366. THE presumption of right in a party who is in the possession of property, or of that quasi possession of which rights only occasionally exercisible are susceptible, is highly favored in every system of jurisprudence (g), and seems to rest partly on principles of natural justice, and partly on public policy. By the law of England, possession, or quasi possession, as the case may be, is prima facie evidence of property (h), “Melior (potior) est conditio possidentis "(); and the possession of real estate, or the perception of

(g) Huberus, Præl. Jur. Civ. lib. 22, tit. 3, n. 16; Dig. lib. 50, tit. 17, l. 126 & 128; Cod. lib. 4, tit. 19, 1. 2; Sext. Decret. lib. 5, tit. 12, De Reg. Jur., Reg. 65; Co. Litt. 6 b.

(h) Ph. & Am. Ev. 472; 1 Ph. Ev. 484,

10th ed.; 4 Taunt. 547; 2 Wms. Saund. 47 f, 6th ed.

(2) 2 Inst. 391; 4 id. 180; Plowd. 296; Hob. 103, 199; Vaugh. 60; 1 T. R. 153; 4 id. 564.

the rents and profits from the person in possession, is prima facie evidence of the highest estate in that property, namely, a seisin in fee (k). But the strength of the presumption arising from possession of any kind is materially increased by the length of the time of enjoyment, and the absence of interruption or disturbance from others who, supposing it illegal, were interested in putting an end to it. The rule is, that, where the facts show the long-continued exercise of a right, the court is bound to presume a legal origin, if such be possible, in favor of the right (1). And, in such cases, the courts have presumed not only that the right had a legal origin, but many collateral facts, so as to render the title of the possessor complete, according to the maxim, "Ex diuturnitate temporis, omnia præsumuntur solenniter esse acta" (m).1

§ 367. In treating this important subject, it is proposed to consider, 1st. The presumption from long user of prescriptive and other rights to things which lie in grant, both at common law, and as affected by the statutes 2 & 3 Will. 4, cc. 71 and 100. 2dly. Incorporeal rights not affected by those statutes. 3dly. Presumptions of fact in support of beneficial enjoyment.

§ 368. Among the various ways in which a title to property can be acquired, most systems of jurisprudence recognize that of “prescription," or undisturbed possession or user for a period of time, longer or shorter as fixed by law (n). "Præscriptio est titulus ex usu et tempore, substantiam capiens ab authoritate legis" (o). According to the common law of England, this species of title cannot be made to land or corporeal hereditaments (p), or to such incorporeal rights as must arise by matter of record (q); and it is in general restricted to things which may be created by grant (r), such

(k) B. N. P. 103; Jeyne v. Price, 5 Taunt. 326; Denn d. Tarzwell v. Barnard, Cowp. 595; Crease v. Barrett, 1 C. M. & R. 931; R. v. Overseers of Birmingham, 1 B. & S. 763, 768, 770; Metters v. Brown, 1 H. & C. 686, 629.

(1) Johnson v. Barnes, L. R., 7 C. P. 592; s. c., in Cam. Scac., 8 id. 527.

(m) Co. Litt. 6 b; Jenk. Cent. 4, Cas. 77; Palm. 427. This maxim is clearly a case where priora præsumuntur a posterioribus. See supra, subsect. 4, § 354. (n) Introd. pt. 2 § 43.

(0) Co. Litt. 113 a.

(p) Doct. & Stud., Dial. 1, c. 8; Finch, Comm. Laws, 31; Vin. Abr. Presc. B. pl. 2; Brooke, Abr. Presc. pl. 19; Wilkinson v. Proud, 11 M. & W. 33. A man may, however, prescribe to hold land as tenant in common with another. (Littleton, sect. 310; Brooke, Abr. in loc. cit. and Trespass, 122.)

(g) Co. Litt. 114 a; 5 Co. 109 b; Com. Dig. Franchises, A. 2.

(r) 2 Blackst. Comm. 265; 3 Cruise's Dig. 423, 4th ed.; 1 Vent. 387.

1 Desverges v. Desverges, 31 Ga. 753; Austin v. Bailey, 37 Vt. 219, 223; Freeman v. Thayer, 33 Me. 76; Winkley v. Kaime, 32 N. H. 268; Coxe v. Deringer, 78 Pa. St. 271, acc.

as rights of common, easements, franchises which can be created by grant without record, &c. The reason for this is said to be, that every prescription supposes a grant, or some equivalent document, to have once existed, and to have been lost by lapse of time (s).1 According to some eminent authorities, no claim by prescription could be made at the common law against the Crown (t), on the principle, "Nullum tempus occurrit regi."

§ 369. Customary rights differ from prescriptive in this, that the former are usages applicable to a district or number of persons, while the latter are rights claimed by one or more individuals, or by a corporation (u), as existing either in themselves and their ancestors or predecessors, or as annexed to particular property (x). The latter is called prescribing in a que estate, or, in other words, laying the prescription in the party and those whose estate he has. And here it is necessary to observe, that, at the common law, every prescription must have been laid in the tenant of the fee simple; and that parties holding any inferior interest in the land could not prescribe, by reason of the imbecility of their estates; but were obliged to prescribe under cover of the tenant in fee, by alleging his immemorial right to the subject-matter of the claim, and deducing their own title from him (y).

