PRESCRIPTION. At common law, right or title to incorporeal interests in land, as ease ments, acquired by possession for the time and in the method required by law. In some sys tems of jurisprudence, as in the civil law, the term has a much more extensive signification.
At common law prescription was originally based on the legal fiction that open, peaceful and uninterrupted possession for a long term of years raised a presumption of a grant, with the further fiction that this grant had been lost, so as to avoid the rule of pleading requiring pro fert. The fiction of a lost grant has now to a great extent been superseded. The doctrine is governed largely by statute in the United States. Formerly the period of possession necessary to acquire title by prescription was from time im memorial, or from the time whereof the mem ory of man runneth not to the contrary?' To day the period is usually fixed at 20 years, both in England and the United States, but by statu tory regulation in the latter country it may be less and in rare cases even more. In Louisiana, however, which follows the civil law, the period varies with the subject, and the important dis tinction is made that the right is not restricted to incorporeal hereditaments. By the Prescrip tion Act passed in England in 1832, 'later ex tended to rights of common and other profits a prendre vest after 30 years, and the right ordinarily becomes absolute after 60 years. The period of prescription does not run against an owner of land while he is under legal disability, as insanity. Rights of way and drainage may be acquired by prescription in the United States, but not to lateral support or light. In some States it is denied that easements by prescription may be acquired against a rail road, but in other States this right is declared to exist. As prescription is founded on the theory of a grant, the use or possession on which it is founded must be adverse. It is, therefore, a well-settled principle of law that use by express or implied permission, irrespective of the length of time continued, cannot ripen into an ease ment by prescription. In the United States
generally evidence of adverse user must be clear and positive, and usually it is a question of fact for the jury. In England, however, the Prescription Act renders the possession a bar or title of itself, without the necessity of the intervention of a jury.
The term had several distinct meanings in Roman law. In procedure a prescription was a legal plea sent by the prwtor to the referee to be examined before other disputed issues. The term was also applied to a right or title acquired by uninterrupted possession of property. In the case of movables the period required was fixed at three years by the legislation of Justinian, while for immovables it varied, being 10 years where the parties were domiciled in the same province and 20 years where domiciled in differ ent provinces. However, title by prescription could not be secured to public property nor to property acquired by theft or violence. At one period it required continued possession varying from 40 to 100 years to give title by prescription to church property. Later the same rule was applied to church property as to public property. The term was also used in Roman law to apply to lapse of time after which actions were barred, first limited to equity, but later extended to all cases.
In the law of Scotland, the term is used in a broader sense than in England or the United States and includes limitation in English law. Though originating in the common law, it is governed by statute in Scotland.
Statutes of prescription are statutes of re pose. Prescription is justified on the ground that public policy and convenience require that long possession should not be disturbed, and also because there is a social need of settling controversies and of affording relief to those who necessarily find it exceedingly difficult to furnish proof of title on account of great lapse of time. Concerning corporeal interests in real property and title to personal property by lapse of time, see ADVERSE POSSESSION; LIMITATION OF ACTIONS.