The main question presented by this bill of exceptions is, how far evidence of the insanity of the owner of land is competent to defeat a title to an easement in it, claimed by prescription or presumption of a grant, resulting from open, adverse and exclusive enjoyment for more than forty years. A statement of the elements of our law of prescription, and a sketch of its history, will best develop the rules by which this question must be decided.

The doctrine of acquiring property in lands or easements by adverse possession or prescription was derived from the civil law, and recognized in England as early as the thirteenth century. The necessary qualities of such possession or use to confer a title, are clearly stated by Bracton, and have not since been varied. It. must be long, continuous, peaceable, open, by the knowledge and tacit consent, and without the express permission, of the true owner. Bract. 51 b, 52, 221 a. As to the length of time requisite, Bracton says that the claimant of a servitude must show use for a time beyond the memory of man, which may suffice for right, non quia jus deficiat, sed quia *561actio deficit vel probatio. 230. The length of possession necessary to give a right to land, without grant or livery, he says, is not defined by the law, but by the discretion of the justices. Yet that discretion seems to have been guided by the limitation of actions; for he immediately adds that any persons taking possession of lands, though without right, immediately have the freehold against strangers, and after long, continuous and peaceful possession, bein to hold it against all the world — incipiwntpossidere quoad omnes, et habere liberum tenementum ita quad sine brevi vel judicio ejici non possunt; quia sicut tempus est modus inducendce et tollendee obligationis, ita erit modus acquirendce possessionis, longa enim possessio {sicut jus) parit jus possidendi et tollit actionem vero domino petenti quandoque imam, quandoque aliam, qucmdoque . omnem, quia omnes actiones in mundo infra certa témpora habent limitationem. 52,a. When Bracton wrote, writs of right (which had previously been limited by the reign of Henry I.) had by the Statute of Merton, 20 H. III. c. 8, been limited to the beginning of the reign of Henry II., or about ninety-three years, the reason given for which by Bracton is the impossibility of any one testifying, either of his own knowledge, or even from what his father had told him, to anything beyond that time. Bract. 373 a. Other civil actions also had already their established periods of limitation. Bract. 52 a, 102 b, 373 a. 1 Hale’s Hist. Com. Law (5th ed.) 223, 224.

By the St. of Westm. I. c. 39, passed in 3 E. I, writs of right could not be maintained on an older seisin than from the time of Richard I., or about eighty-six years ; and this limitation of the highest writ to recover the freehold was applied by the courts to the time of prescription, as being within the equity of the statute. 2 Inst. 238, 239. Sedman v. Sedman, 30 E. I. 59, 61. 2 Rol. Ab. 269. The simple principle of not undertaking to go back for proof beyond the memory of man having thus assumed the form of a maxim that the reign of Richard I. was the limit cf legal memory, the law of England lost sight of the principle, and kept the maxim, the absurdity of which increased year by year. At last, after the limitation of a writ of right had grown to three centuries and a half, it was reduced by St. 32 H. VIII *562c. 2, to sixty years. The reasons which had controlled the judges in extending the St. of Westm. I. to prescriptions would seem to have applied with increased force to the St. of H. VIII. But for reasons which do not appear this statute was construed with great strictness; Sir Richard Brooke, C. J. C. B. in the reign of Mary, thought that it applied to a title by prescription of anything of which it was necessary to allege seisin, but not to a claim of an easement; and in the time of the English Commonwealth it had ceased in practice to be applied to any prescription whatever. Co. Litt. 115 a. Bro. Ab. Prescription, 6; Limitations, 1, 2. Brooke’s Reading on the Statute of Limitations, div. 2. Com. Dig. Temps, G. 1, 12,13. 2 Rol. Ab. 269. Coolidge v. Learned, 8 Pick. 507, 508.

