Time whereof the memory of man runneth not to the contrary

Written by: Albert Oosterhoff

Today’s blog is a brief history lesson. It happens to be the 5th of July and that is the anniversary of the accession to the throne of Richard I (Lion Coeur). Why is that significant you ask? It is the date from which legal memory was measured.

The above title is a quotation from the Institutes of the Lawes of England, a commentary by Sir Edward Coke (sometime Lord Chief Justice of England) on the earlier text of Sir Thomas Littleton, Tenures (1481). It is also found in Sir William Blackstone’s Commentaries, vol. i, book i, c. xviii, sec. 472. The Institutes were foundational in the development of English common law. The first edition was published in 1628 and the text was republished several times in subsequent centuries. The quotation appears in Section 170, where Coke explains that when some condition, such as title or possession, has existed since the distant past, it cannot be contested. The quotation thus refers to prescriptive title, but such title consisted of two kinds. The first was by limitation of actions to recover real property, which was created by statute during Richard’s reign, the limitation period being measured from his accession to the throne. The second was a title by prescription, which was recognized at common law and is based on a supposed grant that is now lost. It was also measured from the date of Richard’s accession. Later statutes shortened the limitation period to recover real property: initially to 60 years during the time of Henry VIII, later to 20 years during the reign of William IV, and eventually to 10 years, as in Ontario’s Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 4 (although the period remains 60 years if the action is brought by the Crown, s. 3).

Section 31 retains the common law title by prescription of easements, but modifies it by making the period 20 years (30 years in the case of Crown land, s. 30). In other words, if you can show that you have openly enjoyed a right of way or easement for 20 years, you have acquired a prescriptive right to it and the owner of the property over which the easement runs can no longer bring action to remove you.

20 years is a huge change from “time whereof the memory of man runneth not to contrary”. But it is worthwhile to remember the origin of the modern fixed time for, “Those who cannot remember the past are condemned to repeat it” (George Santayana, The Life of Reason: The Phases of Human Progress, Vol. I: Reason in Common Sense (1905-1906). And therefore, it is good to celebrate this anniversary of the common law every July 5.

Here endeth today’s lesson.