prescription

When, therefore, no claim to property is made for years against the possessor, the presumption arises that his possession is founded in right, and by statute the presumption being conclusive, the possessor is said to have acquired title by operation of the statute or by prescription.

A mode of acquiring title to incorporeal hereditaments 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. In modern practice, the period of legal limitation for adverse possession of lands is generally adopted. 100 N. Y. 455. To acquire title by prescription, the user must be adverse (117 111. 532), exclusive (7 Mete. [Mass.] 33), peaceable (31 N. J. Eq. 706), notorious (7 Allen [Mass.] 368), and continuous (2 Cush. [Mass.] 191).

A mode of acquiring title to incorporeal hereditaments grounded on the fact of immemorial or long-continued enjoyment. See Lucas v. Turnpike Co., 36 W. Va. 427, 15 S. E. 182; Gayetty v. Bethune, 14 Mass. 52, 7 Am. Dec. 188; Louisville & N. R. Co. v. Hays, 11 Lea (Tenn.) 388, 47 Am. Rep. '291; Clarke v. Clarke, 133 Cal. 667, 66 Pac. 10; Alhambra Addition Water Co. v. Richardson, 72 Cal. 598, 14 Pac. 379; Stevens v. Dennett, 51 N. H. 329. Title by prescription is the right which a possessor acquires to property by reason of the continuance of his possession for a period of time fixed by the laws. Code Ga. 1882, § 2678. "Prescription" is the term usually applied to incorporeal hereditaments, while "adverse possession" is applied to lands. Hindley v. Metropolitan El. R. Co., 42 Misc. Rep. 56, 85 N. Y. Supp. 561. In Louisiana, prescription is defined ds a manner of acquiring the ownership of property, or discharging debts, by the effect of time, and under the conditions regulated by law. Each of these prescriptions has its special and particniar definition. The prescription by which the ownership of property is acquired, is a right by which a mere possessor acquires the ownership of a thing which he possesses by the continuance of his possession during the time fixed by law. The prescription by which debts are released, ls a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim. Civ. Co.de La. arte. 3457-3459. In this sense of the term It is very nearly equivalent to what is elsewhere expressed by "limitation of actions," or rather, the "bar of the statute of limitations." "Prescription" and "custom" are frequently confounded in common parlance, arising perhaps from the fact that immemorial usage was essential to both of them; but, strictly, they materially differ from one another, in that custom is properly a local impersonal usage, such as borough-English, or postremogeniture, which is annexed to a given estate, while prescription is simply personal, as that a certain man and his ancestors, or those whose estate he enjoys, bave immemorially exercised a right of pasture-common in a certain parish. Again, prescription has its origin in a grant, evidenced by usage, and is allowed on account of its loss, either actual or supposed, and therefore only those things can be prescribed for which could be raised by a grant previously to 8 & 9 Viet. c. 106, § 2; but this principle does not necessarily hold in the case of a custom. Wharton. The difference between "prescription," "custom," and "usage" is also thus stated: "Prescription hath respect to a certain person who, by intendment, may have continuance forever, as, for instance, he and ali they whose estate he hath in such a thing,
—this is a prescription ; while custom is local, and always applied to a certain place, and is common to all; while usage differs from both, for it may be either to persons or places." Jacob.

— Corporations by prescription. In English law. Those which have existed beyond the memory of man, and therefore are looked upon in law to be well created, such as the city of London.

— Prescription act. The statute 2 & 3 Wm. IV. c. 71, passed to limit the period of prescription in certain cases.

— Prescription in a que estate. A claim of prescription based on the immemorial enjoyment of the right claimed, by the claimant and those former owners "whose estate" he has succeeded to and holds. See Donnell v. Clark, 19 Me. 182.

— Time of prescription. The length of time necessary to establish a right claimed by prescription or a title by prescription. Before the act of 2 & 3 Wm. IV. c. 71, the possession required' to constiinte a prescription must have existed "lime out of mind" or "beyond the memory of man," that is, before the reign of Richard I.; but the time of prescription, in certain cases, was much shortened by that act. 2 Steph. Comm. 35.

A mode of acquiring tinued usage; a title to incorporeal scription, time ot: a length of of prescription, or title by tical with time immemorial, or security given by a debtor which will creditor or creditors an advantage over o. eng.

