ENGLISH AND AMERICAN LAW. III the COMM011 law system prescription is employed in a narrow er sense than in the legal systems derived from the Roman law, being restricted to the acquisition of the interests in land described as incorporeal, such as easements and profits a ',rendre, the acquirement of title to personal property and to corporeal interests in land by lapse of time being comprehended under the heads of ADVERSE Pos SESSION and LIMITATION OF ACTIONS (qq-v.)• The common-law theory of the effect of prescrip tion is also radically different from that of the civil law, as its operation is not to sanction a wrongful possession, but to furnish evidence. more or less conclusive, of the lawful origin of the right claimed. This theory in English law took on the grotesque form of the doctrine of a lost grant, the open and notorious enjoyment of the right claimed without interruption for the pre scriptive period raising a presumption that it was originally conferred by deed from the owner of the land affected, the tender of the deed in court being excused by the further fiction of its loss. This presumption may still be rebutted by that the alleged grantor could not pos sibly made the grant in question, but in England (where prescriptions are now mainly governed by statute), as well as in the United States (where they are still regulated by the common law), the fiction of a lost grant has now generally been abandoned and the whole doctrine placed on a more rational basis by being assimi lated to the principles governing adverse posses shin of lands. The latter, however, still retain many of the peculiarities derived from the feudal doctrines of seisin and disseisin (qq.v.), the legal title of the adverse holder of land being in theory based not on the length of his possession, but upon his seisin, however wrongful this may have been—the lapse of time operating only to `quiet' the title thus obtained.
The period of pres6ription has varied from the `immemorial enjoyment' of the earlier common law (interpreted to signify an uninterrupted from the accession of Richard I., 1189) to the modern period, which, by analogy to the limi tation of real actions by statute, is usually fixed at twenty years. As in the case of limitation.
also, the prescriptive term will not begin to ruin during, the existence of a legal disability—as in fancy, insanity, or coverture—in the owner of the land over which the right in question is asserted, nor if the land is at the time of the adverse user in the possession of a tenant or disseisor. An easement or profit once acquired, however, against the tenant in fee simple binds the land into whosesoever hands it may thereafter come.
The operation of the principle of prescription is further restricted by limiting it to rights of enjoyment of a common and well-known sort, and, in the United States, to such as answer the description of positive or affirmative, as distin guished from negative rights. Thus while rights of way. of drainage, and the like, may be gained byprescription everywhere, the negativeeasements of light and of lateral support cannot generally be acquired in this way in the United States, al though in England no such distinction is recog nized. But new and unusual incidents of own ership resting on prescription—such, for ex ample, as the right to the access of air to a wind mill 0v the right to a fine view—will not be ad mitted even in Great Britain. Such rights, as well as the negative easements, in this country arise only by grant.
Strictly speaking, prescriptive rights, as the expression is used in English law, are to he fur ther distinguished from public or quasi-public rights in the nature of easements or profits, such as commons appendant, customary rights of way, and the like. even when these rest, as they com monly do, on immemorial enjoyment. The dis tinction rests on the fact that prescription in legal theory always presumes a grant; and if the right in question is claimed by an indefinite num ber of people, as in the case of a custom, it can not rest on a grant, and is therefore not strictly prescriptive in character. Consult: Gale, Ease ments (7th ed., London. 1899) ; Washburn, Ease ments and 8errit odes; 3 Harvard Law Review, 183.