
    George Coolidge versus Thomas Learned.
    The time of legal memory or prescription in this Commonwealth, does not extend further back than sixty years.
    Whether it extends further back than forty years, quczre.
    
    In trespass quaJcl.fr,, a plea that the locus in quo has been from time immemorial a public landing-place, in which every citizen has had from time immemorial a right of entering, was held good.
    In trespass qua. cl.fr. where the locus in quo had for a long time been claimed b) the inhabitants of the town where it was situated, as a town landing-place, but not for their exclusive use, evidence of a long continued use of it by the public at large without any objection on the part of the town, was held sufficient to support a verdict finding it to be a public landing-place.
    Trespass for breaking and entering the plaintiff’s close in Watertown, on the 2d of June, 1825.
    The defendant pleaded 1. the general issue.
    2. That the locus in quo now is and at the time &c. was, and from time whereof the memory of man is not to the contrary hath been, an open, common and public landing-place, in and adjoining Charles river, the same being there a navigable river, in which landing-place every citizen of this Commonwealth now has, and at the time &c. had, and from the time whereof the memory of man is not to the contrary, hath had the liberty, right and privilege of entering by himself and with his teams, and of putting and placing thereon boards, timber, &c. borne on and landed from the river, or to put the same on board boats &c. from the landing, at all times and seasons, at his pleasure ; wherefore the defendant, being a citizen, &c.
    3. That the locus in quo is such a landing-place for the inhabitants of Watertown.
    Replications were filed, traversing the facts stated in the pleas, and issues to the country were joined thereon.
    The cause was tried before Morton J. He instructed the jury, that if they found that the plaintiff was in possession at the time of the" acts complained of, they should find for the plaintiff; unless they should also find, that the locus in quo had been used as an open, public landing-place for sixty years, or beyond the memory of man, without having been interrupted ; in that case they should find the first and second issues for the defendant.
    And as to the first issue, the jury found “ the defendant not guilty, inasmuch as the prescriptive right to the landing had never been lost.” And as to the second, they found that the locus in quo is a common landing-place for all the citizens of the Commonwealth, in manner and form as set forth in the second plea. The verdict on the other issue was taken for the plaintiff by consent.
    The plaintiff moved for a new trial because the verdict was against the law and the evidence, inasmuch as there was sufficient evidence of title and possession in the plaintiff and those under whom he claimed, and of the trespass alleged, and no sufficient evidence of an uninterrupted and immemorial use of the loops in quo as a public landing-place, or of a prescriptive right in the inhabitants of the Commonwealth to a landing-place there, as alleged in the s'econd pica ; and because the verdict was wholly insufficient to maintain the issues on the defendant’s part.
    
      Oct. 15 th, 1828.
    And if a new trial should not be granted, the plaintiff moved that judgment might be rendered for him, notwithstanding the verdict on the first and second issues.
    
