Prescription. Custom for mine owner to work mines so as to let down surface without paying compensation. Rights incident to grant of mines. Customs as to mines in Cornwall. There were two other pleas under the 2 & 3 Will. 4, c. 71, alleging an en- (Con In an action for working mines under ground near to a house so that the house was injured and in danger of falling for want of support, the defendant claimed as lessee of the manor in which the house was situate and of the mines therein, a prescriptive right to work the mines under any houses parcel of the manor, paying to the occupiers of the surface a reasonable compensation for the use of the surface, but without making compensation on any other account; and the defendant justified under that right. Held, that such a prescription was bad as being unreasonable, and that such a right could not exist by custom. (Hilton v. Granville, 5 Q. B. 701; see Cr. & Phil. 283.) "There can be no doubt but that, to some extent, the authority of Hilton v. Lord Granville has been shaken, inasmuch as a position assumed in the reasoning of the court, as one of the grounds of its decision, has since been distinctly overruled in Rowbotham v. Wilson (8 H. L. Cas. 348; 30 L. J., Q. B. 965), in which the question presented itself for adjudication; and it cannot be denied that the decision itself has not met with the universal approval of the profession, and that it may be desirable that the validity of that decision should be brought under the consideration of a court of error. At the same time it is equally clear, that though the reasoning of the court in Hilton v. Lord Granville has been impugned, the decision in that case has not been overruled; and the judgment having been a considered judgment, and standing unreversed, we do not feel ourselves as otherwise than bound by it. We must, therefore, but without expressing any opinion one way or the other as to the propriety of the decision in question, give judgment on the third plea for the plaintiff, leaving the defendants to take the case into error, if they shall be so advised." (Per Cockburn, C. J., in Blackett v. Bradley, 8 Jur., N. S. 588, 589; 1 B. & S. 140.) v. Lord Granville decided against a custom for a mine owner to work his mines so as to let down the surface without paying compensation to the person so injured by his mining operations. Even if Hilton v. "Hilton Lord Granville is an authority that where there is nothing to show for the right but a customary exercise of it, the custom cannot be supported (which I think is open to question), yet the dictum of Lord Denman in that case, that a grant in specie to the effect of the custom could not be supported, has been since overruled." (Per Lord Chelmsford, Duke of Buccleuch v. Wakefield, L. R., 4 H. L. 410.) A custom as between the owner of the surface and the owner of the mine, entitling the latter to cause a subsidence of the surface, if necessary in working his mines, would be bad and wholly void. (Duke of Buccleuch v. Wakefield, L. R., 4 Eq. 613.) The rights of a grantee of minerals depend on the terms of the deed by which they are conveyed. Under a grant of minerals a power to get them is a necessary incident. (Rowbotham v. Wilson, 8 H. L. Cas. 348; 30 L. J., Q. B. 965.) Prima facie the owner of the surface of land is entitled to the surface itself and all below it ex jure naturæ; and those who claim the property in the minerals below, or any interest in them, must do so by some grant from or conveyance by him. The rights of the grantee of minerals must depend upon the terms of the deed by which they are conveyed or reserved when the surface is conveyed. Prima facie it must be presumed that the minerals are to be enjoyed, and therefore that a power to get them must also be granted or reserved as a necessary incident. A similar presumption primâ facie arises, that the owner of the mines is not to injure the soil above by getting them, if it can be avoided. (Rowbotham v. Wilson, 8 H. L. Cas. 360, per Lord Wensleydale.) A custom of tin bounders as to marking out tin works on waste lands in Cornwall is stated in Rogers v. Brenton (10 Q. B. 26, p. 31, ante). Tin bounders also claim to be entitled by custom to divert all water within their bounds for the purposes of their mines. (Gaved v. Martyn, 19 C. B., N. S. 