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The liberty of fowling has been decided to be a profit à prendre. 2 & 3 Will. 4, (Davies' case, 3 Mod. 246.) The liberty to hunt is one species of aucu- c. 71, s. 1. pium, and the taking of birds by hawks seems to follow the same rule.
Profits à prendre. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit; it is common of fishing. (Anon., Hardr. 407.). The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licensee. But in the case of a grant by deed — “of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish and fowl”—to persons, "their heirs and assigns,” where it is apparent that not merely the particular individual damed, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest, or profit à prendre, was intended to be granted. (Per Parke, B., Wickham v. Harker, 7 Mees. & W. 78, 79.) The property in animals feræ naturæ, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a licence of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a regrant of the right by the alienee of the fee simple to the alienor. (Ewart v. Graham, 7 H. L. 344, 345, per Lord Campbell.) A right to cut down and carry away trees growing in a close (Bailey v. Stevens, 12 C. B., N. S. 91) and a right to take stones and sand from the seashore (Constable v. Nicholson, 14 C. B., N. S. 230) have been held to be profits à prendre.
It is an elementary rule of law that a profit à prendre in another's soil Profit à prendre cannot be claimed by custom, for this among other reasons that a man's in anothers soil soil might thus be subject to the most grievous burdens in favour of suc- cannot be claimed
by custom. cessive multitudes of persons like the inhabitants of a parish or other district who could not release the right. The claim of free miners to subvert the soil and carry away the substratum of stone without stint or limit of any kind cannot be supported either on the ground of custom, prescription or lost grant. A claim which is vicious and bad in itself cannot be substantiated by an user however long. (Per Byles, J., Att.-Gen. v. Matthias, 4 Kay & J. 591; Constable v. Nicholson, 14 C. B., N. S. 230; Johnson v. Barnes, 27 L. T., N. S. 152.) To a declaration for breaking and entering the plaintiff's close and taking his fish, a custom pleaded for all the inhabitants of a parish to angle and catch fish in the locus in quo was held to be bad, as this was a profit à prendre, and might lead to the destruction of the subject-matter to which the alleged custom applied., (Bland v. Lipscombe, 4 EIL
. & Bl. 713, n. (c)) A right, claimed by the inhabitants of a township, to enter upon the land of a private person and take water from a well therein for domestic purposes, is an easement and not a profit à prendre, and may therefore properly be claimed by custom. (Race v. Ward, 4 Ell. & Bl. 702; 24 Law J., Q. B. 153; 1 Jur., N. S. 704.) The court held an alleged custom to be bad for all the inhabitants occupying lands in a district to enter a close and take therefrom reasonable quantities of sand, which had drifted thereupon, for the purpose of manuring their lands. The reason was, that the drifted sand had become part of the soil, so that the claim was to take a profit in alieno solo. (Blevitt v. Tregonning, 3 Ad. & Ell. 554, cited in Race v. Ward, 4 Ell. & Bl. 712.)
Before the passing of this act, a prescriptive claim was a claim of imme- Proof of enjoymorial right; the evidence in support of it was such as a party might be able ment under the to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now the burden of establishing an immemorial right is withdrawn, and the proof is limited to thirty years. But the party prescribing must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period. (See 8 Ad. & Ell. 167.) The plaintiff prescribed under this statute, first, for a right of pasture
2 & 3 Will. 4, thirty years next before the commencement of the action; and, secondly, c. 71, s. 1. for a right of simply turning on cattle for twenty years. No evidence was
given of acts of depastaring at a period commencing more than thirty years before the commencement of the suit; but that more than twenty-eight years before the suit (in 1809) a rail was erected, so as to prevent the enjoyment of pasture, and that afterwards, the rail having been removed, the plaintiff depastured for twenty-eight years; it was held, that the defendant was not bound to prove that the rail was erected adversely to the plaintiff's right, but that the onus lay on the plaintiff to prove affirmatively his actual enjoyment of pasture for thirty years, and that no presumption could be admitted in his favour on proof of enjoyment for a less period. (Bailey v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case, ib. p. 1; 3 Nev. & Per. 257, note on case; 2 P. & Dav. 1; 2 Jurist, 872.) It was also held, that proof of his enjoyment of pasture for twenty-eight years did not include proof of the right of turning on for twenty years, the latter right being an easement only, a right of a quite different nature, and of which no evidence was given. (16.)
