Prescription.

Twenty years' enjoyment presumptive evidence of prescriptive

possession of any thing for a certain number of years is supposed to have a just right, without which he would not have been suffered to continue in the enjoyment of it; for a long possession may be considered as a better title than can commonly be produced, as it supposes an acquiescence in all other claimants, and that acquiescence also supposes some reason for which the claim was forborne. (1 Domat, 461.) The most ancient and distinguished writers on the common law of England have recognized the principle, that a right to any incorporeal hereditament may be acquired by length of time. This mode of acquisition they have denominated prescription, “præscriptio est titulus ex usu et tempore substantiam capiens ab authoritate legis." (Co. Litt. 113 b.) Every prescription supposes a grant once made, and after- Supposes a grant. wards lost, and therefore nothing can be claimed by prescription which in its nature could not have been granted. Provision was made against the insecurity to property for want of a reasonable term of limitation by the stat. 3 Edw. Í. (Westm. 1), c. 39, by protecting possession, when as old as Richard I., against certain legal proceedings. By analogy to that statute, the term of legal memory was fixed at the same period; but as no provision was made to shift the period, in consequence of the continual lapse of time, the reign of Richard I. was left as the point from which legal memory was dated. Hence, in order to constitute a prescription previously to 2 & 3 Will. 4, c. 71, the enjoyment must have existed time out of mind, or, in other words, must have commenced antecedent to the reign of Richard I. (Bract. L. 2, c. 22; 3 Lev. 160; 1 Bl. Comm. 76; 2 Id. 263.) The period called legal memory, in contradistinction to living memory, commenced in 1189. (Co. Litt. 114 b; 2 Inst. 238; 2 Ves. sen. 511.) But in order to make persons on the alert in guarding their rights, and to prevent disputes respecting rights which have been long and peaceably enjoyed, the courts have interpreted an enjoyment of an incorporeal right for the period of forty years, or even twenty years, unless rebutted by other circumstances, presumptive evidence that the right has existed time out of mind, and consequently (unless its origin could be proved) a sufficient foundation for establishing a prescriptive right. (10 East, 476; 2 Brod. & Bing. 403; Cowp. 215; 2 Wils. 23.) And accordingly a regular usage for twenty years, not explained nor contradicted, was that upon which many public and private rights were held, and, where there was nothing to contravene public policy, was sufficient to establish a custom. (Rex v. Joliffe, 2 B. & Cr. 54; 6 East, 214; 2 Wms. Saund. 175, a, d. See The Free Fishers of Whitstable v. Gann, 11 C. B., N. S. 412.) But since the stat. 2 & 3 Will. 4, c. 71, a title to subjects included in the first section of that act cannot be established by an enjoyment for a less period than thirty years, ante, p. 3. To every prescription there were two inseparable incidents-time and usage. (Co. Litt. 113.) Prescription, and time whereof no memory runneth to the contrary, were all one in law. (Litt. s. 170.) And this was understood not only of the memory of any one living, but also of proof by any record or writing, or otherwise, to the contrary, which was considered within memory. (Co. Litt. 115 a.) Thus a lease of ground for fifty-six years to be a passage negatived a prescription, and suffering it to be used for three or four years after the expiration of the lease was held not to amount to a gift to the public. (Rex v. Hudson, Str. 909.) A prescription ought to be certain; therefore a prescription for copyholders to pay to the lord for a fine upon death two years' rent or less is bad. (Com. Dig. Prescription (E. 3); see Att.-Gen. v. Mathias, 4 K. & J. 592.) And a prescription ought to be reasonable; and therefore a man cannot prescribe for an heriot upon the death of every stranger within his manor. (Id. (E.4).) But it may be reasonable, although unusual or inconvenient, as for a way over a churchyard, or through a church. (2 Roll. Abr. 265, 1. 40.) A right by prescription to incorporeal hereditaments is founded on immemorial usage, as where a person shows no other title to what he claims than that he, and those under whom he claims, have immemorially used to enjoy it. Such a prescription differs from custom in this respect, that a custom is properly a local usage, not annexed to the person,-such as the custom that all the copy holders of a manor have common of pasture upon a particular waste; whereas prescription is always annexed to a particular

right.