732; 14 W. R. 62.) This claim was discussed, and it was held that a Prescription. presumption should be made that a right to use the water had been acquired by arrangement with the owner of the mine as well as with the bounders. (Ivimey v. Stocker, L. R., 1 Ch. 396.) In order to make out a prescriptive right it must be claimed as annexed Prescription to land, or as having been created by a grant and enjoyed by a body corpo- proper. rate in continuance from time immemorial, or as a right handed down from ancestor to heir without intermission until the person who claims the present enjoyment. (Constable v. Nicholson, 14 Č. B., N. S. 230; 11 W. R. 699.) There can be no prescriptive right in the nature of a servitude or easement so large as to preclude the ordinary uses of property by the owner of the lands affected. It does not follow that rights which can be sustained by grant can necessarily be sustained by prescription. The law of Scotland agrees with the law of England in holding that the right to village greens and playgrounds stands upon a principle of original dedication to the use of the public. (Dyce v. Hay, 1 Macq. H. L. 305.) What may be claimed by pre scription. A prescription by immemorial usage can in general only be for incorporeal hereditaments, which may be created by grant, such as commons, ways, waifs, estrays, wreck, warren, park, treasure trove, royal fishes, fairs, markets, and the like. (Co. Litt. 114 a; 5 Rep. 109 b; 1 Ventr. 387; Bac. Abr. Customs (B.); Com. Dig. Prescription (C.); Ib. Franchises (A. 1).) A prescription to have a free warren in a manor and in the demesnes thereof is good. (Rex v. Talbot, Cro. Car. 311; Jones, 320. As to franchises, see Cruise's Dig. tit. XXVII.; 2 Bl. Comm. 37-40.) The general rule with regard to prescriptive claims is, that every such claim may be good if by possibility it might have had a legal commencement. (1 T. R. 667.) The right to hold a fair or market may be acquired by Markets. grant and by prescription. (2 Inst. 220.) And where the grantee of a market, under letters-patent from the crown, suffered another to erect a market in his neighbourhood, and to use it for the space of twenty-three years without interruption, it was adjudged that such user operated as a bar to an action on the case for a disturbance of his market. (Holcroft v. Heel, 1 Bos. & P. 400; see 2 Wms. Saund. 174, n.; and Campbell v. Wilson, 3 East, 294.) The lord of an ancient market may by time have a right to prevent other persons from selling goods in their private houses situated within the limits of his franchise. (Moseley v. Walker, 7 B. & C. 40; Mayor of Macclesfield v. Pedley, 4 B. & Ad. 404.) So he may determine in what part of the township the market shall be held, and shift it from place to place, or confine the right of holding it to a particular place. (Curwen v. Salkeld, 3 East, 538; De Rutzen v. Lloyd, 5 Ad. & Ell. 456.) Stallage is a payment due to the owner of a market in respect of the Stallage. exclusive occupation of a portion of the soil. Therefore where a person used a market with a chair and a "ped," that is, a wooden or wicker basket, four feet long, two feet and a-half wide, and two feet high, with a lid which, being turned back and supported by pieces of wood not fixed in the soil, formed a table on which he exposed his provisions for sale, it was held that he was liable for stallage. (Mayor of Yarmouth v. Groom, 1 H. & Colt. 102.) The word "toll" in a grant of a market may include stallage. An exemption from stallage for the inhabitants of a town can be only by way of custom, not of grant or prescription. Whether an exemption or discharge from toll, other than stallage, could be claimed by such grant or prescription for inhabitants generally, was questioned. (Lockwood v. Wood, 6 Q. B. 31; affirmed by Exch. Ch. 1b. 50.) The grant of a market does not of itself imply a right in the grantee to prevent persons from selling marketable articles in their private shops within the limits of the franchise on market days. (Macclesfield (Mayor, &c.) v. Chapman, 12 Mees. & W. 18; 13 L. J., N. S., Exch. 32.) Such a right can exist only by immemorial custom. (Ib.) As to claims to a market toll by prescription, see Lawrence v. Hitch, L. R., 2 Q. B. 184; 3 Q. B. 521. The stat. 10 & 11 Vict. c. 14, consolidates