by prescription; for they arise from private contingencies, and not from any matter of record. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate (that is, in himself and those whose estate he holds), nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim anything as the consequence, or appendix of an estate, with which the thing claimed has no connection; but, if he prescribes in himself and his ancestors, he may prescribe for anything whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross. Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition than as an acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal.

DIGBY, HIST. REAL PROP., Ch. III., § 18 (1). With regard to the origin of servitudes, or the modes in which they may be acquired, Bracton correctly lays down the two modes which have always been recognized, grant (dominorum constitutio) and prescription (usus). Feoffment with livery was confined to granting freehold estates over land. It was not applicable to the class of rights in land under consideration. Hence the other principal mode of creating rights was adopted, namely, writing under seal, and it became a principle that for the creation of a servitude (easement or profit) a grant by deed was necessary.

The other mode of acquiring servitudes is, according to Bracton, per longum usum continuum et pacificum. The user must have been as of right, not violent, or clandestine, or permissive. These principles, borrowed from the Romans, took root in our law. Only, as time went on, the notion of prescription underwent a change. Long enjoyment of a right was not considered, as was the case in the Roman system, and as Bracton's language here implies, as itself a positive mode of acquisition, but only as evidence that at some period the owner of the soil had created the right in question by a lost or forgotten deed.

ID., Ch. X., § I. Before the passing of the Prescription Act' this mode of acquiring rights in alieno solo was regarded exclusively as a species of title by grant, differing only from an express grant in the evidence by which it was established. If it be proved that the right has been in fact enjoyed as far back as memory can trace it, and no origin of the right be shown, the presumption is that it has been enjoyed from time immemorial, that is, from some period anterior to the first year of Richard I., the time at which legal memory commences, and that it was created before that period by the owner of the soil. And even if the right were shown to have been created within the time of legal memory, juries were directed, when the right was in question, to presume that as a fact the right had been expressly granted by the owner of the soil, and that the grant had 12 & 3 Will. IV., c. 71.

been lost. This mode of supporting rights was felt to be most unsatisfactory, and at length the Prescription Act was passed, by which a perfect title to easements and profits is conferred upon persons who have enjoyed them as of right continuously for certain periods of time specified in the Act. Its provisions are somewhat complicated, but the practical effect is that the enjoyment of an easement, as, for instance, of a way or of the access of light and air through a window for twenty years, and the enjoyment of a profit à prendre, as, for instance, of pasturage on a common, for thirty years, works the acquisition of the right. The enjoyment must, except in the case of light, be by a person claiming right thereto, hence it may be defeated by showing that it has been enjoyed avowedly in exercise of some continuing permission or authority of the owner of the soil.

B. UNDER MODERN STATUTES.

1. Voluntary Alienation.

CHAPTER I.

UNDER THE STATUTE OF USES.

DIGBY, HIST. REAL PROP., Ch. VII., § 2. The Statute of Uses at once produced important effects upon the old modes of conveying the legal estate in lands. It has been already seen what were the appropriate modes of conveying freehold estates at common law. If the freehold was to pass immediately from the grantor to the grantee, feoffment with livery of seisin was the only appropriate mode. In practice the same result was accomplished by the fictitious processes of fines and recoveries. It has also been seen under what circumstances the Chancellor would before the Statute have held that the party taking by the common law conveyance would hold to the use, not of himself, but of the grantee or some other person. Wherever, with certain exceptions to be hereafter noticed,' such a construction would before the Statute have been put upon the conveyance by the Chancellor-wherever a use would have been raised in favor of some person other than the feoffee or grantee at common law, by reason either of an express declaration of the use, or of circumstances from which the intention of raising the use would necessarily have been inferred, in all such cases after the Statute the legal state passed to the person in whose favor the use was declared or implied.

*

The distinction made in the text-books between the rais'Active trusts, trusts of leasehold interests, and uses upon uses. See page 165, supra.

ing of a use by a conveyance operating by transmutation of possession, and raising a use without transmutation of possession, has already been noticed.1 In the former case a mode of conveyance is employed sufficient at common law to take the estate out of the donor and to vest it in the donee. To this conveyance is superadded, either by express words or by necessary implication, the obligation upon the donee to hold to the use of the donor or of some third person, or of the donor together with some third person . .

Uses are raised without transmutation of possession when the legal owner of lands binds himself to hold the lands for the use of some other person. It has already been seen that the usual mode of effecting this before the Statute was by bargain and sale, or covenant to stand seised. In these cases the use, which before the Statute was raised in favor of the covenantee or bargainee, is now executed by the Statute, and thus these two assurances take their places as modes of conveying the legal interest in lands. Thus A. covenants to stand seised for B. his eldest son and his heirs, or in consideration of £100 bargains and sells his lands to C. and his heirs. B. and C. by force of the Statute take an estate in fee simple in precisely the same way as if that estate had been conveyed to them respectively by feoffment at common law.

LEAKE, LAND LAW, 108. Upon principles of equity any agreement, supported by a valuable consideration, to the effect that an estate or interest in land should be conveyed, as it might be specifically enforced in the Court of Chancery, was held to entitle the purchaser to the use or beneficial ownership according to the terms and intent of the agreement, without any legal conveyance; and accordingly the vendor was held to be or stand seised to the use of the purchaser. Such transaction, as creating a use executed by the statute, became technically known as a bargain and sale.

An agreement unsupported by a valid consideration, or a 1 See page 139, supra.--ED. See page 139, supra.—ED.