Prescription[[442]] may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. It is of two kinds, namely (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years. An instance of the latter is the destruction of the right to sue for a debt after six years from the time at which it first became payable.
Lapse of time, therefore, has two opposite effects. In positive prescription it is a title of right, but in negative prescription it is a divestitive fact. Whether it shall operate in the one way or in the other depends on whether it is or is not accompanied by possession. Positive prescription is the investitive operation of lapse of time with possession, while negative prescription is the divestitive operation of lapse of time without possession. Long possession creates rights, and long want of possession destroys them. If I possess an easement for twenty years without owning it, I begin at the end of that period to own as well as to possess it. Conversely if I own land for twelve years without possessing it, I cease on the termination of that period either to own or to possess it. In both forms of prescription, fact and right, possession and ownership, tend to coincidence. Ex facto oritur jus. If the root of fact is destroyed, the right growing out of it withers and dies in course of time. If the fact is present, the right will in the fulness of time proceed from it.
In many cases the two forms of prescription coincide. The property which one person loses through long dispossession is often at the same time acquired by some one else through long possession. Yet this is not always so, and it is necessary in many instances to know whether legal effect is given to long possession, in which case the prescription is positive, or to long want of possession, in which case the prescription is negative. I may, for example, be continuously out of possession of my land for twelve years, without any other single person having continuously held possession of it for that length of time. It may have been in the hands of a series of trespassers against me and against each other. In this case, if the legally recognised form of prescription is positive, it is inoperative, and I retain my ownership. But if the law recognises negative prescription instead of positive (as in this case our own system does) my title will be extinguished. Who in such circumstances will acquire the right which I thus lose, depends not on the law of prescription, but on the rules as to the acquisition of things which have no owner. The doctrine that prior possession is a good title against all but the true owner, will confer on the first of a series of adverse possessors a good title against all the world so soon as the title of the true owner has been extinguished by negative prescription.
The rational basis of prescription is to be found in the presumption of the coincidence of possession and ownership, of fact and of right. Owners are usually possessors, and possessors are usually owners. Fact and right are normally coincident; therefore the former is evidence of the latter. That a thing is possessed de facto is evidence that it is owned de jure. That it is not possessed raises a presumption that it is not owned either. Want of possession is evidence of want of title. The longer the possession or want of possession has continued, the greater is its evidential value. That I have occupied land for a day raises a very slight presumption that I am the owner of it; but if I continue to occupy it for twenty years, the presumption becomes indefinitely stronger. If I have a claim of debt against a man, unfulfilled and unenforced, the lapse of six months may have but little weight as evidence that my claim is unfounded or that it has been already satisfied; but the lapse of ten years may amount to ample proof of this.
If, therefore, I am in possession of anything in which I claim a right, I have evidence of my right which differs from all other evidence, inasmuch as it grows stronger instead of weaker with the lapse of years. The tooth of time may eat away all other proofs of title. Documents are lost, memory fails, witnesses die. But as these become of no avail, an efficient substitute is in the same measure provided by the probative force of long possession. So also with long want of possession as evidence of want of title; as the years pass, the evidence in favour of the title fades, while the presumption against it grows ever stronger.
Here, then, we have the chief foundation of the law of prescription. For in this case, as in so many others, the law has deemed it expedient to confer upon a certain species of evidence conclusive force. It has established a conclusive presumption in favour of the rightfulness of long possession, and against the validity of claims which are vitiated by long want of possession. Lapse of time is recognised as creative and destructive of rights, instead of merely as evidence for and against their existence. In substance, though not always in form, prescription has been advanced from the law of evidence to a place in the substantive law.
The conclusive presumption on which prescription is thus founded falls, like all other conclusive presumptions, more or less wide of the truth. Yet in the long run, if used with due safeguards, it is the instrument of justice. It is not true as a matter of fact that a claim unenforced for six years is always unfounded, but it may be wise for the law to act as if it were true. For the effect of thus exaggerating the evidential value of lapse of time is to prevent the persons concerned from permitting such delays as would render their claims in reality doubtful. In order to avoid the difficulty and error that necessarily result from the lapse of time, the presumption of the coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so within that period; otherwise his right, if he has one, will be forfeited as a penalty for his neglect. Vigilantibus non dormientibus jura subveniunt.
Prescription is not limited to rights in rem. It is found within the sphere of obligations as well as within that of property. Positive prescription, however, is possible only in the case of rights which admit of possession—that is to say, continuing exercise and enjoyment. Most rights of this nature are rights in rem. Rights in personam are commonly extinguished by their exercise, and therefore cannot be possessed or acquired by prescription. And even in that minority of cases in which such rights do admit of possession, and in which positive prescription is therefore theoretically possible, modern law, at least, has seen no occasion for allowing it. This form of prescription, therefore, is peculiar to the law of property. Negative prescription, on the other hand, is common to the law of property and to that of obligations. Most obligations are destroyed by the lapse of time, for since the ownership of them cannot be accompanied by the possession of them, there is nothing to preserve them from the destructive influence of delay in their enforcement.[[443]]
Negative prescription is of two kinds, which may be distinguished as perfect and imperfect. The latter is commonly called the limitation of actions, the former being then distinguished as prescription in a narrow and specific sense. Perfect prescription is the destruction of the principal right itself, while imperfect prescription is merely the destruction of the accessory right of action, the principal right remaining in existence. In other words, in the one case the right is wholly destroyed, but in the other it is merely reduced from a perfect and enforceable right to one which is imperfect and unenforceable.
An example of perfect prescription is the destruction of the ownership of land through dispossession for twelve years. The owner of land who has been out of possession for that period does not merely lose his right of action for the recovery of it, but also loses the right of ownership itself. An example of imperfect prescription, on the other hand, is the case of the owner of a chattel who has been out of possession of it for six years. He loses his right of action for the recovery of it, but he remains the owner of it none the less. His ownership is reduced from a perfect to an imperfect right, but it still subsists. Similarly a creditor loses in six years his right of action for the debt; but the debt itself is not extinguished, and continues to be due and owing.