The things which may be claimed by prescription at Things incorporeal, common law, one writer says, must be, legally speaking, of an incorporeal nature (a). The nature of some things however which may be so claimed is not always incorporeal, but is, as will presently appear, sometimes corporeal. Other writers say incorporeal hereditaments only (b). But incorporeal hereditaments are only one class of such things. Another writer says incorporeal rights alone can be so claimed (c). But rights, as a species of things in law, are not, as things are, divisible into corporeal and incorporeal; and if mere rights, apart from the object of them, were regarded as the subjects of prescription at common law, land, which will be hereafter shown not to be the subject of such prescription, would be the subject of it. Distinguishing a right from the object of it, things corporeal and personal, as and some treasure trove, waifs, estrays, wreck of the sea (d), which things corporeal and is estray on the sea coming to land, as estray of beasts personal. is on the land coming within any privileged place (e), the royal fishes, whales, sturgeons, and porpoises, royal fowl, as swans (ƒ), and the like (g), as well as things incorporeal, may be claimed by prescription. They must before time of have existed The things which may be claimed by prescription at common law must have had existence before the time of legal memory (h), and must also be such as might legal memory and be grantbe the subject of grant either from the Crown or the able. Duke of Cornwall (i), and which the Crown, without (a) 2 Woodd. 51. (b) 2 Com. 264; 3 Cru. Dig. 421. (c) Phear on Waters, 76. (d) Plowd. 322; Hale De Jure Maris, passim; 5 B. & Ald. 293; 2 Brod. & B. 403. (e) 5 Rep. 108. (g) Co. Litt. 114 b. (h) Griffith v. Matthews, 5 T. Things of profit, easements, privileges. Toll. derogating from the public right, could grant (j); or from a private person (k), or of a reservation (7), equivalent to a grant (m). If not grantable they cannot be so claimed (n). When claimed as appendant or appurtenant, they must be of such a nature as may claimed (o), and not in gross only (p). be so Things claimed by prescription at common law are commonly either things of profit, or easements or privileges (7), as to take a profit or benefit from or out of the lands of another person, apart from the land or soil itself, as common, and either appendant or appurtenant, of which prescription is the mother (r); or in gross, or to have an easement in the land of another, even from or in the land of the Crown or the Duke of Cornwall, notwithstanding the maxim nullum tempus occurrit regi (s); or by them from or in the land of a subject, or the use of water or of light; the right for the freehold tenants of a manor to dig and carry away stones for repairing their houses or for building others (t) may be claimed by prescription. The right to take toll (u), and as well toll-traverse, or toll for passing over the soil of a private person where the public had no right to pass before, not im (j) See Mayor, &c. of Northampton v. Ward, 1 Wilson, 107; The Mayor of Nottingham v. Lambert, Willes, 111; Gann v. The Free Fishers of Whitstable, 11 H. L. C. 192. (k) 5 Rep. 59; Dow. 336; 1 Ventr. 387. (1) See Richards v. Bennett, 1 B. & C. 223. (m) Touch. 80; Co. Litt. 47 a; Seymour v. Lord Courtenay, 5 Burr. 2814; Moore v. Earl of Plymouth, 7 Taunt. 614; Doe d. Douglas v. Lock, 2 Ad. & E. 743; Wickham v. Hawker, 7 M. & W. 63. (n) Howel v. King, 1 Mod. 191; Bailey v. Stephens, 12 C. B., N. S. 91; Constable v. Nicholson, 14 Ib. 230. (0) Co. Litt. 121b; Bailey v. Stephens, supra. (p) Ib. Ackroyd v. Smith, 10 C. B. 164. (q) Gateward's case, 6 Rep. 59; Potter v. North, Ventr. 383; Grimstead v. Marlowe, 4 T. R. 717; Rex v. Churchill, 4 B. & C. 755; 6 D. & R. 635, S. C.; Blewett v. Tregonning, 3 Ad. & E. 554. (r) Co. Litt. 121 b. V. Roberts, (u) Lewis v. The Overseers of Swansea, 5 Ell. & B. 508; Lanrence v. Hitch, L. R., 3 Q. B. 521. porting a consideration, but not requiring it to be shown, because not against common right (x), as toll-thorough, or toll for passing over a public highway, as distinguished from a licence to use the soil of it (y), importing a consideration, and requiring it to be shown, because against common right (z), or such length of usage as will warrant its being presumed must be shown, may be claimed by prescription (a). The performance of a prescriptive obligation, as to To repair repair fences (b), a privilege (c) or discharge (d), or an exemption from the payment of toll (e). fences. Exemption from toll, tithes. A qualified exemption or discharge of lands by modus -render of decimandi from the render of tithes (ƒ), or, as in the case of spiritual persons (g), and, in some cases of lay persons, claiming the lands of spiritual persons (h). An absolute