44 HARVARD LAW REVIEIV.
path. But the plaintiff never prevented the defendant, or attempted to prevent him, by physical force, from using the path, nor did he ever obstruct it, nor, until this suit, had he brought any action against the defendant.
The Statute of Limitations to suits for the recovery of land is ten years.
On the facts above stated, which were not in dispute, the judge directed a verdict for the defendant, which was returned, and the plaintiff alleged exceptions.
W. H. Cawles and L. P. Frosty for the Plaintiff.
H. H. Johnson and H. N. Castle^ for the Defendant.
Gray, J. Statutes providing for the acquisition of easements by lapse of time are comparatively modern. The claim to an easement could always be supported by immemorial prescription, but when, by 3 Edw. I. c. 39, it was enacted that in a writ of right none should declare of the seisin of his ancestors prior to 1 189, the courts, by analogy to that statute, held that the enjoyment of an easement from before that year would give a good title.
When the 32 Henry VIII. c. 2, shortened the time which would bar a writ of right to a period of sixty years before the teste of the writ, the courts did not shorten the time for acquiring an easement accord- ingly, but the year 11 89 still remained the date from which such time was to be reckoned.
Later, indeed, it was held that the enjoyment of an easement for twenty years raised a presumption that it had existed from 1 189. But this presumption was rebuttable, and could often be easily rebutted.
To take away, however, a right which had been enjoyed perhaps two hundred years because it could be shown that it had not existed five hundred years, was not to be endured. The judges escaped this result by instructing juries, that if a man had enjoyed an incorporeal heredita- ment for twenty years, they might presume that he had received a grant of it which had been lost. This was at first a mere presumption of fact, which juries might disregard if they pleased. It was gradually hardening in England into a presumption of law, when the Prescription Act of 2 and 3 Wm. IV. c. 71 (1832) was passed. In Angus v. Dalton^ 3 Q. B. D. 85 ; 4 Q. B. D. 162 ; 6 Ap. Cas. 740, a question arose which had slipped through the meshes of this Act, and had to be decided without its aid. The great majority of the judges in that case were of opinion that the presumption of a lost grant raised by twenty years' enjoyment was a presumption of law. As might be expected when a legal conception has been passing through such a transition, the language of judges and writers concerning it is vacillating and confusing.
In this country the time held necessary to raise a presumption ' of a lost grant has generally followed every change in the Statutes of Limi- tations; the nature and effect of personal disabilities in determining questions of prescription have been borrowed from those Statutes ; and several courts have of late rejected the doctrine of a lost grant, and declared that the presumption of such a grant is an unnecessary fiction; that though it might once have had its use as a scaffolding before the modern doctrine of prescription was established, it is now to be con- sidered setded that the statute provisidns as to the limitation of actions
