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(Latin prœ , before, and scribere , to write, in later legal Latin involving the idea of limitation)

A prescription 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 pretence 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.


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