      Rand and Bemis, for the plaintiff,
    contended that a use ol the locus in quo for sixty years as a public landing-place, would not support the second plea.
    The natural import of the words time whereof, &c. is, time beyond all written evidence and living memory ; and it is the settled construction of the law, that time beyond the memory of man reaches back to the reign of Richard 1. 3 Stark. Ev. 1204. That date was assumed by the courts, because by St. Westm. 1, a writ of right could not be brought upon a seisin beyond that time ; 2 Inst. 238; but, in fact, the limitation of a writ of right had no connexion with prescription ; 34 H. 6, 36; Fitzh. Abr. Prescription, 12 ; Lit. § 170; and when the St. 32 Hen. 8, limited writs of right to sixty years, no corresponding alteration took place in regard to the time of legal memory. If prescription depended on the limitation to a writ of right, the time of memory in this Commonwealth should be reduced to forty years. Applications were made to parliament in the reign of Edward 3, to reckon the time of memory from the first year of Edward 1, but they were rejected. 2 Rol. Abr. 269. The law was well settled at the time when our ancestors emigrated from England ; 2 Rol. Abr. 269; Co. Lit 113 a; and it remained unaltered at the commencement of the revolutionary war, and at the time when our constitution was adopted ; and our statute of limitations was copied from the statute of Hen. 8. Kingston upon Hull v. Horner, Cowp. 102; The King v. Pugh, 1 Doug. 188.
    Our constitution and statutes do not fix the time of memory, and as the common law on this subject is not inconsistent with our institutions, it must be respected as a part of our law. There can then be no prescription in this country, as the settlement of it was within time of memory ; and so it has been held in some of the United States. 2 Tucker’s edit, of Bl. Com. 31, 36, 266; Ackerman v. Shelp, 3 Halsted’s (New Jersey) Rep. 125; Arnold v. Mundy, 1 Halsted, 67; Carson v. Blazer, 2 Binney, 490; Young v. Collins, 2 Brown’s (Penn.) Rep. 293; Chambers v. Furry, 1 Yeates, 167; Devereucc v. Elkins, 5 Dane’s Abr. 568, § 13; 3 Dane’s Abr. 254, § 20, 21. If we have not adopted the English law of prescription, and have no statute upon the subject, this Court has no authority to make a law of prescription.
    A plea of prescription is not to bo confounded with a plea of a lost grant. It is true that sometimes the same evidence will support either ; but the mode of pleading and the rules of evidence in the two cases are very different. Co. Lit. 113 6; Livett v. Wilson, 3 Bingh. 115; Fenwick v. Reed, 5 Barn. & Ald. 232. Upon a plea of a lost grant, the jury are to find whether there was a grant; but in the other case, although a prescriptive right is founded upon a supposed grant, they are only to determine whether there has been a usage. Here a prescriptive right is pleaded, and it is for the Court to say, whether there could have been a deed ; as otherwise, there can be no prescription. And it is clear that there could have been no deed, for a deed to all the citizens of the Commonwealth would be void.
    The citizens of the Commonwealth cannot prescribe. Co. Lit. 110 b; Day v. Savadge, Hob. 86; North v. Coe, Vaugh. 254; Muston v. Yateman, 10 Mod. 301; Holbedg v. Warner, Palm. 331; Wakefield v. Costard, And. 151, 152; Fitch v. Rawling, 2 H. Bl. 393, and cases there cited.
    Nor can thp plea be considered as setting out a custom. That which is common to all the citizens, cannot be the sub ject of a custom ; it is a right by the common law. Fitch v. Rawling, 2 H. Bl. 393.
    The plea alleges a right to deposit timber on the locus in quo and for an indefinite time. It is a claim of profits in another's soil, and should have been prescribed for in a que estate.
    
    
      Oct. term 1829.
    
      Hoar and T. Bigelow, for the defendant,
    cited Odirne v Wade, 5 Pick. 421; Story’s Pl. 5S3, 584, 585.
   Wilde J.

delivered the opinion of the Court. The plaintiff’s counsel except to the direction of the judge, and contend that no usage commencing within the time of legal memory is sufficient to establish a right by prescription ; and that it has been long settled, that the time of legal memoiy extends back to the commencement of the reign of Richard 1, so that in this country no prescriptive right founded on immemorial usage can be maintained by the principles of the com mon law.

That the time of legal memory, according to the law of England, extends back to the remote period contended for by the plaintiff’s counsel, cannot be denied ; but for what reason, or for what purpose, such a limitation should have been continued down to the present day, we are unable to ascertain. Cruise says, “ that it seems somewhat extraordinary, that the date of legal prescription should continue to be reckoned from so distant a period.” And to us it seems, that for all practical purposes it might as well be reckoned from the time of the creation. The limitation in question (if it can now be called a limitation) was first established soon after the St. Westm. (13 Ed. i, c. 39), and was founded on the equitable construction of that statute, which provided that no writ of right should be maintained except on a seisin from the time of Richard 1.