In old English law. A proa judging before examination;; to determine beforehand. before, or stated before; matter preof the formal and orderly parts of a of all that precedes the habendum, — grant, description, exceptions, etc.: a distinct portion of realty, consisting a sum paid or agreed to be paid or agreed to be paid by an assured to for insurance. • Premium note: a of the contract of insurance. or right of taking a thing before it render. baron: a taking of a husband; marv. Malice aforethought. weight being asked first or something that is or in preference to all others. pre-eminence which the king has over right of his regal dignity. Prerogafor the trial of all testamentary bona notabilia within two different probate of the will belonged to the archof special prerogative. Prerogative extraordinary occasion, and for which to the court; a writ not of course, mandamus, prohibition, quo warranto, thing, on the ground of long or imtitle to property by long and conhereditaments so acquired. Pretime sufficient to establish the right prescription,— in England, formerly identime out of memory, a period refer-

8 That which is declared, published, c* directed beforehand. 1. Municipal law is " a rule prescribed." That is, the resolution of the legislator is to be notified to the people who are to obey it, before its commencement as a law. This may take place by universal tradition and long practice, which supposes a previous publication, as in the case of the common law; by viva voce proclamation; or by writing, printing, or the like.» The constitutional provision that " a jury trial may 1 Hills V. Goodyear, 4 Lea, 241-43 (1880), cases. ' Whitney v. Clifford, 67 Wis. 157-58 (1883). ' L. prce, before; rogare, to require, demand. * 1 Bl. Com. 239; 37 Wis. 443. ' Charles River Bridge v. Warren Bridge, 11 Pet. *641-42 (1837); Vattel, Law of Nations, § 45. « [3 Bl. Com. 132; 3 Steph. Com. 629. ' Wheeler v. Irrigation Co., 9 Col. 252 ( be waived in the manner to be prescribed bylaw," contemplates actual legislation upon the subject.' "Prescription" of a statute is necessary to give it effect. There are other modes of publication than that by the session laws. The doings of the legislature are necessarily public, and the journals of each house are required to be published regularly. Every enactment is, therefore, published in the sense in which publication is intended in the word "prescribed," though, by some oversight, it is omitted from the annual volume of laws." Compare Promdl- &ATE. 3. In the Roman law, prcescriptio was an exception written in front of the plaintiff's pleading. It became applied exclusively to the prmscriptio longi temporis, etc., or the prescription founded on length of possession,3 which see, below. 3. " When a man can show no other title to what he claims than that he and those under whom he claims have immemorially used to enjoy it." * Whence prescriptible, imprescriptible, prescriptive. All prescription must be either in a man and his ancestors, or in a man and those whose estate he has, which last is called prescribing in a que estate iguorum statum). Nothing but incorporeal hereditaments can be claimed by prescription; as, a right of way, or a common. No prescription can give title to lands of which more certain evidence may be had; and it musL always be laid in him that is tenant of the fee: since usage beyond time of memory cannot be predicated of any lesser estate. Nor, again, can it be for a thing which cannot be raised by grant: for the law allows prescription only in supply of the loss of a grant, and, therefore, every prescription presupposes a grant to have existed.* Title by prescription is a right which a possessor of land acquires by reason of his adverse possession during a period of time fixdd by law, and where it does not originate in fraud, and is under a claim of right.s Prescription is a legal fiction to quiet ancient possession.^ It rests upon the presumption that there was a grant which by lapse of time (usually twenty years) has become lost. ' The presumption is rebuttable.' The doctrine is broader than that of a statute of limitations, although based upon analogous principles of repose to society. ^ "What the primary owner has lost by his laches, 1 Exline v. Smith, 5 Cal. 112 (1885). apeterman v. Huling, 31 Pa. 436 (1858), Strong, J. 3 Bandar's Justinian, 47, 136; Maine, Anc. Law, 275. 4 3 Bl. Com. 263-66. 6 Burden u. Blain, 66 Ga. 170 (1880), Crawford, J. a Folsom V. Freeborn, 13 R. I. 205-f (1881), cases. 'Brookline v. Mackintosh, 133 Mass. 226 (1883); the other party has gained by continued possession, without question of his right." This is the foundation of the doctrine, which, in the English law, is mainly applied to incorporeal hereditaments, but which in the Roman law, and the codes founded on it, is applied to property of all kinds. ^ See Use, 3, User. 4. To fill a druggist's prescription is to furnish and combine the requisite materials in due proportion as directed. ^ When a druggist, in good faith, recommends a prescription as that of another person, and, at the request of his customer, fills it, charging only for the drugs aijd for compounding them, he is not responsible for injury that may result from the use of the alleged remedy. 2 See Druggist.