CHAP. IV.

TITLE BY PRESCRIPTION.

THE legal term "prescription" has been so frequently referred to, and it is a title so often relied upon for the acquisition and enforcement of rights connected with the occupation of collieries, that it is proposed to insert an outline of this description of title. Prescription is said to be a title by long usage. In other words, where any person, and those under whom he claims, have, to the knowledge of those against whom he asserts the right, been in the habit from time immemorial of using and exercising some incorporeal right, such as rights of way, of common, use of water, pews, &c. &c., and can show no other title to such right; he is said to claim and enjoy it by prescription. The notion which lies at the root of this title is, that if the owners of property permit, for a long course of years, adverse rights which tend to lessen their exclusive enjoyment of their own, it is reasonable to suppose that there must once have been a legal origin for such claim, and that the grant which conveyed it has been lost. Custom is a local usage; prescription is a personal usage, attaching to a man and his ancestors, or those whose estate he holds.

Down to a very recent period, it was a necessary ingredient in this title that the usage should have been immemorial, that it must have existed beyond the memory of man, or so long that, as Lyttleton says, no living witness has heard any proof, or had any knowledge to the contrary;" and, as another writer of authority says, "that there is no proof by record or writing, or otherwise, to the contrary."

was a maxim of the law that the time of legal memory meant the beginning of the reign of Richard the First. But though it was not necessary to prove the existence of the alleged usage from that time, and the exercise of it for a long period was said to raise the presumption that the usage had continued during the whole period of legal memory, yet it was sufficient to invalidate the title to show that it had commenced since the time of Richard the First.

A recent statute, however, 2 & 3 Will. IV. c. 71, called an "Act for shortening the time of Prescription in certain cases," has greatly altered this theory. Its principal enactments, so far as they touch any right with which this treatise can be concerned, are the following.

Section 1 enacts that no claim which may be lawfully made at the common law by custom, prescription, or grant, to any right of common, or other profit or benefit to be taken and enjoyed from or upon any land of any person (except such matters as are specially provided for, and except tithes, rent, and services), shall, where such right, profit, or benefit shall have been actually enjoyed by any person

claiming right thereto, without interruption, for the full period of thirty years, be defeated by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years. Nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated. When such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given, by deed or writing.

Section 2 contains an enactment concerning ways and other easements, and watercourses and the use of water. This enactment is exactly like that contained in Sect. 1, which relates to rights of common, &c., except that it substitutes the period of twenty years for thirty years, and forty years for sixty.

Section 3 enacts to the same effect, as to the use of light for any dwelling house, &c.

Section 4 enacts that each of the respective periods of years above mentioned shall be taken to be the period next before some suit or action in which the claim or matter, to which such period may relate, shall have been or shall be brought into question; and no act or other matter shall be deemed to be an interruption within the meaning of the Act, unless it shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had, or shall have, notice thereof, and of the person making or authorising the same to be made.

Section 6 enacts that in the cases provided for by the Act, no presumption shall be allowed in favour of any claim, upon proof of the exercise or enjoyment of the right or matter claimed, for any less period of time or number of years, than for such period or number mentioned in that Act, as may be applicable to the case and claim.

Section 7 enacts that the time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an idiot, infant, non compos mentis, fême covert, or tenant for life, or during which any action or suit shall have been pending, and diligently prosecuted, or abated by the death of any parties thereto, shall be excluded in the computation of the periods therein-before mentioned, except in cases where the right or claim is by the Act declared to be indefeasible.

Section 8 enacts that when any land or water, over or from which any such way or other convenient watercourse, or use of water, shall have been or shall be enjoyed or derived, has been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter during the continuance of such term shall be excluded from the forty years, if the claim shall within three years next after the end, or sooner termination of such term, be resisted by any person entitled to any reversion on the termination thereof.

CHAP. V.

FIXTURES.

THE word "fixture " has acquired the peculiar meaning of chattels which have been annexed to the freehold, but which are removable at the will of the person who annexed them. In the case of Ex parte Barclay, 5 De G. M. & G. p. 403, fixtures were defined to be "such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold; such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things." By the expression" annexed to the freehold," is meant fastened to it or connected with it; mere juxtaposition, or the laying of an object, however heavy, on the freehold, does not amount to annexation. But whatever is so affixed becomes part of the realty, and the person who was the owner of it when it was a chattel loses his property in it, which immediately vests in the owner of the soil. It can only revert to the original owner of the chattel by severance and removal, by virtue of certain exceptions allowed by law. It is upon this principle that in calculating the rateable value of