It was held that an undisturbed enjoyment of an easement for a period of time sufficient to give a title to land by possession, was sufficient also to give a title to the easement. 2 Roll. Abr. 269; 2 Inst. 238; Rex v. Hudson, 2 Str. 909; 3 Stark, on Ev. 1205. Upon this principle the time of legal memory was first limited, and upon the same principle, when the limitation of a writ of right was reduced by the statute of 32 Hen. 8, c. 2, to sixty years, a similar reduction should have been made in the limitation of the time of legal memory. This was required, not only by. public policy, to quiet long continued possessions, but by a regard to consistency, as it would have been only following up the principle upon which the first limitation was founded.

And of this opinion was Rolle, (2 Roll. Abr. 269,) though he admits that at his time the practice was otherwise. Why the opinion of this eminent judge, founded as it was'on reasoning so solid and satisfactory, was not adopted by the courts, does not appear. But it does appear that the "principle on which his opinion was founded, was respected, and carried into operation in another form. For although the courts continued to adhere to the limitation before adopted, yet the long enjoyment of an easement was held to be a sufficient reason, not only to authorize, but to require the jury to presume a grant. And it has long been settled, that the undisturbed enjoyment of an" incorporeal right affecting the lands of another for twenty years, the possession being adverse and unrebutted, imposes on the jury the duty to presume a grant, and in all such cases juries are so instructed by the court. Not, however, because either the court or jury believe the presumed grant to have been actually made, but because public policy and con venience require "hat long continued possession should not be disturbed.

The period of twenty years was adopted in analogy to the statute of limitations, by which an adverse possession of twenty years was a bar to an action of ejectment, and gave a possessory title to the land. Thus it appears, that although prescriptive rights commencing after the reign of Richard 1. are not sustained in England, yet a possession of twrenty years only is sufficient to warrant the presumption of a grant; which is the foundation of the doctrine of prescription. In the one case the grant is presumed by the court, or rather is presumed by the law, and in the other case it is presumed by the jury under the direction of the court. The presumption in the latter case is in theory, it is true, a presumption of fact, but in practice and for all practical purposes, it is a legal presumption, as it depends on pure legal rules ; and as Starkie remarks, “it seems to be very difficult to say, why such presumptions should not at once have been established as mere presumptions of law, to be applied to the facts by the courts, without the aid of a jury. That course vvould certainly have been mo e simple, and any objecLon, as to the want of authority, would apply with equal if not superior force to the establishing such presumptions indirectly through the medium of a jury.”

But however this may be, it is clear that when the law became settled as it now is, and a party was allowed to plead a non-existing grant, and the jury were bound to presume it, on proof of twenty years’ possession, he would hardly be induced to set up a prescriptive right ; and the limitation of legal memory thus became in most cases of very little importance. And this is probably the reason why the period of legal memory, as it was limited soon after the statute of Westm. 1, has been suffered to go on increasing to the present time, although it has long since ceased to be of any practical utility, and is utterly inconsistent with the principle on which the limitation wot originally founded.