The plaintiff claimed a right of common by prescription in respect of a que estate in land, and also by thirty and sixty years' enjoyment by the occupicr of the land. The defendant offered evidence that a tenant then deceased, while tenant of the land for years, had declared that he had no such right in respect of the land: it was held, that the declaration was not adinissible, inasmuch as it was in derogation of the title of the reversioner. (Papendick v. Bridgwater, 5 El. & Bl. 166; 1 Jur., N. S. 657; 24 L. J., Q. B. 289.) Lord Campbell, C. J., observed," it would be very mischievous if it were in the power of a tenant to destroy a profit à prendre belonging to the land which he occupies, or to impose a servitude upon it. There is no difference in this respect between destroying an easement and creating one. If the tenant might say that the land erfjoyed no right of way, he might also say that it was liable to an easement for taking water, profit à prendre by turbary or other common. It would come to this: that by the tenant's acknowledgment of a servitude, like that in Scholes v. Chadwick, 2 Moo. & R. 507, or for cutting turves or taking away sand, the tenant might create a servitude against the reversioner. That would be very inconvenient, and it is upon the view of the balance of general convenience that the English laws of evidence are founded. In Daniel v. North, 11 East, 372, it was decided that the acquiescence of the tenant cannot prejudice the landlord, and if so, I think, à fortiori, that his declaration cannot.” (Papendick v. Bridgwater, 5 Ell. & Bl. 177; see Scholes v. Chadwick, 2 Moo. & R. 507; Reg. v. Bliss, 7 Ad. & E. 550.)
The turning of cattle upon alluvium by the proprietor of land not separated from it by any boundary, although without interruption, was held not to be an assertion of right so acquiesced in as to raise a presumption of title. Lord Chelmsford, L. C., observed,“ the effect of acts of ownership must depend partly upon the nature of the property upon which they are exercised. If cattle be turned upon inclosed pasture ground, and be placed there to feed from time to time, it is strong evidence that it is done under an assertion of right; but where the property is of such a nature that it cannot be easily protected from intrusion, and if it could it would not be worth the trouble of preventing it, there mere user is not sufficient to establish a right, but it must be founded upon some proof of knowledge and acquiescence by the party interested in resisting it, or by perseverance in the assertion and exercise of the right claimed in the face of opposition.” (Att.-Gen. v. Chambers, 4 De G. & J.55; see pp. 65, 66. See In re Hainault Forest Act,
1858, 9 C. B., N. S. 648.) Nature of requi
This section of the act does not prevent a claim to a right of common, site enjoyment. &c. from being defeated after thirty years' enjoyment, by showing that
such right was first enjoyed at a time when it could not have originated legally. A claim to a right of common over a Crown forest, in respect of a certain tenement being vested on thirty years' uninterrupted enjoyment under this section may be defeated by showing that the tenement has been inclosed from the waste of a manor only forty years, and that the grant of any right over the forest was made absolutely void by a statute passed previously to the inclosure. It was questioned whether this act has any 2 & 3 Will. 4, application to the case in which the establishment of a right by means of c. 71, s. 1. this statute would be a violation of the express terms of statutes prohibiting the granting of such a right. (Mill v. New Forest Commissioners, 18 C. B. 60; 2 Jur., N. S. 520; 25 L. J., C. P. 212.)
In replevin for taking the plaintiff's cattle, to an avowry damage feasant the plaintiff pleaded in bar under this statute an user for thirty years as of right, and also for sixty years as of right of common of pasture over the locus in quo. At the trial the fact of user by the plaintiff and by other occupiers of his farm was proved ; but it appeared that S., from whom the plaintiff and the defendant derived their title, was for more than sixty years before and until within thirty years seised in fee of the plaintiff's farm, and during the same period had an estate for life in the land over which the right of common was claimed, but never had actual possession of the dominant tenement, except by the tenant. More than thirty years before action, he joined with remainder-man in making a conveyance of the servient tenement for making a tenant to the precipe for the purpose of suffering a recovery, in order to raise money on mortgage; but no recovery was suffered, and S. continued possessed until twenty-eight years before the action, when the property was sold, and all community of title had ceased : it was held, that, although there was no unity of seisin to extinguish an easement or to prevent its existence, the facts precluded an enjoyment as of right within the meaning of this act. The title to the tenements was such that there could not, in point of law, have been an enjoyment of the right of common for the period of sixty years as of right, for S. being owner in fee of the farm, and also tenant for life and occupier of the common, the rights of the tenants over the common were derived from him, and as he could not have an enjoyment as of right against himself within the meaning of the statute, so neither could bis tenants. (Warburton v. Parke, 2 H. & N. 64; 26 L. J., Exch. 298.)
