Prescription must be carefully distinguished from custom. Some rights may be claimed by custom which cannot be claimed by prescription, e.g., a right of inhabitants to dance on a village green, for such a right is not connected with the enjoyment of land.
International Law uses the term "prescription" in its wider or Roman sense. "The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other" (Wheaton, Int. Law, s. 165). Historic instances of rights which were at one time claimed and exercised by prescription as against other nations are the sover eignty of Venice over the Adriatic and of Great Britain over the Narrow seas, and the right to the Sound dues long exacted by Den mark. But such claims were rejected by the highest authorities on international law (e.g., Grotius), on the ground that they were defective both in justus titulus and in de facto possession. In private international law prescription is treated as part of the lex fori or law of procedure. (J. Wm.; X.) Scotland.—In the law of Scotland "prescription" is a term of wider meaning than in England, being used as including both pre scription and limitation of English law. In its most general sense it may be described as the effect which the law attaches to the lapse of time, and it involves the idea of possession held by one person adverse to the rights of another. Though having its basis in the common law, its operation was early defined by statute, and it is now in all respects statutory. Prescription in Scots law may be regarded (I) as a mode of acquiring rights—the positive prescrip tion ; (2) as a mode of extinguishing rights—the negative prescrip tion; (3) as a mode of limiting rights of action—the shorter pre scriptions. It must, however, be observed with reference to this division that the distinction between (I) and (2) is rather an acci dental (due to a loose interpretation of the language of the act of 1617, c. 12) than a logically accurate one. It is, moreover, strictly confined to heritable rights, having no application in the case of movable property.
Positive Prescription.—The positive prescription was intro duced by the Act of 1617, c. 12, which regulated the prescription of land rights till 1874. The provisions of the Act of 1874 are repealed as from Jan. 1, 193o, by the Conveyancing Act, (s. 16). As from that date the prescription will be 20 years with out allowance for legal disability. The Acts of 1874 and 1924 pro vide that possession for 20 years upon "an ex facie valid irre deemable title recorded in the appropriate register of sasines" should in future give the same right as 4o years' possession upon charter and sasine under the earlier laws. These Acts also provide
that the 20 years' prescription is not to apply to servitudes, rights of way and public rights generally.
Negative Prescription.—This prescription was introduced by the Act of 1469, c. 28, and was substantially re-enacted by the Act of c. 55. The negative prescription accordingly ex tinguishes in toto the right to demand performance of an obliga tion after 40 years, the years being reckoned from the day on which fulfilment of the obligation can be first demanded. Such a lapse of this period of time creates a conclusive presumption— one incapable of being reargued—that the debt or obligation has been paid or fulfilled. But it must be kept in view that the nega tive prescription does not per se—without the operation of the positive—establish a right to heritable property (Erskine, Inst. bk. iii. tit. 7. s. 8). The negative prescription of heritable debts (Act of 1617) is reduced to 20 years without allowance for legal dis ability as from Jan. 1, 193o, by the Conveyancing Act 1924 (s. 17). This reduction of period does not apply to the prescription of servitudes and public rights.
United States.—Prescription in the United States though often used synonymously with adverse possession is technically confined as at common law to the acquisition of rights to incorporeal here ditaments, chiefly easements. The common law doctrine of pre suming a lost grant after a certain period of undisturbed enjoy ment of the right prevailed in the States. Upon an analogy to the period of limitations prescribed by the Statute of James I., undis turbed enjoyment of the right for 20 years was deemed to raise the presumption of a lost grant. Some differences of opinion have prevailed as to whether the presumption is a matter only of fact and hence rebuttable or is conclusive as a matter of law, the latter view being the majority rule. Thus prescription has in many States been assimilated to the acquisition of title to land by adverse possession. Statutes have commonly dealt with prescrip tion, abolishing the lost grant presumption and substituting the doctrine of acquisition of title through adverse possession. As at English common law the adverse use must be open and notorious and not under licence of the owner; it must be uninterrupted for the statutory period, and the right acquired is limited to the extent of the use and the enjoyment of it during the period of prescrip tion. No easement can be acquired save as appendant to an abso lute estate in land. No right to maintain a nuisance can be acquired by prescription nor can a right of user be acquired by prescription against the State.