§ 370. A prescriptive or customary right, in order to be valid. must have existed undisturbed from time immemorial (2); by which, at the common law, was meant, as the words imply, that no evidence, verbal or written, could be adduced of any time when the right was not in existence (a); and the right was pleaded, by

(s) 2 Blackst. Comm. 265; Butl. Co. Litt. 261 a, note (1); Potter v. North, 1 Ventr. 387; 13 Hen. VII. 16 B. pl. 14. (t) 2 Rol. Abr. 264, Prescription, C.; Com. Dig. Præsc. F. 1; Plowd. 243; 38 Ass. pl. 22. See, however, Plowd. 322; Hargr. Co. Litt. 119 a, note (1), 114 b; 2 Inst. 168. It is difficult to see the reason of this, if it be true, as stated in most of the books, that every prescription presupposes a grant before the time of legal memory (see the preceding note); and it is well known that a grant within the time

1 For instances of the very common rule in this country that the same presumption extends to corporeal as well as incorporeal hereditaments, see Hurst v. M'Neil, 1 Wash. C. Ct. 70; Farrar v. Merrill, 1 Greenl. 17; Williams v. Donell, 2 Head, (Tenn.) 695; Glass v. Gilbert, 58 Pa. St. 266; Grimes v. Bastrop, 26 Tex. 310; Townsend v. Downer, 32 Vt. 183; Rooker v. Perkins, 14 Wisc. 79; Carter v. Tinicum Fishing Co., 77 Pa. St. 310.

alleging it to have existed "from time whereof the memory of man runneth not to the contrary" (b). But when the Stat. West. 1 (3 Edw. I.), c. 39, had fixed a time of limitation in the highest real actions known to the law, it was considered unreasonable to allow a longer time in claims by prescription. Accordingly, by an equitable construction of that statute, a period of legal memory was established in contradistinction to that of living memory - by which every prescriptive claim was deemed indefeasible, if it had existed from the first day of the reign of Richard I. (A. D. 1189) (c); and, on the other hand, to be at once at an end if shown to have had its commencement since that period (d).

§ 371. After the time of limitation had been further reduced to sixty years by 32 Hen. 8, c. 2, and in many cases, including the action of ejectment, to twenty years by 21 Jac. 1, c. 16, it might have been expected that, by a similar equitable construction, the time of prescription would have been proportionably shortened. This, however, was not done, and it remained as before (e). But the stat. 32 Hen. 8, c. 2, affected the subject in this way, that whereas, previously, a man might have prescribed for a right, the enjoyment of which had been suspended for an indefinite number of years, it was thereby enacted, that no person should make any prescription by the seisin or possession of his ancestors or predecessors, unless such seisin or possession had been within sixty years next before such prescription made.

§ 372. A prescriptive title once acquired may be destroyed by interruption. But this must be understood to be an interruption of the right, not simply an interruption of the user (f). Thus, a prescriptive right may be lost or extinguished by a unity of possession of the right with an estate in the land as high and perdurable as that in the subject-matter of the right (g); as, for instance, where a party entitled in fee to a right of way, or common, becomes seised in fee of the soil to which it is attached. But the taking any lesser estate in the land only suspends the enjoyment of the subject-matter of the prescription, without extinguishing the right to it, which accordingly revives on the determination of the particular estate (h).

(6) Litt. sect. 170; 2 Rol. Abr. 269, Prescrip. M. pl. 16.

(c) Co. Litt. 115 a.

(d) Id.; 2 Blackst. Comm. 31; 2 Inst. 238; 3 Cruise's Dig. 425, 4th ed.

(e) 2 Blackst. Comm. 31, n. (u); Gale on Easements, 89, 3d ed.

(f) Co. Litt. 114 b; Canham v. Fisk, 2 C. & J. 126, per Bayley, B.

(g) 3 Cruise's Dig. 428, 4th ed.; Co. Litt. 114 b; 4 Co. 38 a; R. v. Hermitage, Carth. 241.

(h) 3 Cruise's Dig. 426, 4th ed.

§ 373. The time of prescription thus remaining unaltered, it is obvious that, if strict proof were required of the exercise of the supposed right up to the time of Richard I., the difficulty of establishing a prescriptive claim must have increased with each successive generation. The mischief was, however, considerably lessened by the rules of evidence established by the courts. Modern possession and user being prima facie evidence of property and right, the judges attached to them an artificial weight, and held that, when uninterrupted, uncontradicted, and unexplained, they constituted proof from which a jury ought to infer a prescriptive right, coeval with the time of legal memory.

The length of possession and user necessary for this purpose depends in some degree on circumstances and the nature of the right claimed. On a claim of modus decimandi, where there is nothing in the amount of the sum alleged to be payable in lieu of tithe inconsistent with its having been an immemorial payment, the regular proof should be payment of that amount in lieu of tithe, by the parish, township, or farm, as far back as living memory will reach; coupled with evidence that, during that period, no tithes in kind have ever been paid in respect of that parish, township, or farm (1). So, generally, in the case of other things to which a title may be made by prescription, proof of enjoyment as far back as living memory raises a presumption of enjoyment from the remote era (k). And a like presumption may be made from an uninterrupted enjoyment for a considerable number of years. "If," says Alderson, B., in the case of Jenkins v. Harvey (), "an uninterrupted usage of upwards of seventy years, unanswered by any evidence to the contrary, were not sufficient to establish a right like the present" (i. e. a right to a toll on all coal brought into a port), "there are innumerable titles which could not be sustained." In that case, the judge at Nisi Prius having directed the jury that he was not aware of any rule of law which precluded them from presuming the immemorial existence of the right from the modern usage, the Court of Exchequer held the direction improper; and that the correct mode of presenting the point to the jury would have been, that, from the uninterrupted modern usage, they should find the immemorial exist

(i) Bree v. Beck, 1 Younge, 244; Chapman v. Monson, 2 P. Wms. 565; Moore v. Bullock, Cro. Jac. 501; Lynes v. Lett, 3 Y. & J. 405; Chapman v. Smith, 2 Ves. sen. 506.

(k) First Report of Real Property Commissioners, 51; Blewett v. Tregonning, 8 A. & E. 554, per Littledale, J.; R. v. Car penter, 2 Show. 48.

(7) 1 C. M. & R. 895.