The founders of the Massachusetts Colony in the seventeenth century did not of course bring with them, as suited to their condition, a law which recognized only those rights by prescription which had begun in the twelfth century. But prescription was early recognized as a source of title in the law of Massachusetts. In Rolle’s Abridgment are collected many cases of prescriptions held bad as against the public good, or against reason, or the law of the land, or common right, several of them decided in the reigns of Elizabeth and James I., not long before the emigration of our ancestors, and others taken from older books. 2 Rol. Ab. 265-267. The Massachusetts colonists, in the Body of Liberties which they established in 1641, went beyond this, and declared, “ No custom or prescription shall ever prevail amongst us in any moral cause ; our meaning is, maintain anything that can be proved to be morally sinful by the word of God; ” and this article was preserved in the subsequent revisions of the laws of the colony. Body of Liberties, art. 65. Anc. Chart. 177. The Body of Liberties, being rather a declaration of rights than a code of laws, did not define the time or elements of prescription; but it did require the consent of the general court to “ any conveyance or alienation of land or other estate whatsoever, made by any woman that is married, any child under age, idiot or distracted person;” and declared that “children, idiots, distracted persons, and all that are strangers or new *563comers to our plantation, shall have such allowances and dispensations in any cause, whether criminal or other, as reasoi, and religion require.” Arts. 14, 52. Neither of these articles appears to have been afterwards reenacted. And there was no saving of disabilities in the act of 1657, by which it was enacted that “ any person who either himself or by his grantors or assigns had before the law of 1652 (which required conveyances of lands to be by deed acknowledged and recorded) possessed and occupied as his or their own proper right in fee simple any houses or lands within this jurisdiction, and should so continue without disturbance, let, suit or denial legally made, by having the claim of any person thereto entered with the recorder of the county,” and prosecuted to effect within five years next after the 20th of May 1657, should with his heirs and assigns forever after enjoy the same. 3 Mass. Col. Rec. 422. 4 Mass. Col. Rec. pt. 1, 288. The general court afterwards held that this act confirmed the title of the possessor, even if he had nothing to show but his possession and the grant of the land was to another person. Ib. pt. 2, 515. Anc. Chart. 175.

Immediately after the Province Charter a similar act was passed, which is printed in Anc. Chart. 216, but which was disallowed by the king in council, because it contained no saving of the rights of the crown, and required only three years’ possession to confirm titles. Another act was accordingly passed in 1697, declaring that quiet, continuous and undisturbed possession for twelve years from the 1st of October 1692 should give an absolute title in fee, with a saving of the rights of the crown ; a proviso that it should “not be understood to bar the title of any infant, feme covert, or person non compos mentis, imprisoned, or in captivity, who shall be allowed the term of seven years next after such imperfection removed to pursue their claim; ” and an allowance to persons beyond sea of ten years from the passage of this act. Prov. St. 9 W. III. c. 9, (ed. 1726) 90. Anc. Chart. 307. These were not mere statutes of limitation of actions, but conferred an absolute title by adverse possession, like the positive prescription or usucapió of the civil law. Beckford v. Wade, 17 Ves. 88. They applied, however, *564only to such possession beginning in 1692, and were probably occasioned by the unsettled state of titles immediately before the grant of the Province Charter.

The English statute of limitations of 32 H. VIII. (as amended by St. 21 Jac. I. c. 16, which did not however affect writs of right) was in force in Massachusetts until after the American Revolution. 6 Dane Ab. 106. Sullivan on Land Titles, 195.

In 1786 a new statute was passed, taken in great part from the English statutes, by the first section of which writs of right were limited to sixty years; by the second section writs of right on disseisin of ancestors and predecessors were limited to fifty years; and by the fourth section writs of formedon and rights of entry upon lands were limited to twenty years, with a proviso authorizing any person entitled to a writ of formedon or to make an entry upon land, and under age, non compos, or under other disability when his right first accrued, to bring such suit or make such entry within ten years after the expiration of said limitation of twenty years, or thirty years in all. St. 1786, c. 13. This proviso being confined to the writs of formedon and rights of entry mentioned in the same section, writs of right were absolutely barred in sixty years. This court held that since this statute the period of prescription must have the same limitation as a writ of right. Coolidge v. Learned, 8 Pick. 504. The St. of 1807, c. 75, reduced the limitation of writs of right to forty years, and of writs of entry upon disseisin of ancestors to thirty years, and did not otherwise modify the St. of 1786. By force of this St. of 1807, the period of prescription was fixed at forty years. Melvin v. Whiting, 10 Pick. 295. Reed v. Northfield, 13 Pick. 97. If those statutes had remained in force, the plaintiff’s title by prescription would have been complete, although the person under whom the defendant claimed had been insane when his right accrued in 1813 and ever since; inasmuch as even an insane person could not have brought a writ of right after forty years, nor a writ of formedon, or of entry, either on his own disseisin or on that of his ancestor or predecessor, after thirty years ; for the additional ten years allowed to persons under disability by the St. of 1786 did not run from the time of the *565removal of the disability, but were simply added to the ordinary limitation of twenty years. Melvin v. Proprietors of Locks & Canals, 16 Pick. 168.

