Where a man prescribes for a thing which cannot be granted or aliened without deed, he must prescribe in himself, and in his ances tors, whofte heir he to ; and he cannot prescribe in himself and those whose estate ho hath ; for he cannot have their estate without deed or other writing which ought to be allowed to the court. But of thingi appendant to a manor or to other lands or tenements, a man may pre. scribe that he and they whose estate he heath, harm been seised of those things as appendant to the manor or to such lands and tenements time out of mind of man. And the reason is, that such manor or lands and tenements may pass by alienation without deed. cLitt. § 183.) From the nature of the claim of prescription, it follows that a mat cannot make a title to land by prescription, for the evidence of a title to land is quite different from and inconsistent with that of a thing claimed by prescription, which only applies to incorporeal things. A man may prescribe for all franchises and privileges which he may have without a title appearing on record, as for waifs, estrays, wreck, treasure trove; and to have a park or warren, to have a fair, market, or right t toll, &c.
Nothing can be prescribed for at the present day that may not Is the subject of grant; for the allegation of leave time out of mind muse be usage of something which could originate in a lawful way. When then, the claim of prescription is allowed, it is equivalent to affinittini that there was an •original grant which is now lost. (Lutttcra Case 4 ' Rep.' 86.) It is however no proof of a grant.
A question has been raised whether tho same thing may be claimed my prescription and by custom, which is nearly the same thing as laying, whether the sane thing could be granted to all the inhabibuita if a given place, and also granted to one person in that place, either in ;rose or iu respect of a piece of land; as for instance, whether a private fight of way may not exist together with a public right of road. ;Blewett r. Tregonning, 3 A. & K 5s6.) If all preseription supposes an iriginnl grant, It is au inconsistency to suppose a grant to A. and a ;rant of the same thing to A. and others with him.
There is some confusion in the books as to prescription and custom, and the real distinction between them has perhaps not always been mbserved. It seems immaterial whether the thing whose origin is inknown is called prescription or custom, for the two hicidents of time and usage belong to both. Still there is the distinction as to the persona who claim, which has been already stated ; and there is of 2ourso a difference inn the evidence, which results from the difference in the persons claiming, or in whose right it is claimed.
A prescription may be lost or destroyed in various ways. If the thing in respect of which the prescription is claimed is destroyed, the proscription also is destroyed. A franchise by prescription is destroyed if the same libertine are granted by the king by charter. It may be lost by non.usage. But a prescription is not lust by changes which are immaterial and do not affect the nature of the claim : thus if a man prescribes for a watercourse to a fulling-mill, and he converts it into a grist-mill, he does not lose hia right, which is generally to have is watercourse to a mill on a given site. And if a corporation should prescribe, and afterwards have a new name, it would not lose the right. 14 Rep.,' 86.) When the ownership of the land and of the tilling claimed out of or upon it are united in the same person, the prescrip tion is destroyed.
Recent Acts have made some alterations as to prescription, and limited the tiro withiu which actions can be brought or snits instituted relating to real property. The 3 & 4 Will. IV. c. 27, applies to every thing of a corporeal nature, which is laud in the sense in which land is interpreted in that Act ; but it only applies to those kinds of property of an incorporeal nature, which are advowsons, anuuities, and rents. The 2 & 3 Will. IV. c. 100, applies only to cases of mains and exemp tion from tithes. The 2 & 3 Will. IV. c. 71, which is entitled "An Act for Shortening the Time of Prescription in certain cases," applies (§ 1) to "claims which may be lawfully made at the common law by custom, prescription, or grant to any right of common or other profit or benefit to be taken froni or upon any land, &c., except such matters and things as are therein specially provided for, and except tithes, rents, and services ; " (§ 2) " to any way, or other casement, or to any watercourse, or the use of any water," &c.; and (§ 3) to the use of
light. • No claim to the things comprised within this statute "shall, when such right, profit, or benefit (as is mentioned in § I) shall have been actually taken and enjoyed by any person claiming right thereto, without interruptions for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years ; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such right, profit, or benefit shell have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible), unless it shall appear that the same was taken and cujoyed by some consent or agreement expressly made or given for that purpose by deed or writing." As to the rights enumerated in the second section, the terms of twenty and forty years are respectively fixed in the place of the terms of thirty and sixty years mentioned in the first section. Linder the third section, which applies to lights, an absolute right to light may be acquired by twenty years' uninterrupted enjoy ment, unless the use has been enjoyed by some consent or agreement made or given by deed or in writing. The eighth sectiou provides " that when any land or water upon, over, or from which any ouch way or other convenient watercourse or use of water shall have been enjoyed or derived, hath been or shall be held under any term of life, or any term of years exceeding three years from the granting thereof, the time of the eujoyment of any such way or other matter as therein last mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determivation of such term be resisted by any person entitled to any reversion expectant on the determinatiou thereof." Formerly it was necessary for all persons who claimed in respect of an estate and had net the fee, to claim in the name of the person who had the fee, but under the laet mentioned Act " it shall be aufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed, for such of the periods mentioned iu the Act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done." The statute applies also to "any land or water of the kiug, his heirs, or successors, or any land being parcel of the duchy of Lancaster or of the duchy of Cornwall." By the common law a man might prescribe for a right which had at any time been enjoyol by his ancestors or predecessors ; but the statute of 32 Hen. c. 2, enacted that no person should "make any prescription by the eeisin or possession of his ancestor, unless such seisin or possession bath been within threescore years next before such prescription made." This statute prevented any claim being made by prescription unless there had been seisin or possession within sixty years ; but it still allowed the commencement of the enjoyment at any time within legal memory before the sixty years to be proved. The Act, 3 & 4 Will. IV. c. 100, directs that "the respective periods of years thereinbefore mentioned shall be deemed to be the period next before • some suit or action wherein the claim or matter to which such period may relate shall be brought into question" (§ 4); but it only excludes proof of commencement of enjoyment, and it only gives the absolute right, when the several periods of years, reckoning backwards from the time of some suit or action wherein the matter is brought in question, are completed ; and it neither excludes the proof nor gives the absolute right if there has been an interruption, within the meaning of this statute, which has been submitted to or acquiesced in "for one year after the party interrupted shall have had notice thereof, and of the person making or authorising the same." In these cases, if there has been seisin or possession of the ancestor or pre decessor within sixty years, the statute of Henry VIII. will still apply, and evidence of the commencement of enjoyment within legal memory may still be given.