PRESCRIPTION, in the broadest sense, the acquisition or extinction of rights by lapse of time. The term is derived from the praescriptio of Roman law, originally a matter of procedure. It seems to have been introduced by the praetor .to meet cases affecting aliens or lands out of Italy where the usucapio of On civil law (the original means of curing a defect of title by lapse of time) could not apply. The prescription of Roman law (and of modern systems based upon it) is both acquisitive and extinctive. It looks either to the length of time during which the defendant has been in possession, or to the length of time during which the plaintiff has been out of possession.
In English law prescription is used in a comparatively narrow sense. It is acquisitive only, and is very limited in its application. A title by prescription can be made only to incorporeal heredita ments—i.e., in legal language, hereditaments that are or have been appendant or appurtenant to corporeal hereditaments—and to cer tain exemptions and privileges. The rights claimable by prescrip tion for the most part consist of rights in alien° solo. The most important are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities and rents. Land or movables cannot be claimed by prescription. The founda tion of prescription is the presumption of law that a person found in undisturbed enjoyment of a right did not come into possession by an unlawful act. In the English courts this presumption was, perhaps still is, based upon the fiction of a lost grant. The enjoy ment of the right must have been from a time whereof the memory of man runneth not to the contrary. After one or two previous enactments the date was finally fixed by the Statute of West minster the First (3 Edw. I. c. 39) at the reign of Richard I., which was interpreted to mean the first year of the reign of Richard I. (1189). This is still the law with respect to claims not falling within the Prescription Act, 1832. By that act (extended to Ire land in 1858, but not to Scotland) claims to rights of common and other profits a prendre are not to be defeated after 3o years' enjoyment by any person claiming right thereto without inter ruption for 3o years by showing only the commencement of the right, and after 6o years' enjoyment the right is absolute and indefeasible unless had by consent or agreement by deed or writ ing (s. 1). In claims of rights of way or other easements the
periods are 20 years and 4o years respectively (s. 2). The before mentioned periods are to be deemed those next before suits, and nothing is to be deemed to be an interruption unless acquiesced in for one year (s. 4). The time during which a person otherwise capable of resisting a claim is an infant, idiot, non compos mentis, feme covert or tenant for life, or during which an action or suit has been pending until abated by the death of a party, is to be excluded in the computation of the periods unless where the right or claim is declared to be absolute and indefeasible (s. 7). An act to define the period of prescription for a modus decimandi, or an exemption from tithes by composition, was passed the same year. The claim under the statute must be one which may be lawfully made at common law. The principal rules upon the subject are these : (I ) The title is founded upon actual usage. The amount of actual usage and the evidence necessary to prove it vary accord ing to the kind of claim. ( 2) The enjoyment must (except in the case of light) be as of right—that is to say, peaceable, openly used, and not by licence. (3) The prescription must be certain and rea sonable. Inhabitants cannot, however, claim by prescription, as they are an uncertain and fluctuating body, unless under a grant from the Crown, which constitutes them a corporation for the purposes of the grant. (4) The prescription must be alleged in a que estate or in a man and his ancestors. Prescription in a que estate lies at common law by reason of continuous and immemorial enjoyment by the claimant, a person seised in fee, and all those whose estate he had. Prescription in a man and his ancestors is not of ordinary occurrence in practice. Corporations, however, occasionally claim by a prescription analogous to this, viz. in the corporation and its predecessors. Such claims by either a person or a corporation are not within the Prescription Act, which applies only where there are dominant and servient tenements. By 32 Hen. VIII. c. 2 (154o) no person can make any prescription by the seisin or possession of his ancestor unless such seisin or possession had been within three score years next before such prescription made. (5) A prescription cannot lie for a thing which cannot be granted, as it rests upon the presumption of a lost grant.