Prescription (Lat. prae, before, and scribere, to write, in later legal Latin involving the idea of limitation) is a method created by law for acquiring ownership or ridding oneself of certain burdens on the fulfilment of fixed conditions. It is, therefore, either acquisitive or liberating, the former being frequently termed usucaption. Prescription has its origin in enactments of the civil law which have been confirmed by the canon law and which so far as the principle underlying them is concerned are universally acknowledged to be perfectly valid in conscience. Public good demands that provision should be made for security of title to property as well as for the prevention of litigation as much as possible. Hence the State, using its right of eminent domain, may for grave reasons of the common welfare transfer ownership from one individual to another or release from lawful obligations. A person, therefore, who has under the proper conditions acquired real estate by prescription may retain it with a safe conscience even though the former owner were to appear and claim it.
Prescription, deriving its value from positive law, presupposes certain conditions in order to produce the effect attributed to it. Moralists are agreed that the object, the ownership of which is to pass, must be open to prescription. It must be something that may be made the subject matter of private barter and to which it is possible to gain a title recognized by both natural and positive law. Thus one could not secure dominion over a public highway on pretense that prescription had operated in his behalf. The reason is that the authority of the law cannot be invoked, without which the process falls.
2. The beneficiary must act in good faith. The civil codes are not so explicit in demanding this, but in conscience it is essential. This simply means that a man must be honestly convinced that what he has in his possession really belongs to him. The Fourth Lateran Council requires this in no uncertain terms. Prescription cannot legitimize theft or detention of property known to be that of another. It may be noted, however, that when the scope of the prescription is to free one from certain servitudes, and the attitude of him who profits by it need only be passive, then “good faith” is interpreted to mean that he should not hinder the other party exercising his right; he is not bound to warn him that prescription is running against him. This has its application in rural districts and with regard to such matters as the right to fish, to draw water, to pasture, and the like. Bad faith on the part of a decedent will prevent his immediate and sole heir from availing himself of prescription. The heir is then juridically one person with the deceased and must take over the latter’s obligations. Consequently he can no more benefit by it than could his predecessor. In addition the good faith which is indispensable for prescription postulates in the possessor of a thing some sort of title to it. It need not be a true title because then there would be no need of prescription. It must have the semblance of a good title, such as the purchase of something which did not as a matter of fact belong to the seller, or at least there must be valid ground for supposing the existence of a title as in the case of things acquired by inheritance.
From the point of view of the law, prescription is unintelligible without the fact of possession, whether this last stand for the holding of some thing or the enjoyment of some right. Either way the possession referred to must be accompanied by a veritable proprietary state of mind and is not satisfied by fiduciary relations such as trusteeship or by those of deposit, rental, and the like. Theologians exact as necessary qualities of this possession that it should be peaceable, that is, not assailed by lawsuits, sure, uninterrupted, and open, that is, not clandestine. Much stress is laid on the fact of possession by the common law which regards it as the very foundation of prescription. Tenure of property, other requisites being verified, will confer a right by prescription not only to the land or buildings as the case may be but also to such income as may have been derived from them in the meantime.
The plea of prescription cannot be successfully advanced unless it can be shown that possession has been had over a period of time stipulated by law. This space is different for different kinds of goods. The canon law allows prescription of movables on proof of possession for three years with at least a supposed title; without other title than that they have been held a long time, possession for thirty years is required. Against immovable ecclesiastical property prescription may be used only after possession for forty years, whilst a special provision demands an hundred years when the action lies against the Roman Church. The civil law in various countries exhibits such substantial differences in fixing this requirement that there is no way to summarize it. In general a longer time is required for immovable than movable property. In the United States of America many of the States exact twenty years for immovables; in Maine forty years are necessary, whilst in others the time sinks to seven or even five years as in California. In England rights of common and all other profits from land become absolute and indefeasible after sixty years. The same is true of rights of way and easements in general after forty years. Moreover, prescriptive rights may be extinguished and will be presumed to have lapsed when they have not been used for twenty years, or sometimes even less.
—JOSEPH F. DELANY.