in one act the provisions usually contained in acts for constructing and regulating markets and fairs. Prescription. Tolls. What cannot be claimed by prescription. Toll traverse, which is defined to be a sum demanded for passing over the private soil of another (Com. Dig. tit. Toll (A.)), or a duty which a man pays for passing over the soil of another in a way not a high street (Vin. Abr. tit. Toll (A.)), or for a passage over the private ferry, bridge, &c. of another (1 Sid. 454), may be claimed by prescription by a corporation or an individual, without alleging any consideration, and payment time out of mind is sufficient to support the prescription. (2 Wils. 296.) Until the act 2 & 3 Will. 4, c. 71, such toll could not have been claimed unless it had been taken time out of mind (Fitzh. tit. Toll, pl. 3), and reserved contemporaneously with the dedication of the way to the public. (Pelham v. Pickersgill, 1 T. R. 660; see Lawrence v. Hitch, L. R., 3 Q. B. 521.) In order to support a prescription against public right, a consideration must be proved; as where toll-thorough, that is, a toll for passing over the public highway, is claimed. (Mayor and Burgesses of Nottingham v. Lambert, Willes, 111; Brett v. Beales, 10 B. & C. 508.) And where the plaintiff claimed toll-thorough, and showed that the soil and the tolls before the time of legal memory belonged to the same owner, although they had been severed since, it was held that it was to be presumed that the right of passage had been granted to the public in consideration of the toll. (Pelham v. Pickersgill, 1 T. R. 660.) A right of distress is incident to every toll (Bac. Abr. Distress, F. pl. 6), but it cannot be sold, except in the case of turnpike tolls under 3 Geo. 4, c. 126, s. 39. Tolls may be recovered in assumpsit, and no proof is given of anything like a contract by the party against whom the claim is made; and stallage, which is a satisfaction to the owner of the soil for the liberty of placing a stall upon it, may be recovered in the same way without showing any contract between the owner of the market and the occupier of the stall. (Mayor, &c. of Newport v. Saunders, 3 B. & Ad. 411.) The exemption from toll may also be claimed by prescription or by the king's grant. (4 Inst. 252; 1 H. Bl. 206; 4 T. R. 130; 1 Bos. & Pul. 512; 7 Br. P. C. 126; Mayor of Truro v. Reynolds, 8 Bing. 275; Lord Middleton v. Lambert, 1 Ad. & Ell. 401; 3 Nev. & M. 841.) The citizens or burgesses of a city, borough, &c., may prescribe to be quit of tolls. (F. N. B. 226, I.; 1 H. Bl. 206; Com. Dig. Toll (G. 1.). As to whether inhabitants of a place may prescribe to be quit of toll, see Baker v. Brereman, Cro. Car. 418; recognized 6 Q. B. 63. Port or anchorage tolls may be claimed by prescription. (Foreman v. Free Fishers of Whitstable, L. R., 4 H. L. 266.) A title to lands and other corporeal substances, of which more certain evidence may be had, cannot be made by prescription, as that a man, and all those whose estate he has, have been seised time out of mind of particular lands. (Brooke, Prescription, 122; Vin. Abr. Pres. B. pl. 2; Dr. & St. dial. 1, c. 8; Finch, 132; 2 Bl. Comm. 264.) The right to a given substratum of coal lying under a certain close is a right to land, and cannot be claimed by prescription. It is otherwise of a right to take coal in another man's land. (Wilkinson v. Proud, 11 Mees. & W. 33. See Stoughton v. Lee, 1 Taunt. 402.) What arises by matter of record cannot be prescribed for, but must be claimed by grant, entered on record; such as, for instance, the royal franchises of deodands (which are now abolished by stat. 9 & 10 Vict. c. 62), felons' goods, and the like. These not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by an inferior title. (Co. Litt. 114; 2 Bl. Comm. 265.) A prescription for a right common to all the subjects of the realm cannot be supported. (Pell v. Towers, Noy, 20; Br. Abr. Pres. pl. 71.) Every man of common right may fish in the sea, or with lawful nets in a navigable river (Warren v. Matthews, 6 Mod. 73; Salk. 357), and therefore a prescription for a right of fishing in the sea, as annexed to certain tenenients, is bad ( Ward v. Cresswell, Willes, 265), which is not merely the law of this country, but also of nations (Grot. de Jure Belli et Pacis, b. 2, c. 3, s. 