discharge, de non decimandi, from such render may be claimed by prescription. At common law, indeed, the latter discharge could not be claimed by lay persons, because they, except in special cases, were not capable of tithes at the common law, and therefore, without special matter shown (i), it was not to be intended that they had any lawful discharge. And for this reason, in favorem ecclesiæ, lest laymen should spoil the church (k), or rather, as Hobart says (1), from an absolute and conclusive presumption of law admitting (a) 3 T. R. 264. (y) Lawrence v. Hitch, L. R., 3 Q. B. 521. (2) 3 T. R. 264. (a) Lord Pelham v. Pickersgill, 1 T. R. 660, and cases cited; 3 Ib. 264; F. N. B. 227, n. (b); Richards v. Bennett, 1 B. & C. 223; The Mayor of Northampton V. Lambert, Willes, 111. (b) See Holbach v. Warner, Cro. Jac. 665; Starr v. Rookesby, 1 Salk. 335; Anon., 1 Ventr. 264. (c) Day v. Savadge, Hob. 86; 1 Ventr. 386; Co. Litt. 114 b. (d) Bro. Stat. Lim. 36. (e) F. N. B. 226; Bro. Stat. Lim. 39; 4 Inst. 252; 1 H. Bl. 206; (f) Bennett v. Read, 1 Anstr. (g) 2 Rep. 44; Nash v. Mollins, (h) 2 Com. 32; Crouch v. The creation tion. no evidence to the contrary, præsumptione juris et de jure (m), that a layman cannot be absolutely discharged of tithes, and, therefore, will not allow a prescription of such discharge; and although the discharge by grant is allowed when the grant appears, yet when it appears not, stabitur præsumptioni donec probetur in contrarium (n). Such a prescription by laymen was an exception to the principle that antiquity of time fortifies all titles, and supposeth the best beginning the law can give (o). The legislature has now abolished this exception, and made that principle of universal application (p). A corporation (q) may claim its creation by prescripof a corpora- tion, and may prescribe by several names, but all of them must have been used before the time of legal memory (r), and a mere change of name will not affect its prescriptive origin (s). Calling a place an ancient borough may, of itself, imply a borough by prescription (t). Office. An office of perpetual subsistence, and also land, as an accessory to such an office, may be claimed by prescription (u). But, perhaps, in England only; for, in Ireland, the dominion of the king of England over it commenced much within the time of legal memory (r). The franchise of portum maris, and also land as an portum maris. incident thereto, may be claimed by prescription; for in ordinary presumption, the claimant of such a franchise has not only the franchise itself, but the very water and soil within the port (y). Franchise of Mayor, &c. of Truro v. Reynalds, (u) See Plowd. 169; W. Jo. 281; Co. Litt. 114 b, 121 b, 122 a; Scambler v. Waters, Cro. El. 636; Bishop of Salisbury's case, 10 Rep. 58 b; Cro. Jac. 605. (a) Per Lord Manners, C., Ex parte F. Shaw, Beatty, 24, 34. (y) Hale, De Jure Maris, pt. i. c. vi. 33, pt. ii. cc. iii., iv., v. A chancel, or an aisle, or a pew, either in an aisle, Chancel, aisle, or in the nave of a church, may be claimed by prescrip- pew. tion (z). A claim to burial in a particular vault is for an ease- Right of sepulment, and not an interest in land, and therefore must be ture. created by deed (a); and although a parson cannot create such an easement, yet it seems it may be claimed by prescription. A man may prescribe that he is tenant of an ancient messuage, and ought to have separate burial in such a vault within the church (b); and although such a right cannot be created by grant, yet may be by a faculty, which is, for such purpose, equivalent to a grant, and, as in the case of a pew (c), may, in support of the claim, be presupposed (d). Solam ves A prescription for separalem pasturam (e), or for Separatem solam vesturam terræ from such a day to such a day (ƒ), pasturam. and either by a commoner against the lord, or by one turam terræ. commoner against another (g), is good, and will exclude the owner of the soil from such part, but not from all the profit, for he shall have the mines, trees, &c. (h). sive of the owner of the A prescription for the sole and exclusive right of pas- When excluture and feeding for some commonable beasts, will not exclude the owner of the soil from pasturing and feeding soil. his commonable beasts of another kind (i), for the presupposed grant would be thus interpreted (k); as in the case of an express grant to dig for ore in the lands of the grantor, although creating in the grantee an interest (z) See Churton v. Frewen, 12 Jur., N. S. 879, and cases cited. (a) Bryan v. Whistler, 8 B. & C. 288. (b) Com. Dig. Cemetery, B. (e) See Griffith v. Matthews, 5 T. R. 296. (d) Bryan v. Whistler. (e) See Co. Litt. 122 a; North v. Coe, Vaugh. 255; Potter v. North, 1 Ventr. 383; Welcome v. (h) Co. Litt. 4b; Potter v. (i) Jones v. Richards, 6 Ad. & E. 530. (k) Ib.; Co. Litt. 122 a. |