Prescription must be certain and

reasonable.

Difference be

tween custom and prescription.

Prescription.

Profit à prendre in another's soil must be claimed by prescription.

person. (Co. Litt. 113 b; 4 Rep. 31 b.) This kind of prescription is of two sorts, either a personal right, which has been exercised by a man and his ancestors; or a right attached to the ownership of a particular estate, and only exercisable by those who are seised of the estate. The first is termed a prescription in the person; the second is called a prescription in a que estate, which, in plain English, means a right or privilege claimed by prescription as annexed to and going along with particular lands. (Co. Litt. 13 b, 121 a; 3 Gwill. 1291.) As to prescribing in que estate, see note to 2 & 3 Will. 4, c. 71, s. 5, ante, p. 21.

The same rights may be claimed either by custom or prescription: (but see Blewitt v. Tregonning, 3 Ad. & Ell. 588; Padwick v. Knight, 7 Exch. 854). Custom is local, prescription personal: and the difference lies in the mode of claim suited to the difference of the claimants. Where the claimant has a weak and temporary estate, he cannot claim in his own right, but must have recourse either to the place, and allege a custom there, or if he prescribes in the que estate, it must be under cover of the tenant in fee. The case of copyholders claiming common by custom is a strong instance. So occupiers of houses may set up a custom to cut turves. (Bean v. Bloom, 2 Bl. R. 928; S. C. 3 Wils. 456; Sharp v. Lowther, Cas. temp. Hardwicke, 293; but see Knight v. King, 20 L. T., Ñ. S. 494.) And although inhabitants cannot prescribe, they may allege a custom to have a right of common. (Vin. Abr. Custom (B. 2); Owen, 71.) The inhabitants of a town cannot by that name and description prescribe for an easement in alieno solo; but where such a claim has been allowed, it will be found to have been invariably rested on the ground of custom, and not of prescription. (Co. Litt. 3 a; Day v. Saradge, Hob. 85, 5th edit.; Gateward's case, 6 Rep. 59 b; S. C. as Smith v. Gateward, Cro. Jac. 152; Baker v. Brereman, Cro. Car. 418; Fitch v. Rawling, 2 H. Bl. 393.) As to the claims to rights of common by prescription in the case of freeholders, and by custom in the ease of copyholders, see the judgments in Warrick v. Queen's College, Oxford, L. R., 10 Eq. 105; 6 Ch. 716.

A custom which had existed from time immemorial without interruption within a certain place, and which is certain and reasonable in itself, obtains the force of a law, and is in effect the common law within that place to which it extends, though contrary to the general law of the realm. In the case of a custom, therefore, it is unnecessary to look out for its origin; but, in the case of prescription, which founds itself upon the presumption of a grant that has been lost by process of time, no prescription can have had a legal origin where no grant could have been made to support it. Thus a custom for all fishermen within a certain district to dry their nets upon the land of another might well be a good custom, as it was held in 5 Co. 84; and yet a grant of such an easement to fishermen within the district eo nomine might well be held to be void. (Lockwood v. Wood, 6 Q. B. 64, 65.) See further as to the distinction between custom and prescription proper, Brown's Law of Limitation, pp. 134, 209.

A profit claimed out of another man's soil must be alleged by way of prescription, and not by way of custom, for a custom to take a profit in alieno solo is bad (Blewitt v. Tregonning, 3 Ad. & Ell. 575; see 9 C. B., N. S. 682), but an easement, as a right of way in alieno solo, may be claimed by custom. (Grimstead v. Marlow, 4 T. R. 717.) The reason why a profit à prendre cannot be supported by a custom in an indefinite number of people is, that the subject of the profit à prendre would in that case be liable to be entirely destroyed. (Per Lord Campbell, C. J., Race v. Ward, 4 Ell. & Bl. 705.) It was observed by Lord Denman, C. J., "That it might be collected from the case, Day v. Saradge, Hob. 85, 86, that that which is matter of interest, as the taking a profit from the soil, must for its existence have some person in whom it is; and a flux body, which has no entirety or permanence, cannot take that interest, which by the supposition is immemorial and permanent, because, from its nature, it cannot prescribe for anything. Necessity, however, will control this: the case of common of pasture exemplifies both the rule and the exception; in itself it is an interest; it is the taking a profit from the soil; it is properly matter of prescription. If the copyholders of one manor will claim it in the

