A method of acquiring a nonpossessory interest in land through the long, continuous use of the land.
Prescription refers to a type of easement—the right to use the property of another. It requires the use of the land to have been open, continuous, exclusive, and under claim of right for the appropriate statutory period. It differs from Adverse Possession in that adverse possession entails the acquisition of title to the property, whereas prescription relates to a right to use the property of another that is consistent with the rights of the owner.
n. the method of acquiring an easement upon another's real property by continued and regular use without permission of the property owner for a period of years required by the law of the state (commonly five years or more). Examples: Phillip Packer drives across the corner of Ralph Roundup's ranch to reach Packer's barn regularly for a period of ten years; for a decade Ralph Retailer uses the alley back of Marjorie Howard's house to reach his storeroom. In each case the result is a "prescriptive easement" for that specific use. It effectively gives the user an easement for use but not ownership of the property. (See: prescriptive easement)
In Scotland the word is used in a similar way in relation to the acquisition of rights. The positive prescription in Scotland is ten years. It allows a person who has possessed land openly, peaceably and without interruption on the strength of an ex facie valid recorded title covering the land in question, to obtain a good title to it. In cases of the acquisition of servitude rights or rights in the foreshore or salmon fishings, the positive prescription is 20 years. In Scotland the word prescription is used in a negative sense of shutting off stale claims in a way very similar to that sense denoted by the word limitation in England. Limitation was not a native Scottish concept. Thus, there is a five-year short-negative prescription that cuts off very many claims - the most significant being mostly claims for damages or payment with the exception of claims for personal injuries, which are dealt with by way of limitation. The main difference between prescription and limitation is that limitation must be pled whereas prescription operates by law and can be noticed by the court. There is in addition a long-negative prescription of 20 years, which shuts off claims not already closed by the limitation period or the short negative prescription or a category of obligation known as imprescriptible, the most significant of which are obligations under solemn deeds and the obligations of a trustee in respect of trust property. See also LATENT DAMAGE, LIMITATION, PRODUCT LIABILITY.
PRESCRIPTION. The manner of acquiring property by a long, honest, and
uninterrupted possession or use during the time required by law. The
possession must have been possessio longa, continua, et pacifica, nec sit
ligitima interruptio, long, continued, peaceable, and without lawful
interruption. Domat, Loix Civ. liv. 3, t. 29, s. 1; Bract. 52, 222, 226; Co.
Litt. 113, b; Pour pouvoir prescire, says the Code Civil, 1. 3, t. 20, art.
22, 29, il faut une possession continue et non interrompue, paisible,
publique, et a titre de proprietaire. See Knapp's R. 79.
2. The law presumes a grant before the time of legal memory when the
party claiming by prescription, or those from whom he holds, have had
adverse or uninterrupted possession of the property or rights claimed by
prescription. This presumption may be a mere fiction, the commencement of
the user being tortious; no prescription can, however, be sustained, which
is not consistent with such a presumption.
3. Twenty years uninterrupted user of a way is prima facie evidence of
a prescriptive right. 1 Saund. 323, a; 10 East, 476; 2 Br. & Bing. 403;
Cowp. 215; 2 Wils. 53. The subject of prescription are the several kinds of
incorporeal rights. Vide, generally, 2 Chit. Bl. 35, n. 24; Amer. Jurist,
No. 37, p. 96; 17 Vin. Ab. 256; 7 com. Dig. 93; Rutherf. Inst. 63; Co. Litt.
113; 2 Conn. R. 584; 9 conn. R. 162; Bouv. Inst. Index, h.t.
4. The Civil Code Louisiana, art. 3420, defines a prescription to be a
manner of acquiring property, or of discharging debts, by the effect of
time, and under the conditions regulated by law. For the law relating to
prescription in that state, see Code, art. 8420 to 3521. For the difference
between the meaning of the term prescription as understood by the common
law, and the same term in the civil law, see 1 Bro. Civ. Law, 246.
5. The prescription which has the effect to liberate a creditor, is a
mere bar which the debtor may oppose to the creditor, who has neglected to
exercise his rights, or procured them to be acknowledged during the time
prescribed by law. The debtor acquires this right without any act on his
part, it results entirely from the negligence of the creditor. The
prescription does not extinguish the debt, it merely places a bar in the
hands of the debtor, which he may use or not at his choice against the
creditor. The debtor may therefore abandon this defence, which has been
acquired by mere lapse of time, either by paying the debt, or acknowledging
it. If he pay it, he cannot recover back the money so paid, and if he
acknowledge it, he may be constrained to pay it. Poth. Intr. au titre xiv.
des Prescriptions, Bect. 2. Vide Bouv. Inst. Theo. pars prima, c. 1, art. 1,
Sec. 4, s. 3; Limitations.