Prescription (redirected from positive prescription)

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.

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prescription 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)

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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.