wastes of another, they must, because they can, do so by prescribing in the name of their lord, who, in the eye of the law, by reason of his estate, has such a permanence as enables him to prescribe; but, if they claim it in his wastes, they cannot prescribe in their own names and rights by reason of the want of permanence; nor can they in their lord's name, for he cannot claim common in his own land; they are, therefore, from necessity, allowed to claim it by custom. But what is the necessity? that growing out of the original compact, when they received permission to cultivate for their own benefit, and on condition of certain services, certain portion of their lord's land. That compact included the right of common on the lord's waste; and the law will not suffer that right to want a legal character, and so be without the means of its legal enforcement, though at the expense of strict legal reasoning. In the same way, the right now in question must have originated in each instance in a virtual contract: the owner has permitted the tinner to enter and work, when he did not work himself or devote his waste exclusively to other purposes by inclosure, on the condition that the tinner shall render to him a certain portion, fixed by custom, of the produce of the mine. Here, as in the instance of a common, the thing is in its nature to be claimed by prescription only; but they who have it, and ought to have it in justice, cannot prescribe for it from necessity; therefore, that the undoubted right may not be defeated, they shall be allowed to claim it by custom." (Rogers v. Brenton, 10 Q. B. 60, 62.)

In that case the plaintiff claimed under the following custom, which the jury found to exist in fact: any person may enter on the waste land of another in Cornwall, and mark out by four corner boundaries a certain area; a written description of the plot of land so marked with metes and bounds, and the name of the person for whose use the proceeding is taken is recorded in an immemorial local court, called the Stannary Court, and proclaimed at three successive courts held at stated intervals; if no objection is successfully made by any other person, the court awards a writ to the bailiff of the court to deliver possession of the said "bounds or tin work" to the bounder, who thereupon has the exclusive right to search for, dig and take for his own use all tin and tin ore within the described limits, paying to the landowner a certain customary proportion of the ore raised, under the name of toll tin. The right descends to executors, and may be preserved for an indefinite time, either by actually working and paying toll, or by annually renewing the four boundary marks on a day certain. It was held, that the custom to preserve the right by the mere ceremony of an annual renewal, without working, is unreasonable and bad in law, and that the plaintiff (who had ceased to work or pay toll for eighteen years) could not recover in the above action even as against a stranger, and that although the alleged custom involved a claim of profit in alieno solo it would have been a good one, if bona fide working had been found to be obligatory under it. (Rogers v. Brenton, 10 Q. B. 26.)

It was said by Willes, J., " This is a right claimed by a custom which is clearly bad. You cannot claim a profit à prendre out of another man's land, though you may claim an easement. All the cases, if any, in which such a custom is held to be good must be taken to have been overruled." (Constable v. Nicholson, 11 W. R. 698; 14 C. B., N. S. 230. And see the remarks of Byles, J., Att.-Gen. v. Mathias, 4 K. & J. 591.) In an action of trespass for taking stones, sand, &c., from the sea shore, the defendant pleaded a custom in the inhabitants of a township of which he was a member, and also a prescriptive right for the inhabitants and overseers of the highways of that township to take such stones, sand, &c., for the repair of the highways. On demurrer, the court held that such a custom was bad, being a profit à prendre in alieno solo, and that the overseers of the highways and the inhabitants of a township not being a corporation were not capable of taking by grant, and therefore could not claim such right by prescription. (Constable v. Nicholson, 11 W. R. 698; 14 C. B., N. S. 230; and see Pitts v. Kingsbridge Highway Board, 19 W. R. 884.) As to a grant by the crown to a body which could not claim either by prescription or custom, see Willingale v. Maitland, L. R., 3 Eq. 103.

