Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Seventeenth : Of Title by Prescription
The RIGHTS of THINGS.
CHAPTER THE SEVENTEENTH.
OF TITLE BY PRESCRIPTION.
A THIRD method of acquiring real property by purchafe is that by prefcription; as when a man can fhew no other title to what he claims, than that he, and thofe under whom he claims, have immemorially ufed to enjoy it. Concerning cuftoms, or immemorial ufages, in general, with the feveral requifites and rules to be obferved, in order to prove their exiftence and validity, we enquired at large in the preceding part of thefe commentariesa
. At prefent therefore I fhall only, firft, diftinguifh between cuftom, ftrictly taken, and prefcription; and then fhew, what fort of things may be prefcribed for.
AND, firft, the diftinction between cuftom and prefcription is this; that cuftom is properly a local ufage, and not annexed to any perfon; fuch as, a cuftom in the manor of Dale that lands fhall defcend to the youngeft fon: prefcription is merely a perfonal ufage; as, that Sempronius, and his anceftors, or thofe whofe eftate he hath, have ufed time out of mind to have fuch an advantage or privilegeb
. As for example: if there be a ufage in the parifh of Dale, that all the inhabitants of that parifh may dance on a certain clofe, at all times, for their recreation; (which is heldc
to be a lawful ufage) this is ftrictly a cuftom, for it is applied to the place in general, and not to any particular perfons: but if the
See Vol. I. pag. 75, &c.
Co. Litt. 113.
I Lev. 176.
tenant, who is feifed of the manor of Dale in fee, alleges that he and his anceftors, or all thofe whofe eftate he hath in the faid monor, have ufed time out of mind to have common of pafture in fuch a clofe, this is properly called a prefcription; for this is a ufage annexed to the perfon of the owner of this eftate. All prefcription muft be either in a man and his anceftors, or in a man and thofe whofe eftate he hath d
; which laft is called prefcribing in a que eftate. And formarly a man might, by the common law, have prefcribed for a right which had been enjoyed by his anceftors of predeceffors at any diftance of time, though his or their enjoyment of it had been fufpended c
for an indefinite faries of years. But by the ftatute of limitations, 32 Hen.VIII. C.2. it is enacted, that no perfon fhall make any prefcription by the fefin or proffeffion hath been within threefcore years next before fuch prefcription, unlefs fuch feifin or proffeffion hath been within threefcore years next before fuch prefcription made f
Secondly, as to the feveral fpecies of things which may, or may not, be prefcribed for: we may in the firft place, obferve, that nothing but incorporeal hereditaments can be claimed by prefcription; as a right way, a common, & c
; but that no prefcription can give a title to lands, and other corporeal fubftances, of which more certain evidence may be had g
. For no man can be faid to prefcribe, that he and his anceftors have immemorially ufed to hold the caftle of Arundel: for this is clearly another fort of title; a title by corporal feifin and inheritance, which is more permanent, and therefore more capable of proof, than that of prefcription. But, as to a right of way, a common, or the like, a man may be allowed to prefcribe; for of thefe there is no corporal feifin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing elfe but immemorial ufage. 2. A prefcription muft
4 Rep. 32.
Co Litt. 113.
- This title, of prefcription, was well known in the Roman law by the name of ufucapio; ( Ff.41.3.3.) fo called, becaufe a man, that gains a title by prefcription, may be faid ufu rem capere.
Dr & St. dial. I. c. 8. Finch. 132.
always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prefcribe, by reafon of the imbecility of their eftates h
For, as prefcription is ufage beyond time of memory, it is abfurd that they fhould pretend to prefcribe, whofe eftates commenced within the remembrance of man. And therefore the copyholder muft prefcribe under cover of his lord's eftate, and the tenant for life of a manor would prefcribe for a right of common as appurtenant to the fame, he muft prefcribe under cover of the tenant in fee-fimple; and muft plead, that john Stiles and his anceftors had immemorially ufed to have this right of common, appurtenant to the faid manor, and that john Stiles demifed the faid manor, with it's appurtenances, to him the faid tenant for life. 3. A prefcription cannot be for a thing which cannot be raifed by grant. For the law allows prefcription only in fupply of the lofs of a grant, and therefore every prefcription prefuppofes a grant to have exifted. Thus a lord of a manor cannot prefcribe to raife a tax or toll upon ftrangers; for, as fuch claim could never have been good by any grant, it fhall not be good by any grant, it fhall not be good by prefcription i
. 4. A fourth fule is, that what is to arife by matter of record cannot be prefcribed for, but muft be claimed by grant, entered on record: fuch as for inftance, the royal franchifes of deodands, felons' goods, and the like. Thefe, not being forfeited till the matter on which they arife is found by the inquifition of a jury, and fo made a matter of record, the forfeiture itfelf cannot be clamed by any inferior title. But the franchifes of treafure-trove, waifs, eftrays, and the like, may be claimed by prefcription ; forthey arife from private contingencies, and not from any matter of record k
. 5. Among. Things incorporeal, which may be claimed by prefcription, a diftinction muft be made with regard to the manner of prefcriding; that is, whether a man fhall prefcribes in a que eftate, or in himfelf and his anceftors. For, if a man prefcribes in a que eftate, (that is, in himfelf and thofe whofe eftate he holds) nothing is claim-
Rep. 31, 32.
I Ventr. 387.
able by this prefcriptin, but fuch things as are incident, appendant, or appurtenant to lands; for it would be abfurd to claim any thing as the confequence, or appendix, of an eftate, with which the thing claimed has no connexion: but, if he prefcribes in himfelf and his anceftors, he may prefcribe for any thing whatfoever that lies in grant; not only things that are appurtenant, but alfo fuch as may be in grofs I
. Therefore a man may prefcribe, that he, and thofe whofe eftate he hath in the manor of Dale, have ufed to hold the advowfon of Dale, as appendant to that manor: but, if the advowfon be a diftinct inheritance, and not appendant, then he can only prefcribe in his anceftors. So alfo a man may prefcribe in a que eftate for a common appurtenant to a manor; but, if he would prefcribe for a common in grofs, he muft prefcribe in a que eftate for a common appurtenant to a manor; but, if he would prefcribe for a common in grofs he muft prefcrivbe in himfelf and his anceftors, 6. Laftly, we may obferve, that eftates pained by prefcription ane not, of courfe, defcendible to the heirs general, like other purchafed eftates, but are an exception to the rule, For, properly fpeaking, the prefcription is rather to be confidered as an evidence of a former acpuifition, than as a acquifition de novo: and therefore, if a man prefcribes for a right of way in himfelf and his anceftors, it will defcend only to the blod of that line of anceftors in whom he fo prefcribes; the prefcription in this café being indeed a fpecies of defcent. But, if he prefcribes for it in a que eftate, it will follow the nature of that eftate in which the prefcription is laid, and be inheritable in the fame manner, whether that were acquired by defcent or purchafe: for every acceffory followeth the nature of it,s principal.