Prescription
(Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
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.
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.
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.
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 theconditions 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.
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.