Prescription.

It is an acknowledged principle that, to give validity to a custom,- which What customs

are valid.

Prescription.

has been well described to be an usage, which obtains the force of law, and is in truth the binding law, within a particular district or at a particular place, of the persons and things which it concerns (see Davy's Reports, 31, 32 (a))—it must be certain, or capable of being reduced to a certainty, reasonable in itself (see Tyson v. Smith, 9 Ad. & Ell. 406, 421), commencing from time immemorial, and continued without interruption, subject, however, to the qualifications introduced by the stat. 2 & 3 Will. 4, c. 71 (ante, pp. 1-28). It belongs to the judges of the land to determine whether a custom is reasonable or not. There are several cases in the books upon the question, what customs are reasonable and what are not. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law, for "consuetudo ex certâ causâ rationabili usitata privat communem legem" (Co. Litt. 113 a), as the custom of gavelkind and borough-English, which are directly contrary to the law of descent; or, again, the custom of Kent, which is contrary to the law of escheats. Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth, as the custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another, in favour of fishing and for the benefit of navigation. But, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason; for it could not have had a reasonable commencement: as a custom set up in a manor, on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad; for it is injurious to the multitude, and beneficial only to the lord. (Year B. Trin. 2 H. 4, fol. 24, B. pl. 20.) So a custom that the lord of the manor shall have £3 for every pound breach of any stranger (21 H. 4 (a) ); or that the lord of the manor may detain a distress taken upon his demesnes until fine be made for the damage, at the lord's will. (Litt. s. 212.) A custom is void which sets up a claim to lay coals to an indefinite extent and for an indefinite time on the lands of other copyholders, whereby their lands may be made practically useless, although they would still be liable to pay their rents, and to perform their stipulated services to the lord. (Broadbent v. Wilks, Willes, 360; 1 Wils. 63, recognized in H. L., Marquis of Salisbury v. Gladstone, 9 H. L. C. 692.) In all these, and many other instances of similar customs which are to be found in the books, the customs themselves are held to be void, on the ground of their having no reasonable commencement, but as being founded in wrong and usurpation, and not on the voluntary consent of the people to whom they relate. (Tyson v. Smith, 6 Ad. & Ell. 421; 1 P. & Dav. 307; 6 Ad. & Ell. 746.)

In trespass for breaking the plaintiff's close and digging and carrying away clay, the defendant justified as owner of a brick kiln, and pleaded that all occupiers thereof for thirty years had enjoyed, as of right, &c., a right to dig, take, and carry from the close so much clay as was at any time required by him and them for making bricks at the brick kiln, in every year and at all times of the year: it was held unreasonable and bad, as amounting to an indefinite claim to take all the clay out of the close in question. (Clayton v. Corby, 5 Q. B. 415; see 2 Q. B. 813.)

Customs derogatory from the general right of property must be construed strictly, and, above all things, they must be reasonable. (Rogers v. Brenton, 10 Q. B. 57.) It is a general rule that customs are not to be enlarged beyond the usage, because it is the usage and practice that make the law in such cases, and not the reason of the thing. (11 Mod. 160; Fitzgib. 243.) An usage for the inhabitants to have common to their houses was held not to extend to a new house. (Owen, 4.) A custom would be bad which required a township, part of a parish, to pay a proportion of a church rate without requiring the inhabitants of the township to be summoned to consider the rate. (Reg. v. Dalby, 3 Q. B. 602.) A custom for the inhabitants of a township to go on a close and take water from a spring was held good. (Race v. Ward, 4 Ell. & Bl. 702; 3 W. R. 240.) The custom to erect booths in the highway during a fair has been held legal. Such custom was in substance for every victualler to enter upon any parts of a certain