9; Bract. lib. 1, c. 22, s. 6); but a subject may have a several fishery in an arm of the sea by prescription. (Mayor of Oxford v. Richardson, 4 T. R. 439.) And though prima facie every subject has a right to take fish found upon the seashore between high and low watermark, such general right may be abridged by the existence of an exclusive right in some individual. (Bagott v. Orr, 2 Bos. & P. 472.) One prescription cannot be prescribed against another prescription, for the one is as ancient as the other; as if a man prescribe for a way, light or other easement, another cannot prescribe for liberty to stop it when he pleases. (Aldred's case, 9 Rep. 58 b; 2 Mod. 105; Com. Dig. Prescription (F. 4).) A man cannot prescribe or allege a custom against a statute, because it is the highest matter of record in law (3 T. R. 271; 11 East, 495), unless the custom or prescription be saved or preserved by another act. (Co. Litt. 115.) And Lord Coke makes a difference between acts in the negative and in the affirmative; for a statute in the affirmative, without any negative, express or implied, does not take away the common law; and likewise between statutes that are in the negative, for if a statute in the negative be declarative of the ancient law, a man may prescribe or allege a custom against it, as well as he may against a common law. (Hargrave's Co. Litt. 115 a, n. (15).) An ancient custom may be destroyed by the express provisions of a statute or by positive language inconsistent with the existence of the custom. (Merchant Taylors' Company v. Truscott, 11 Exch. 855; Salters' Company v. Jay, 3 Q. B. 109.) By the common law a man might have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended for an indefinite series of years. But by the statute of limitations (32 Hen. 8, c. 2), it is enacted that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession had been within threescore years next before such prescription made. (2 Bl. Com. 263, 264.) And the remedy for such rights, so far as it depended upon real actions, was farther abridged by the abolition of real actions after 31st December, 1834, by the statute 3 & 4 Will. 4, c. 27, s. 36 (see post). Where a profit of any kind to be taken out of lands has not been taken for a vast number of years, and the lands have been enjoyed without yielding such profit to a third person, the consequence is, that the title to it, whatever its nature, shall be presumed to be discharged. (3 Bligh, 245.) But a title gained by prescription or custom is not lost by mere interruption of possession for ten or twenty years, unless there be an interruption of the right, as by unity of possession of right of common, and the land charged therewith of an estate equally high and perdurable in both. (Co. Litt. 114 b.) An unity of possession merely suspends; there must be an unity of ownership to destroy a prescriptive right. (Canham v. Fisk, 2 Cr. & Jerv. 126.) Thus if a person, having a right of common by prescription, takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription; for the suspension was only of the enjoyment, not of the right. (Co. Litt. 113 b.) Easements are extinguished by the union of seisin of the dominant and servient tenements in the same person. (James v. Plant, 4 Ad. & El. 749.) Easements are sometimes extinguished by statute, e. g., the General Inclosure Act, 41 Geo. 3, c. 109, s. 8. They are extinguished when the purpose for which they were created no longer exists. (National Guaranteed Manure Company v. Donald, 4 H. & N. 8.) A prescriptive right may be lost by the destruction of the subject-matter (4 Rep. 88); but not by an alteration of the quality of the thing to which a prescription is annexed. (Hob. 39; 4 Rep. 86 a, 87 a.) Alterations in the dominant tenement will sometimes extinguish an easement. (Allan v. Gomme, 11 Ad. & El. 772.) The release of an easement may be implied from abandonment or non-user. (Cook v. Mayor of Bath, L. R., 6 Eq. 177.) It was said that a release of a right of way, or of a right of common, will not be presumed by mere non-user for a less period than twenty years, although it is otherwise as to lights. (Moore v. Rawson, 3 B. & Cr. 339.) But "it is not so much the duration of the cesser, as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and Prescription. Effect of