowell v. 446. 31. A person cannot prescribe to do a wrong, or Cro. Ja. 491. any thing that would be a nuisance to others; as to erect a dove-cote or pigeon-house on his lands, if it be a nuisance; or to lay logs of wood in the highway, and suffer them to continue there for a long time; for this is also a nuisance. 1 Inst. 115 a. Idem. Idem, note. 32. There can be no prescription against an act of parliament; because that is the highest proof and matter of record in law: but a man may prescribe against an act of parliament, when his prescription is saved or preserved by another act of parliament. 33. Lord Coke says, there is a diversity between an act of parliament in the negative, and in the affirmative; for an affirmative act does not take away a custom. Moreover, there is a diversity between statutes that are in the negative: for if a statute in the negative be declaratory of the ancient law, that is, in affirmance of the common law, there, as well, a man may prescribe or allege a custom against the common law; so a man may do against such statute; for consuetudo privat communem legem. 34. Mr. Hargrave has observed upon the above passage, that this appears to be a good rule; for if a statute is merely declaratory of the common law, the latter should be construed as it was before the recognition by parliament; consequently its operation should not be extended to the destruction of prescriptions and customs, which were before allowable. As to the use of negative words in such a case, they might either arise from the subject, or be a mode of expressing what the common law was; in either of which cases, there could not be any colour of reason for giving more effect to negative, than belonged to affirmative words. In short, to say that a statute merely declaratory of the common law, being ex pressed in negative words, should operate on subjects W. Jones, which Lord Coke's distinction, in respect to negative 270, 271. If those who opposed his opinion had meant only 35. Lord Coke says, the statute 34 Edw. I. pro- 1 Inst. 115 a. vides that none shall cut down any trees of his own within a forest, without the view of the forester: but inasmuch as this act was in affirmance of the common law, a man may prescribe to cut down his woods, within a forest, without the view of the forester. This doctrine has been frequently denied, but is defended by Mr. Hargrave, with his usual learning and ability. 36. A man cannot prescribe against another's pre- Aldred's Case, 9 Rep. scription; for the one is as ancient as the other: thus, 57. if a man prescribes for a way, a light, or any other 2 Mod. 105. easement, another cannot allege a prescription to prevent the enjoyment of it. scription may 37. A prescription may be lost by unity of posses- How a Presion, of as high and perdurable an estate in the thing be lost. claimed, and in the land out of which it is claimed Inst. 114 b. 4 Rep. 88. Cowper v. 4 Rep. 87 a. Luttrell's Case, 4 Rep. 86. Finch, B. 1. c. 3. § 23. by such prescription, because it is an interruption in the right. 38. Where the subject matter of a prescription is destroyed, the prescription is lost as if the repair of a castle be claimed by prescription, and the castle is destroyed, the prescription is lost. 39. But no alteration in the quality of the thing to which a prescription is annexed, will destroy the prescription: as if a person prescribes in a modus decimandi for tithes of a park, and the park is disparked, yet the prescription continues; for it is annexed to the land. 40. So, if a man has estovers by prescription to his house, although he alters the rooms and chambers of it, as to make a parlour where there was a hall, or a hall where the parlour was; and the like alteration, of the qualities, not of the house itself; without making new chimnies; by which no prejudice accrues to the owner of the wood; it is not any destruction of the prescription. Although he builds new chimnies, or makes an addition to the old house, he shall not lose his prescription; but he cannot employ any of his estovers in the new chimnies, or in the part newly added. 41. A person having two old fulling mills, to which was annexed, by prescription, a right to a watercourse, pulled them down, and erected two mills to grind corn. It was resolved, that as the mill was the substance, and the addition demonstrated only the quality, and the alteration was not of the substance, but only of the quality, or the name of the mill, without any prejudice in the watercourse to the owner, the prescription remained. 42. If a person has liberties by prescription, and after takes a grant of them by letters patent from the King; this determines the prescription: for a matter in writing determines a matter in fait. 43. It has been stated that a prescription must ante, § 26. have a continual and peaceable usage and enjoyment; therefore a prescription may be lost, by neglecting to claim or exercise it. 44. Sir W. Blackstone observes, that estates ac- Descent of prescriptive quired by prescription are not of course descendible Estates. to the heirs general, like other purchased estates, but 2 Comm. 266. are an exception to the rule: for properly speaking the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo. Therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being a species of descent: but if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal. |