close within a borough within which there was a fair immemorially held for three weeks, but leaving sufficient part of such close open for use as a public highway, and for the more conveniently carrying on their trade during the fair, to erect booths and keep goods there, until the fair was ended, paying to the owner of the soil a reasonable compensation for the use thereof. (Elwood v. Bullock, 6 Q. B. 383.) But a custom to erect stalls at statute sessions for hiring servants was held to be bad, as it could not have had a legal origin. (Simpson v. Wells, L. R., 7 Q. B. 214.) A custom for all the inhabitants of a vill to dance on a particular close at all times of the year at their free will for their recreation has been held good. (Abbot v. Weekly, 1 Lev. 176; cited 4 El. & Bl. 713. See Warrick v. Queen's College, Oxford, L. R., 10 Eq. 105.) A custom is good for the freemen of a town to hold horse races over certain land every Ascension day. (Mounsey v. Ismay, 1 H. & C. 729; 11 W. R. 270.) Such a custom cannot be claimed on behalf of all the Queen's subjects, but only on behalf of a limited class of people. (Earl of Coventry v. Willes, 12 W. R. 127.) A custom for the inhabitants of a parish to exercise and train horses at all reasonable times of the year in a place beyond the limits of the parish is bad. (Sowerby v. Coleman, L. R., 2 Ex. 96.)

Prescription.

must have been as of right.

Equally in the case of custom as in that of prescription long enjoyments Enjoyment in in order to establish a right must have been as of right, and therefore case of custom neither by violence nor by stealth nor by leave asked from time to time. Therefore where the owners of an oyster fishery had since the reign of Elizabeth held courts and granted for a reasonable fee licences to fish to all persons inhabiting certain parishes who had been apprenticed for seven years to a duly licensed fisherman, it was held that, as every act of fishing had been by licence, there had been no enjoyment as of right so as to give rise to a custom. (Mills v. Mayor of Colchester, L. R., 2 C. P. 476; 3 C. P. 575.) A particular custom as to the appointment of a churchwarden was held valid. (Bremner v. Hull, 14 W. R. 964.) As to a claim by custom to visitation fees, see Shephard v. Payne (16 C. B., N. S. 132); and to marriage fees, Bryant v. Foot (L. R., 2 Q. B. 161; 3 Q. B. 497), where it was said by Kelly, C. B., "The true principle of law applicable to this question is, that where a fee has been received for a great length of time, the right to which could have had a legal origin, it may and ought to be assumed that it was received as of right during the whole period of legal memory, that is, from the reign of Richard I. to the present time, unless the contrary is proved." (L. R., 3 Q. B. 505.) The requisites of a valid custom are stated in Broom's Commentaries, 12-19, 4th ed.

A declaration stated that lands were in the occupation of a tenant of the plaintiff, the reversion belonging to him, and that the defendant wrongfully dug out of the lands large quantities of stone, sand and soil, and carried away the same, and made large holes, excavations and cuttings in and through parts of the lands, and erected mounds and banks of earth and rubbish in and upon other parts of the lands, so as thereby permanently to alter, damage, injure and spoil the surface of the lands. The defendant pleaded that R. was seised in fee of all the mines and quarries of stone under the earth or upon the earth within certain parts of a lordship, and that he and all those whose estate he had and has of and in the mines and quarries within the lordship, from time whereof the memory of man is not to the contrary, have been used and accustomed of right, as often as it might be necessary, for the purpose of effectually getting, winning or working the mines or quarries within the parts of the lordship, to enter into and upon any lands within the said parts, within or under which the mines or quarries were situate, such lands being, or having been, part of the waste of the lordship, and to dig, excavate and cut into and through the same lands unto the stone of the mines and quarries, and out of the holes and excavations so made to raise, dig and get the stones of the mines and quarries, and carry away the same, doing no more damage than necessary. The plea then stated that R. demised a quarry of stone, situate within and under the lands of the plaintiff, being parcel of the mines and quarries of stone within the lordship, to the defendant from year to year; and the plea justified the acts complained of in the exercise of the right.

S.

D

Customs as to mines and

quarries.