ancient grant. Prescription against the crown. Several species of common. the intention in him which either the one or the other indicates which are material." (Per Lord Denman, Reg. v. Chorley, 12 Q. B. 519. See Crossley v. Lightowler, L. R., 2 Ch. 482.) The right to hold courts for the determination of civil suits, granted by the king's charter to the steward and suitors of a court of ancient demesne, was held not to be lost by a nonuser of fifty years. (Rex v. The Steward, &c. of Havering, 5 B. & Ald. 691; Rex v. The Mayor, &c. of Hastings, Id. 692, n.) An ancient grant without date did not necessarily destroy a prescriptive right; for it might be either before time of memory, or in confirmation of such prescriptive right, which is matter to be left to a jury. (Addington v. Clode, 2 Bl. Rep. 989.) A plea, that before and at, &c., the defendant and all his ancestors, whose heir he is, from time whereof the memory of man is not to the contrary, have had, and been used and accustomed to have, and of right ought to have had, and the defendant still of right ought to have for himself and themselves, the sole and several herbage and pasturage of and in divers, to wit, 217 acres, &c., of a certain open field, called, &c., was held to be disproved by showing a grant to the defendant's ancestor eighty-one years before for a valuable consideration; and such plea is not aided by the stat. 2 & 3 Will. 4, c. 71, s. 1, which, if relied on, ought to be pleaded. (Welcome v. Upton, 5 Mecs. & W. 398. See Reg. v. Westmark, 2 M. & Rob. 305.) The doctrine as to the grant of a franchise by the crown within time of memory being a determination of a prescriptive claim to the same franchise does not appear to be settled. Where a bishop, having free warren by prescription over the demesne and tenemental lands of a manor whereof he was seised jure ecclesiæ, accepted a grant from the crown to himself and his successors of free warren over the demesne lands of all his manors in England: it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the demesne lands (which the court considered to be at least doubtful), it could not affect it over the other lands of the manor. (Earl of Carnarvon v. Villebois, 13 Mees. & W. 313.) Formerly a prescription could not run against the king, as no delay in resorting to his remedy would bar his right. The maxim was nullum tempus occurrit regi (2 Inst. 273; 2 Roll. 264, 1. 40; Com. Dig. Prescription (F. 1); Broom's Maxims, pp. 65-68, 5th ed.). Liberties and franchises were excepted in the statute 9 Geo. 3, c. 16, limiting the claims of the crown to sixty years (see post, note on the limitation of the rights of the crown). By 32 Geo. 3, c. 58, the crown is barred in informations for usurping corporate offices or franchises by the lapse of six years. (See Bac. Abr., 7th ed., Prerogative (E. 6), 467, and stat. 7 Will. 4 & 1 Vict. c. 78, s. 23; Reg. v. Harris, 11 Ad. & Ell. 518.) It will be observed that by the stat. 2 & 3 Will. 4, c. 71, ss. 1, 2 (ante, pp. 1, 6), the crown is placed upon the same footing with the subject as to the rights affected by that act. (2.) OF RIGHTS OF COMMON. Common is a right or privilege which one or more persons claim to take or use in some part or portion of that which another man's lands, waters, woods, &c., naturally produce, without having an absolute property in such lands, waters, woods, &c. It is called an incorporeal right, which lies in grant, as originally commencing by some agreement between lords and tenants, for some valuable purposes, which by age being formed into a prescription continues good, although there be no deed or instrument in writing that proves the original contract or agreement. (4 Rep. 37 a; 2 Inst. 65; Vent. 387; Bac. Abr. Common.) Common has been divided into five sorts, viz. 1st, Common of pasture, which is a right or liberty that one man or more have to feed or fodder their beasts or cattle in another man's land. 2ndly, Common of turbary, or the liberty of cutting turves in another's soil, to be burnt in a house. (See Noy, 145; 7 East, 121; 3 Lev. 165.) 3rdly, Common of estovers, which is a right of taking trees, loppings, shrubs, or underwood, in another's woods, coppices, &c. (See Cro. Jac. 25, 256; 5 Rep. 25 a; 4 Rep. 87 a; Cro. Eliz. 820; Plowd. 381.) 4thly, Common of piscary, or a |