CHAPTER II.

PRESCRIPTION COMMONLY SO CALLED AND AS DIS-
TINGUISHED FROM CUSTOM.

SECTION I.

The Nature of Prescription as distinguished from

Custom.

proper.

BESIDES usage from time immemorial (a), as such time Requisites of is understood in law (b), already stated, every prescrip- prescription tion, as distinguished from custom, must be lawful in itself (c), reasonable (d), or, as sometimes negatively expressed, not against reason (e); which is not to be understood of every unlearned man's reason, but of artificial and legal reason warranted by authority of law, lex est summa ratio (f); and certain (g) in its nature, and as to the thing claimed (h), or the thing out of which the right claimed issues (i), and as to the persons claiming (k), and, where claimed in a que estate, as to the lands in respect of which the claim is made; as a modus in satisfaction of tithes arising upon specific lands is a

(a) Vide last Chapter.

(b) Co. Litt. 110 b, 113b; Dow, 32 a et seq.

(e) Com. Dig. Præscription, F. 2.

(d) Ib. E. 4; Coryton v. Lethebye, 2 Saund. 117; Bailey v. Stephens, 12 C. B., N. S. 91; Willingale v. Maitland, 12 Jur., N. S. 932; Hilton v. The Earl Granrille, 5 Q. B. 701; Blackett v. Bradley, 1 B. & S. 940; Wakefield v. The Duke of Buccleugh, 15 W. R. 783; Paddock v. Forrester, 3 M. & G. 903; Att.-Gen.

Involving uncertainty, but reducible to certainty.

prescription for the right or privilege as annexed to particular lands, and can no more exist without a certainty in the lands to which it is annexed, than a shadow without a substance (1).

A prescription may involve, primâ facie, some uncertainty but be reducible to certainty, and therefore, in that particular, free from objection; thus a prescription to take yearly a profit by divers persons out of a certain number of acres to be allotted amongst them yearly in alternis vicibus, parcel of a larger number, being certain as to the number of acres from which the profit is to be taken, is not rendered uncertain by the variation after each year of the particular acres, or the place where they lie; for the yearly allotment determines the certainty of both, and certum est quod certum reddi potest (m).

The claim may be primâ facie unreasonable and uncertain, but, interpreted by the grant presupposed in every prescription, may be, according to the same maxim, both reasonable and certain. Thus where the owners and the occupiers of a farm claimed the sole and exclusive right of pasture and feeding of sheep and lambs on certain land, as a right belonging and appertaining to the farm, not the sheep and lambs of the claimants, but sheep and lambs generally, without restriction; and the question was as to the extent of the right as respects the sheep and animals to be fed, and was determined on the principle to be applied in the interpretation of the assumed grant on which the prescription was founded. This principle, the court said, seems to be to ascertain the extent of the rights conferred, and the rights reserved, by the grant, and to see whether the act be in derogation of the latter. By the terms of this prescription the grantees' right is limited

(1) Bennett v. Read, 1 Anstr. 322, 329.

(m) Welden v. Bridgewater, Cro. El. 421.

to the feeding of sheep and lambs. This would be wholly insensible if the entire pasturage were granted to him in exclusion of the lord. Further, the right to feed by sheep is not limited by number, so as to make it indifferent to the lord by whose sheep the pasturage is enjoyed, but is a grant to the occupier of, and is appurtenant to, the farm. Some interest in the pasturage being reserved to the lord, the questions are, what is that interest?-and is the taking relied on in derogation of it? The court thought the most reasonable conclusion was that the lord's interest was in the consuming, by the mouths of his cattle and horses, whatever was not required for the sheep and lambs levant and couchant on the farm (n), and that from the language of the whole prescription the taking was injurious to such right. The claim therefore was restricted to the sheep and lambs of the owners and occupiers of the farm, and was held not to authorize the pasturing and feeding by them of the sheep and lambs of strangers (o).

In all prescriptive rights the claim, in order to be Restrictions valid, must be made with some limitation and restric- for its validity. tion, both as to the thing to be taken, and the time for taking it (p). Even claims of right in alieno solo not by prescription, in order to be valid, must be made with some limitation and restriction. Therefore an indefinite claim to enter upon and to take out of and from a certain close all the clay in it is, in effect, to take the whole close, and cannot be sustained (9).

Every prescription, as distinguished from custom, Its origin must ought to have by common intendment a

lawful begin

ning (r); and the general rule is that every prescrip

(n) Co. Litt. 122 a.

