A prescriptive right is a right on another’s property, acquired by continuous use and without permission of the owner, for a legally defined period. To acquire an easement by prescription, it is essential that the usage must be uninterrupted for a number of years, open and adverse, and also it must be with the acquiescence of the owner of the servient tenement.[i] The right to lateral support of buildings by adjoining land cannot be acquired by prescription.
In, Mitchell v. Rome[ii], landowners filed an action to recover damages, claiming that the city’s work in grading and cutting down a street below the foundation of the wall of their house caused the wall to fall and thereby threw down the building’s ell. The landowners’ argued that, they had the right to the lateral support of the adjacent soil by prescription and that city authorities had no right to dig it away for any public purpose. The court rejected the argument and ordered that the right to lateral support of buildings cannot be acquired by prescription.
In, Kennedy v. Rutland Aerie Fraternal Order of Eagles,[iii] the court held that, a person claiming prescriptive right cannot show s/he has violated the rights of other party.
[i] Tunstall v. Christian, 80 Va. 1 (Va. 1885)
[ii] 49 Ga. 19 (Ga. 1873)
[iii] 111 Vt. 490 (Vt. 1941)