PRESCRIPTION. A mode of acquiring ti tle to incorporeal hereditaments by immemo rial or long-continued enjoyment.
The distinction between a prescription and a custom le that a custom Is a local usage and not an nexed to a person; a prescription is a personal usage conned 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.
The length of time necessary to raise a strict prescription waS limited by statute 32 Hen. VIII. at sixty years; Coolidge v. Learned, 8 Pick. (Mass.) 504; 2 Greenl. Ev. § 539. See Arbuckle v. Ward, 29 Vt. 43; Clawson v. Primrose, 4 Del. Ch. 643.
One who claimed a right of way or the like, if his right were questioned and he could not produce hips deed, could prescribe, i. e. show that he had enjoyed it before the time of legal memory, or that in the dis trict in which the land was situated there was a special custom which entitled all per sons in his position to the right claimed; 3 Holdsw. Hist. E. L. 136.
Proof of user as of right for so long as aged persons could remember was enough to raise a presumption that the right had exist ed from time immemorial, if it was neither secret, nor forcible, nor by permission; sub sequently, user for 20 years was held suffi dent ; 25 Q. B. D. 484; but this presumption could, at common law, be rebutted by proof that the enjoyment had in fact commenced within the time of legal memory ; Odgers, C. L. 565. By the Prescription Act (1832) it was provided that after user as of right and without interruption for thirty years in the case of a profit A prendre, and of twenty years in the case of an easement, the prima facie right should not be defeated by proof that it commenced at a date subsequent to 1189.
The expectation of acquiring an easement at the end of a current term of prescription "is not an interest in land or easement known to the law"; "there is no intermedi ate stage which has any existence"; lock, First Book of Jurispr. 194, citing L. R. 6 Ch. 768; [1901] 2 Ch. 324. Prescription is not a right which has been created or ac quired, but a mere expectation, a hope, s realization of which depends upon numerous contingencies ; People v. Dimas, 18 P. R. 1019.
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 442 ; Arnold v. Foot, 12 Wend. (N. Y.) 330; Ford v. Whitlock, 27 Vt. 265; Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; Strickler v. Todd, 10 S. & R. (Pa.) 63, 13 Am., Dec. 649; Sargent v. Ballard, 9 Pick. (Mass.) 251.
A grant cannot be presumed where it would have been unlawful; Donahue v. State, 112 N. Y. 142, 19 N. E. 419, 2 L. R. A. 576.
In England an ancient user may be a justification for the exercise of a noisy (2 Bing. 134) or an offensive (4 id. 183) trade; or for discharging water in an impure state upon adjoining land; 1 M. & W. 77; or for polluting a stream; 1 H. & N. 797; 7 E. & B. 391; [1905] 1 Ch. 205. But the right to carry on an offensive trade, or to pollute water with sewage, is not acquired merely by having carried on the trade or having discharged the water for twenty years ; but it must be shown that the air over the plain tiff's land, or the water has been corrupted for that time; 10 A. & E. 590; 7 E. & B. 391; and corrupted to the extent of the right claimed; L. R. 2 Ch. 478; and so as to be actionable or preventible by the plaintiffs or his predecessors; L. R. 11 Ch. Div. 852. In [1907] A. C. 476, a nuisance from noise and vibration was legalized on the ground of an implied grant, arising from the common in tent of the parties.