The question then is, whether the courts of this country were not at liberty to adopt the English law of prescription, with a modification of the unreasonable rule adhered to by the English courts in regard to the limitation of the time of legal memory. Certainly the law without the rule of limitation might have been adopted, and the courts here had competent authority to establish a new rule of limitation suited to the situation of the country. They had the same authority in this respect, that the courts in England had to establish the English rule of limitation. This rule could not be adopted here without a modification, and it was modified accordingly ; and in conformity with the principle of the English rule of limitation. This cannot be ascertained with certainty, but it is evident that the English rule could not have been adopted, and it is to be presumed that the period of sixty years was fixed upon as the time of limitation, in analogy to the statute of 32 Hen. 8, c. 2, and in conformity with the opinion of Rolle. At what period of our history the law of prescription was first introduced into practice in the courts of Massachusetts, cannot now be determined, but certainly it was before the time of legal memory, as we understand the limitation of it; and innumerable pleas of prescriptive rights are to be found in the records of our courts. So the cases reported by Dane show that the doctrine of prescription has been repeatedly recognized and sanctioned by this Court. 3 Dane, 253, c. 79, art. 3, § 19. The only question has been, whether our time of legal memory was limited to sixty years, or whether it was to extend to a period beyond which no memory or record goes as to the right in question. The general opinion, we think, has been in favor of the limitation of sixty years ; and we think it decidedly the better opinion. This seems to us a reasonable limitation, and as before remarked, it is founded on the principle of the English rule of limitation, which was adopted in reference to the limitation of the writ of right by the statute of Westm. 1. Whether since the writ of right has been limited to forty years, a similar limitation of the time of legal memory ought to be adopted, is a question not raised in this case, and upon which we give no opinion.

The case of Ackerman v. Shelp, 3 Halst. 125, has been cited, to show that the doctrine of prescription has not been adopted in New Jersey ; but this is no reason why it should be rejected in Massachusetts, where it has long since been adopted, and is now familiar in practice ; adopted, too, not only by the authority of our courts, but with the implied sanction of the legislature. As early as the year 1641, it was ordered and decreed by the colonial legislature, that no custom or prescription should prevail in any moral case (that is, as it was declared) “ to maintain any thing that could be proved to be morally sinful by the word of God.” Ancient Charters, &c. 177. This provision, it is true, manifests great ignorance of the principles of the common law, and for the purpose for which it was framed was useless and inoperative. It serves nevertheless to show, that when afterwards the doctrine of prescrip tian was introduced into practice, it was not done without the countenance of the legislature ; although certainly no legislative authority was necessary to give it validity.

But it has been argued, that the right set up by the defendant cannot be maintained, by the principles of the common law, as a right by prescription, or as a custom. The cases, however, cited in support of this argument, refer either to privale rights or local customs. The right in question is a public prescriptive right, and as such it is well pleaded. It is similar to the easement which the public has in highways, and may well be prescribed for. In pleading such a public right to an easement, it is sufficient to aver, that the locus in quo is a public highway or public landing-place, &c. without showing how

oecame so; for it cannot be presumed that every party has knowledge of the origin of a public right. Aspindall v. Brown, 3 T. R. 265; 3 Chit. Crim Law, 570; 3 Dane, 248; Commonwealth v. Manning, S. J. Court, Essex County, 1795, in 3 Dane, 19, c. 71, art. 5, § 8, 9, 10; Gate-ward’s case, 6 Co. 60, 61.

Again, it has been argued, that the verdict is not supported by the evidence, as it does not appear that the place in question was a public landing-place for the use of the whole community; and as it has been always claimed and used by the inhabitants of Watertown as a town landing-place. But if this position could be maintained, it would not affect the merits of the case ; for it would only show that the third issue should have been found for the defendant instead of the second ; so that the plaintiff could not eventually prevail, if a new trial were granted. We think however the evidence is sufficient to maintain the second plea, and that the verdict is right. It is true that the inhabitants of Watertown have long claimed the locus as a town landing-place ; but they have not claimed it for their own exclusive benefit, but it has been used by the public at large, and by other citizens besides the inhabitants of Watertown. This public use and enjoyment of the landing-place, long continued and without any interruption or objection on the part of the town of Watertown, is sufficient, we think, to maintain the second plea, and to justify the finding by the jury.

Judgment according to verdict. 
      
       See Melvin v. Whiting. 10 Pick. 295; Kent v. Waite, 10 Pick. 138, Reed v. Northfield, 13 Pick. 94. For the laws of other States on this head, see the cases cited in 2 Hilliard’s Abr. 178 et seq. See also Revised Stat. c. 119.
     
      
       See Peequaiokett v. Mashes, 7 N. Hamp. R. 230
     