PRESCRIPTION. A mode of acquir ing title to incorporeal hereditarnents by immemorial or long-continued enjoyment.
The distinction between a prescription and a custom is that a custom is a local usage and not annexed to a person ; a prescription is a personal usage confined to the claimant and his ancestors or grantors. The theory of prescription was that the right claimed must have been enjoyed beyond the period of the memory of man, which for a long time, in England, went back to the time of Richard I. To avoid the necessity of proof of such long duration, a custom arose of allowing a presumption of a grant on proof of usage for a long term of years.
2. The length of time necessary to raise a strict prescription was limited by statute 32 Hen. VIII. at sixty years. 8 Pick. Mass. 308 ; 7 Wheat. 59 ; 4 Mas. C. C. 402 ; 2 Greenleaf, Ey..i 539. See 9 Cush. Mass. 171; 29 Vt. 43 ; 24 Ala. N. s. 130 ; 29 Penn. St. 22. Grants of incorporeal hereditaments are presumed upon proof of enjoyment of the requisite character for a period of years equal to that fixed by statute as the period of limitation in respect of real actions. 3
Kent, Comm. 442; 12 Wend. N. Y. 330 ; 19 id. 365 ; 27 Vt. 265 ; 2 Bail. So. C. 101 • 4 Md. Ch. Dec. 386 ; 13 N. II. 360 ; 4 D'a,y, Conn. 244 ; 10 Serg. & R. Penn. 63 •, 9 Pick. Mass. 251. See 14 Barb. N. Y. 511; 3 Me. 120 ; 1 Bos. & P. 400 ; 5 Barnew. & Ald. 232.
Prescription properly applies only to in corporeal hereditanients, 3 Barb. N. Y. 105 ; Finch, Law, 132, such as easements of water, light and air, way, etc., 4 1Vlas. C. C. 397 ; 4 Rich. So. C. 536 ; 20 Penn. St. 331 ; 1 Crompt. M. & R. Exch. 217 ; 1 Gale & D. 205, 210, n.; Tudor, Lead. Cas. 114 ; Wash burn, Easements ; a class offranchises. Coke, Litt. 114 ; 10 Mass. 70 ; 10 Serg. & R. Penn. 401. See FERRY. As to the character of the use necessary to create a prescriptive right, see ADVERSE ENJOYMENT.