Bracton: Thorne Edition: English. Volume 2, Page 158

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Volume 2, Page 158

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How possession of a right not subject to livery is acquired by long use.

[002] We have explained how one acquires possession of a corporeal thing through lapse
[003] of time and without livery, with use or without it. Now we must show how possession
[004] of an incorporeal thing, as the possession of a right, that is, of a servitude, is
[005] acquired by acquiescence which is ascribed to consent and long and peaceful use,
[006] without any act of creation or express agreement. [From such use and acquiescence
[007] a constitution and agreement is presumed.]¹ [Acquiescence is taken for consent, and
[008] as consent may be tacit or express, so agreement may be tacit or express.] The
[009] possession of a right is acquired by use, as where an owner, being present and cognizant
[010] of the matter, by acquiescence permits a neighbour, who has no right to do so,
[011] to use some servitude in his unencumbered estate (as that of pasturing cattle, a
[012] right of passage, a right to drive beasts or of conducting water or the like) for a long
[013] time, peacefully and without interruption,² so that the user cannot be ejected without
[014] writ and judgment. ‘He being present and cognizant of the matter,’ I say, for
[015] if he is absent, or present and without knowledge and would prohibit the use if he
[016] knew of it, such use will be ineffective, since it is clandestine.³ So if it is nocturnal,
[017] or forcible.⁴ So if it is a servitude at will which may be revoked in season,⁵ and out
[018] since it depends solely upon the grace and favour of the grantor, as one from time
[019] to time. [If] from term to term, as from year to year, for a service certain,⁶ or for an
[020] uncertain service for a fixed term,⁷ [that is], provided either [the payment or] the
[021] service is certain or⁸ the term, possession will be genuine and sufficient. But if the
[022] service is uncertain, whether the term is fixed or not, as where sometimes more is
[023] done, sometimes less, there will be a lease of herbage rather than a right of pasture.⁹
[024] If in the absence of the true lord one uses with the acquiescence and permission of a
[025] servant, or of another who has no right to grant it or to create a servitude, such use
[026] will not suffice nor will it be good with respect to acquiring possession.¹⁰

On acquiring the dominion of incorporeal things, as rights, liberties and servitudes.

[028] We have shown above how the dominion of corporeal things capable of livery is
[029] acquired through the causa of gift, and how it is then transferred from person to
[030] person by livery, or quasi-livery,¹¹ by mutual consent, tacit or express: tacit, which
[031] suffices for livery because the gift is not expressly revoked though it may be; express,
[032] [that is], by express ratification.¹² Also

Notes

1. ‘ex tali ... et voluntate,’ from lines 12-13; ‘constitutione’ for ‘consensu’

2. Supra n. 1; om: ‘Et ita ... ex tempore,’ a connective

3. Infra 168, iii, 163, 166

4. Supra 157, infra iii, 163, 165, 166-7

5. Infra iii, 127, 163, 167, 175; ‘vi, clam, vel precario’: infra 296

6. Supra 123-4, infra iii, 166, 186

7. Cf. supra 123-4, 157

8. ‘sive’

9. Infra iii, 163

10. Infra iii, 163, 166

11. ‘vel quasi,’ from preceding line

12. Supra 137