But before thirty years from 1813 had elapsed, the Revised Statutes were passed. It becomes necessary therefore to examine how far they have changed the period of limitation of real actions not already barred when they took effect. By those statutes, all writs of right and formedon, and writs of entry except on the demandant’s own seisin, were abolished after the end of the year 1839; and the clause saving rights of those then under disability to bring one of the actions so abolished need not be considered, inasmuch as it expressly provided that no such action should be maintained after it would have been barred by the statutes of limitation in force when the Revised Statutes took effect. Rev. Sts. c. 101, §§ 51, 52; c. 119, § 11. A person whose title had accrued in 1813, and who had been then and ever since insane, had however, when the Revised Statutes took effect, a right to make an entry at any time before 1843 upon land of which he had been disseised, because the St. of 1786 allowed him thirty years for that purpose, consisting of the general limitation of twenty years, with ten years added by way of allowance for his disability when his title accrued. The Revised Statutes (following the example of the English Sts. of H. VIII. and Jac. I. and the Prov. St. of 9 W. III.) substituted, for those ten years after the expiration of the ordinary limitation of twenty years, ten years after the removal of the disability. Rev. Sts. c. 119, § 5. Commissioners’ note to Rev. Sts. c. 101, § 51. The limitation of writs of entry, not barred when those statutes took effect, was thus varied, and a person then entitled to such a writ, but who had been under disability when his right accrued, might bring it at any time within ten years after the removal of his disability, no matter how long such disability might continue. The provisions of the Revised Statutes above quoted are reenacted in the General Statutes, c. 134, § 48; c. 154, §§ 5,11.

The reasons indicated by Bracton, and which controlled the English courts in the construction of the St. of Westm. I., and ur own in the construction of the Sts. of 1786 and 1807, are *566sufficient to show that since writs of right have been abolished, and writs of entry substituted as the proper form of action to recover the freehold, the limitation of writs of entry should be held the legal limit of prescription of incorporeal rights. And the period of twenty years has been assumed and declared by this court to be the term of prescription in many recent cases Ashley v. Ashley, 4 Gray, 200. Lawrence v. Fairhaven, 5 Gray, 114. Sibley v. Ellis, 11 Gray, 417. Currier v. Gale, 3 Allen, 330. Leonard v. Leonard, 7 Allen, 277.

The commissioners on the Revised Statutes suggested the propriety of fixing by statute the term of prescription for easements at twenty years, and of excluding from the computation the time of insanity or other disability, without confining it to disabilities existing at the beginning of the time. Commissioners’ Rep. on Rev. Sts. c. 119, §§ 14-18. But the legislature did not adopt these suggestions, and merely provided that easements should not be acquired by use or enjoyment for a shorter time than twenty years. Rev. Sts. c. 60, § 27.

In Currier v. Gale, the court held that the adverse possession necessary to give a title by disseisin to land owned by a single woman was not prolonged by her marriage after such possession had begun, because the statute of limitations of real actions saved those disabilities only which existed when the right first accrued, and was not suspended in its operation by a disability subsequently intervening. Mr. Justice Merrick said, “ The same -ule must for the same reason prevail in relation to easements or other rights acquired by prescription, or to titles established and confirmed by open, adverse possession.” 3 Allen, 330 Upon the same ground it has been held in other states that a prescription cannot be interrupted by a disability which does not come into existence until after the time has begun to run. Mebane v. Patrick, 1 Jones, (N. C.) 26, 27. Wallace v. Fletcher,10 Fost. (N. H.) 434. Reimer v. Stuber, 20 Penn. State R. 463. The dicta of Mr. Justice Story in Tyler v. Wilkinson, 4 Mason, 402, on which the plaintiff relies, if fairly susceptible of a wider interpretation than this, are in conflict with the general current of authority, and can hardly be reconciled with the opinion of *567the supreme court of the United States, as delivered by the same learned judge, in Ricard v. Williams, 7 Wheat. 109-111. If a person incapable of granting or consenting is to have no longer time to avoid a title by prescription than he would be allowed by the statute of limitations to bring an action for the land, he should at least be allowed the benefit of all the time which the statute does give.

The provision of the Gen. Sts. c. 90, § 34, for preventing the acquiring of an easement by notice from the owner of land, his agent or guardian, may have full effect, by applying it to persons who become insane after the beginning of the adverse use. And the object of that section was not to create easements, but simply to put restrictions on the mode of acquiring them. Pierre v. Fernald, 26 Maine, 442. Rogers v. Sawin, 10 Gray, 379.

If the time necessary to perfect a title by prescription to an easement in land is measured by any other rule than that derived by analogy from the statutes limiting actions to recover the land itself, it will be quite as difficult to establish such a title by the mere ordinary period of prescription against one who has been insane throughout the entire period.