Where there had been actual and uninterrupted enjoyment of a right to cut turf for sixty years, but the enjoyment appeared to be referable during the whole period to an agreement in writing made by a tenant for life of the servient tenement, and acquiesced in and acted on by the successive owners of that tenement; it was held that although the tenant for life who made the agreement and the next succeeding tenant in tail had both died before the sixty years began to run, no prescriptive right had been gained under this section. (Lowry v. Crothers, I. R., 5 C. L. 98.)
As to the natnre of the enjoyment requisite to support a claim under the act, see further the note to sect. 2, post.
The 1st section requires in the case of a right of common or a profit à Period of enjoyprendre, enjoyment “without interruption for the full period of thirty ment. years;" the most undoubted exercise of enjoyment for twenty-nine years and three-quarters will not be sufficient. (Bailey v. Appleyard, 8 Ad. & EN. 164. See Flight v. Thomas, Ad. & El. 688, post.) Taking the first, fourth and fifth sections together, it has been decided that the period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question, and that an allegation of an enjoyment for thirty years next before the times when the trespasses to which the plea relates were committed is insufficient. (Richards v. Fry, 3 Nev. & P. 67; 7 Ad. & Ell. 698; Wright v. Williams, 1 Mees. & W. 77.) See further the note to sect. 4, post.
If the statute be relied on it ought to be pleaded. (Welcome v. Upton, Pleading. 6 M. & W. 401.) Plea of enjoyment of a right of common for thirty Fears before the commencement of the suit was held sufficient, without saying thirty years next before. (Jones v. Price, 3 Bing. N. C. 62.)
proper mode of pleading a profit to be taken out of land is the enjoyment of the right for the periods mentioned in the first section. (Welcome v. Upton, 5 Mees. & W. 398; 7 Dowl. P. C. 475.)
2 4:3 Will. 4,
II. WAYS, EASEMENTS, AND WATERCOURSES. c. 71, 8. 2.
2. No claim which may be lawfully made at the common In claims of right law (f ), by custom, prescription, or grant, to any way or other
easement, or to any watercourse, or the use of any water, to periods to be twenty years and
be enjoyed or derived upon, over, or from any land or water of forty years. our said lord the King, his heirs or successors, or being parcel
of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement ex
pressly given or made for that purpose by deed or writing (9). Modes of claiming (f) As to the modes of claiming an easement by prescription at comeasements. mon law, and by non-existing grant, which were used before the passing of
this act, see note (3) at the end of the act. The act has provided an additional mode of claiming easements, but has not abolished the former modes. As to the law of ways, see note (4); and as to watercourses, see note (5). As to the right to a pew, which is an easement, see note (6) at the end of the act.
(9) This section relates to claims to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon,
over, or from any land or water. Defnition and
Easement is the general term for several species of liberties which one nature of ease- man may have in the soil of another without obtaining any interest in the ments.
land itself. (Cro. Car. 419.) Rights of accommodation in another's land, as distinguished from those which are directly profitable, are properly called easements. An easement (from the French word aise, i. e. commoditas) is defined to be a privilege that one neighbour hath of another by writing or prescription without profit, as a way, or a sink through his land, or sach like. (Kitch. 103; Cow. Law Dict. Terms of the Law, tit. “Easement;" 6 B. & C. 229. See the remarks of Martin, B., in Mounsey v. Ismay, 3 H. & C. 497 ; 13 W. R. 521.) “A servitade is a charge imposed upon one heritage for the use and advantage of a heritage belonging to another proprietor." (Code Civil, Art. 637.) Easements are incorporeal rights (Hewlins v. Shippam, 5 B. & C. 221; 7 D. & R. 783) imposed upon corporeal property, and not upon the owner of it, so that on the change of the owner of the servient tenement the right to the easement is still retained by the owner of the dominant tenement.
“ There can be no easement, properly so called, unless there be both a servient and a dominant tenement.” (Per Lord Cairns, Rangeley v. Midland R. Co., L. R., 3 Ch. 310.) The servient tenement is that over which a right claimed by custom, prescription or grant is exercised, and the dominant tenement is that to which such right is attached. It is essential that the two tenements should belong to different owners; for upon both becoming absolutely vested in the same person the inferior right of easement is merged in the superior title of ownership. (Holmes v. Goring, 2 Bing. 83; 9 Moote, 166.) Where there is an unity of seisin of the land and of the way over the land in one person, the right of way is
Servient and dominant tenements.
either extinguished or suspended, according to the duration of the respective 2 & 3 Will. 4, estates in the land and the way. (James v. Plant, 4 Ad. & EII. 761.) c. 71, s. 2. An easement must be connected with the enjoyment of the dominant tenement (Ackroyd v. Smith, 10 C. B. 164), and must be an incident of a known and usual kind. (Hill v. Tupper, 2 H. & C. 121; 11 W. R. 784.)