(0) Jones v. Richard, 5 Ad. & El. 413; 6 Ib. 530, on error.

(p) See Blewett v. Tregonning, 3 Ad. & E. 554; 6 Q. B. 419 et seq., and cases cit.

(q) Clayton v. Corby, 5 Q. B.

415.

(r) Gateward's case, 6 Co. 59; 1 T. R. 667; Doug. 126; 1 Cl, & F. 354.

be lawful.

Its validity determined

by that of the

presupposed grant.

tion, which by any possibility can be supposed to have
had a legal commencement, is good (s). This com-
mencement is by a presupposed grant; for prescription
is allowed only to supply the loss of a grant. Ancient
grants must often be lost, and it would be hard that no
title could be made to things lying in grant, but by
showing the grant. Upon immemorial usage, therefore,
the law will presume a grant, and a lawful beginning,
and allows such usage for a good title, but still only to
supply such loss (t). And although the usage may not
have been from time immemorial, yet if it can have had
a lawful origin within time of memory, such lawful
origin ought to be, and will be, presumed (u).

Assuming then such a grant to have been made, the
validity of it will determine the validity of the prescrip-
tion and therefore requires consideration (v). In such
supposed grant, the capacity of the grantor to make, of
the grantee to take under, and of the thing claimed by
prescription as the subject of it, to pass by such grant,
would be essential to its validity. If the subject claimed
were a judicial office in Ireland, then as that part of the
United Kingdom did not come under the dominion of
the Crown of England until after the time of legal
memory, the Crown could not grant such an office
there (x); or if the thing claimed be claimed against a
corporation created within that time (y); or a person

(s) Per Ashhurst, J., Lord Pelham v. Pickersgill, 1 T. R. 660, 667.

(t) Bro. Abr. Custom, pl. 46; Ventr. 387; Dow, 33 b.; Rowles v. Mason, 2 Brownl. 196, 198; Blundell v. Catterall, 5 B. & Ald. 298, Judgment of Holroyd, J., 295, 296, 297; Lockwood v. Wood, 6 Q. B. 50, 64; Gibson v. Clark, 1 Jac. & W. 159; Paddock v. Forrester, 3 M. & G. 903; Constable v. Nicholson, 14 C. B., N. S. 230; Carter v. Murcut, 4 Burr. 2162,

2165; Att.-Gen. v. Matthias, 4
Jur., N. S. 628.

(u) Lawrence v. Hitch, L. R.,
3 Q. B. 521.

(v) See Jones v. Richard, 6 Ad. & E. 530.

(x) See Ex parte Shaw, Beatty, 24, 34.

(y) Co. Litt. 102 b; Pitts v. Gainee, 1 Lord Raym. 558; The King and Edwards v. The Bailiffs of Allborough, 1 Keb. 308; Att.-Gen. v. Luton Board of Health, 2 Jur., N. S. 180.

incapable of making a grant (z); or if the thing claimed be claimed by such a corporation, or by a class of persons not incorporated and having no capacity to take by grant from a private person, as the parishioners or inhabitants of a certain place (a), at least where the thing claimed is a benefit or profit in alieno solo, and not a mere easement only (b), although they may have such capacity if the grant to them were from the Crown (c); or by persons who, although originally having such capacity, have been since deprived of it (d); or the thing claimed could not have been the subject of a grant, as the offices just mentioned, or an office created since the time of legal memory; or the subject of the prescription has been the subject of a grant made since that time (d); or the grant of the thing would be unreasonable, or absurd and an impossibility (e), for the supposed grant should correspond to the user; and where the right is claimed in or out of land, the grant should be such as may and does include the whole of the land (ƒ).

extent.

The extent of a prescriptive right is sometimes de- And also its termined by ascertaining what would be the interpretation of the presupposed grant on which the prescriptive right is founded ( g).

(-) See Bryan v. Whistler, 8 B. & C. 288; Barker v. Richardson, 4 B. & Ald. 579.

(a) Co. Litt. 3a; Touch. 237; Abbott v. Weekly, 1 Lev. 176; 4 Co. 32; Gateward's case, 6 Ib. 59; Fitch v. Rawling, 2 H. B. 393; Tyson v. Smith, 9 Ad. & E. 406; 5 B. & Ald. 279; 9 Ad. & E. 417, 421; Lockwood v. Wood, 6 Q. B. 50.

(b) Gateward's case, 6 Co. 59; Baker v. Brereman, Cro. Car. 418; Lockwood v. Wood, supra.