It is an essential element of the use necessary to give a title by prescription, as laid down by Bracton, that it should be with the acquiescence of the true owner having the power to grant or interrupt the easement — sine consensu expresso, per patientiam veri domini, qui scivit et non prohibuit, sed permisit de consensu tácito. 52 b. c. 23, § 1. Si autem in absentia veri domini utatur quis de patientia et permissione servientis, vel alterius qui jus non habet concedendi vel constituendi servitutem, talis usus non sufficiet, dec valebit ad possessionem acquirendam. Ib. c. 22, § 2. The same principle has been repeatedly recognized by this court. Sargent v. Ballard, 9 Pick. 254. Powell v. Bagg, 8 Gray, 443. Bracton expressly says that an insane person cannot grant his estate, quia donationi consentiré non potest; 12 a; nor lose his right of possession. Cum semel possidere inceperint furiosi et mente capti, nunquam in tali statu desinere possunt possidere durante furore, non magis quam minor infra cetatem. 375 b.

The ground upon which prescription has generally been pu *568l«i this commonwealth has been the presumption of a previous grant or agreement, which has been lost by lapse of time. Rust v. Low, 6 Mass. 97. Gayetty v. Bethume, 14 Mass. 53. Thomas v. Marshfield, 13 Pick. 248. Nichols v. Luce, 24 Pick. 103. Morse v. Copeland, 2 Gray, 305. Jennings v. Tisbury, 5 Gray, 75. Powell v. Bagg, 8 Gray, 443. But a grant cannot be presumed against a person legally incapable of making it. Barker v. Richardson, 4 B. & Ald. 579. Rochdale Canal v. Radcliffe, 18 Q. B. 315. An insane person cannot make a binding grant of his real estate. A sale of the whole or part thereof might indeed have been made in. 1813 by license of the court of common pleas or of this court for payment of his debts or for his support. Sts. 1783, c. 32, § 2 ; c. 38, § 4. But in the absence of evidence of any defect in the records of either of these courts, it is difficult to see how such a license can be presumed. Hathaway v. Clark, 5 Pick. 490. Weatherhead v. Baskerville, 11 How. 360. There is no precedent for a sale of a mere easement out of the real estate of an insane person for the payment of his debts or maintenance. Watkins v. Peck, 13 N. H. 377. And conclusively to presume a lost license to sell such an interest would be to carry the doctrine of presuming whatever is necessary to give validity to an imaginary grant farther than it has ever yet been carried.

The fiction of presuming a grant from twenty years’ possession or use was invented by the English courts in the eighteenth century to avoid the absurdities of their rule of legal memory, and was derived by analogy from the limitation prescribed by the St. of 21 Jac. I. c. 21, for actions of ejectment. It is not founded on a belief that a grant has actually been made in the particular case, but on the general presumption that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing long continued possessions. 2 Saund. 175 note. Hillary v. Waller, 12 Ves. 239. Coolidge v. Learned, 8 Pick. 508. In order to require the jury to presume a grant, the possession or use must have all the qualities of a prescription ; it must be open, adverse, uninterrupted, and with the acquiescence of the owner. Any fact *569which directly affects the probability of such acquiescence must be submitted to the jury to assist them in determining whether such a presumption should or should not be made. Daniel v. North, 11 East, 374. Ricard v. Williams, 7 Wheat. 109, 111. Melvin v. Proprietors of Locks and Canals, 17 Pick. 260, 262. Valentine v. Piper, 22 Pick. 93. Stevens v. Taft, 11 Gray, 33. Smith v. Miller, Ib. 145. Best on Presumptions, 103, 105. Washburn on Easements, 70.

The defendant should therefore have been permitted to prove that Duty Partridge was in fact insane when the aqueduct was laid, and during all the time that it had since been maintained before the appointment of Hancock as his guardian in 1835.

The documentary evidence offered on this issue should also have been admitted. If Partridge was under guardianship as an insane person, it was the duty of the assessors of the town to tax his property to the guardian, and their books were therefore competent evidence that Crocker was this guardian in the years in which he appeared by those books to be so taxed. Stark. Ev. (4th Eng. ed.) 313. Boston v. Weymouth, 4 Cush. 542. Pittsfield v. Barnstead, 40 N. H. 477. And the bond of Crocker as such guardian, dated May 18th 1813 and produced from the files of the probate court, should have been admitted, in connection with the testimony of the register of probate, the record of the subsequent removal of Crocker from his guardianship, and the assessors’ books, as evidence of the time of the beginning of that guardianship. Gray v. Gardner, 3 Mass. 399. Battles v. Holley, 6 Greenl. 145. Although the judge of probate then acting in this county had not been legally appointed, he held a commission from the executive, and was an officer de facto, whose judicial acts were lawful until reversed. Commonwealth v. Fowler, 10 Mass. 301. Fowler v. Bebee, 9 Mass. 231.

Exceptions sustained.