IN CIVIL JURISPRUDENCE.—Prescription “in some form and under some name” is said to have existed as a part of the municipal law of every civilized nation, except the Jewish [Angell, “A treatise on the limitations of actions” (Boston, 1876), 5; Broom, “A selection of legal maxims” (London, 1911), 690; Domat, “The Civil law in its natural order”, tr. Strahan (Boston, 1850), sections 2183, 2184], and Devas, “Political Economy” (London, 1901), 491, remarks that “the doctrine of prescription in economics as well as in politics is essential to social welfare.” It is in accord with public policy that ownership of things which the law considers capable of ownership (Broom, op. cit., 279) should not remain forever uncertain, and that litigation should not be immortal, litigants themselves being mortal (Voet, cited on title page, Brown, “The law of limitation as to real property,” London, 1869), and their muniments of title perishable (Angell, op. cit., 2). In the old Roman law usucapio (rem usu capio) was the process by which a Roman citizen’s possession of a corporeal thing during a length of time defined by law “ripened… into full ownership” (dominium) [“ The Institutes of Justinian”, tr. Sandars (London, 1898), II, tit. VI; Pothier, “Pandectae Justinianeae”, XLI, tit. III, 1, 11]. “Fundus”, remarks Cicero (Oratio pro Coina, 26), “a patre relinqui potest, at usucapio fundi, hoc est, finis solicitudinis ac periculi litium, non a patre relinquitur sed a legibus”, the land is derived from the ancestor, but its quiet enjoyment from usucaption. This method of assurance of title was not open to foreigners (peregrini); nor could it be applied to provincial land (solum provinciale), for in such land Roman law recognized no right of ownership, but right of possession only. To supply these defects there was provided under the empire, in favor of foreigners and of possessors of provincial land during a defined time, a written formula of defense or exception, otherwise called a praescriptio, the longi temporis or longce possessionis praescriptio. Taken alone, the word praescriptio simply signified a formula available to defendants in a legal action for the purpose of limiting its inquiry (“The Institutes of Justinian”, Introduction, sect. 104), and possession remained no more than a defense until a law of Justinian allowed a right of action founded on possession for thirty years [Girard, “Manuel elementaire de droit romain” (Paris, 1901), 300, 298], the longissimi temporis possessio [Leage, “Roman Private Law” (London, 1906), 142].
The operation of usucapio was subject to some restrictions similar to those of canon law prescription. A purchaser in good faith and for full value from a thief would not, by usucaption, acquire ownership in the thing stolen, nor would ownership thus accrue to one who acquired possession, knowing that the thing really belonged to another (Leage, op. cit., 135, 136). Nor could property be gained by usucapio or right of possession by praescriptio, in a thing taken by violence (Girard, op. cit., 298; cf. as to praescriptio, 299, note 3). The law of Justinian just referred to conferred ownership on a possessor in good faith, but only if no violence had been used (Leage, op. cit., 142). “Length of time”, remarks Domat, “does not secure unjust possessors from the guilt of sin,… on the contrary, their long possession is only a continuance of their injustice.” But this authority on the modern civil law holds that “civil policy does not permit that possessors be molested after a long possession, or that they be obliged to make good their titles or even to declare the origin of their possession. For the pretext of inquiring after unjust possessors would disturb the peace and quiet of just and lawful possessors” (note to section 2209).
In English law the term prescription is applied to rights only which are defined to be incorporeal hereditaments, such as a right of way or a common or an advowson. “No prescription”, remarks Blackstone, “can give a title to lands and other corporeal substances of which more certain evidence may be had” (Commentaries, II, 264, 266; III, 250).
According to English law if a legal beginning be possible [English Law Reports, 17 Appeal cases (1882), 648; Brown, op. cit., 139], it will be presumed from use during the defined time, such length of use establishing a conclusive presumption that even a person whose use had commenced wrongfully has procured a legal title [Broom, op. cit., 689; Lightwood, “A treatise on possession of land” (London, 1894), 153]. But this presumption only holds against a person who is deemed capable of asserting his rights and who is not under legal disability; for contra non valentem agere nullacurrit praescriptio (Broom, op. cit., 696). Against those unable to act the maxim vigilantibus non dormientibus jura subveniunt—The law assists those who are vigilant, not those who sleep over their rights—does not apply [ibid., 689; Wood, “A treatise on the limitation of actions” (Boston, 1901), 416, 417]. The use necessary to gain right by prescription must not only be long, but “without force, without secrecy, as of right and without interruption” (Wood, op. cit., 418, note), “nec vi, nec clam nec precario” (“The Institutes of Justinian”, II, tit. iii).
Until, as to most instances, altered by modern statutes, the period required to make a prescription good by English law was “time whereof the memory of man runneth not to the contrary”, and the law deemed memory to run as far back at least as the commencement of the reign of Richard I (A.D. 1189) [Stephen, “New Commentaries on the Laws of England” (London, 1908), I, 468, 470; Horwood, “Year Books of the reign of King Edward the First” (London, 1866), 136, 426]. In this requirement of time, prescription and that other immemorial right known as custom were alike. But prescription differs from custom in being personal, while custom is local and for many persons, “generally as an undefined class but of a particular locality” (Brown, op. cit., 213). The English law term for the acquiring of title to land by long possession and claim is adverse possession. In England, during the early Norman period, the discretion of the judges regulated the time within which possessors of land might be disturbed in their possession. Afterwards by various statutes the dates of certain important events, such as the return of King John from Ireland, the coronation of Henry III, or, similarly to prescription, the commencement of the reign of Richard I, limited the commencement of various actions to recover land (Lightwood, op. cit., 154, 155). The earliest statute defining a certain number of years as a limitation to an action affecting land was a statute of 32 Henry 8 [Carson, “Real property statutes” (London, 1902), 124]. Possession of land necessary to gain title by adverse possession must be “so open, notorious and important as to operate as a notice to all parties that it is under a claim of right”; the possessor “must possess, use and occupy the land as owner and as an owner would do,” not as would a mere trespasser (Wood, op. cit., 583, 584).
CHARLES W. SLOANE