Rent cannot issue out of a mere easement (Buzzard v. Capel, 8 B. & C. 141; 2 M. & R. 197; 6 Bing. 150; 3 M. & P. 480; 3 Y. & J. 344); but a payment in respect of an easement may be secured by a covenant or agreement.
Public rights of way, liability to repair highways, rights of way, watercourses, and rights of water and other easements are not to be deemed incambrances within the meaning of the Act for the Transfer of Land (25 & 26 Vict. c. 53, s. 27); nor to be affected by a declaration of title. (25 & 26 Vict. c. 67, s. 29.)
There are an infinite number and variety of easements. The following Instances of may be enumerated :-Rights of way. Right to hang clothes on lines easements. passing over the neighbouring soil. (Drewell v. Toreler, 3 B. & Ad. 735.) The right of landing nets on another man's ground. (Gray v. Bond, 2 Brod. & B. 667.) Right to make spoil banks upon the surface in working mines. (Rogers v. Taylor, 1 H. & N. 706.) The right to use a close for the purpose of mixing muck and preparing manure thereon for an adjoining farm., (Pye v. Mumford, 11 Q. B. 666.), A right to place a pile in the soil of a river for the enjoyment of a wharf. (Lancaster v. Eve, 5 C. B., N. S. 717; 7 W. R. 260; Cory v. Churchwardens of Greenwich, 27 L. T., N. S. 150.) A right in the occupier of an ancient messuage to water his cattle at a pond, and to take the water thereof for domestic purposes, for the more convenient use of his messuage, is a mere easement, and not a profit à prendre in the soil of another. Such a right may be claimed by reason of the occupation of an ancient messgage, without any limitation as to the quantity of water to be taken. (Manning v. Wasdale, 1 Nev. & Per. 172; 5 Ad. & Ell. 758. See Fitch v. Rawling, 2 H. Bl. 395.) The right to go on a neighbour's close and to draw water from a spring there (Race v. Ward, 4 El. & Bl. 702); or from a pump. (Polden 8. Bastard, L. R., 1 Q. B. 156.) The right to go on the soil of another to clear a mill stream and repair its banks. (Beeston v. Weate, 5 E. & B. 996.) The right to conduct water across a neighbour's close by an artificial watercourse. (Ib.) Right to discharge a stream of water, either in its natural state, or changed in quantity or quality. (Wright v. Williams, 1 M. & W. 77.) Right to discharge rain-water by spout or projecting eaves. Right to receive light and air by ancient windows. Right to carry on an offensive trade.
A person may prescribe to an ensement in the freehold of another as belonging to some ancient house, or to land, &c. And a way over the land of another, a gateway, watercourse, or washing-place in another's ground, may be claimed by prescription as easements; but a multitude of persons cannot prescribe, though for an easement they may plead custom. (Cro. Jac. 170; 3 Leon. 254; 3 Mod. 294.) In Goodday v. Michell, Cro. Eliz. 441, a way to a common fountain iş mentioned as an easement claimable for parishioners by custom. The undertakers of a navigation, in whom the soil of the river is not vested, have a mere easement in the land through which it passes. (9 B. & C. 109; Hollis v. Goldfinch, 1 B. & C. 205.) The licence to make a vault in a parish church, and to have the sole and exclusive use of it, is an easement which cannot be effectually granted without a deed or a faculty, although the incumbent of a living has no power to grant such a right even by deed, but only leave to bury in each particular instance. (Bryan v. Whistler, 8 B. & C. 288; 2 M. & Ryl. 318.) The right to sit in a pew in a church annexed to a house is an easement. (5 B. & Ald. 361. See Best on Evidence, p. 479, 3rd ed.; Brumfitt v. Roberts, L. R., 5 C. P. 224.) A man cannot prescribe to have a necessary easement in the land of another person for himself and his servants to catch fish in his several fishery. (Peers v. Lacy, 4 Mod. 362.) But the right to a fishing mill-dam in waters which are not navigable appears to be an easement. (Leconfield v. Lonsdale, L. R., 5 C. P. 657.)