reply such licence specially under the 8th sect. Where the simple issue is, whether there has been a continued enjoyment of the way for twenty years, any evidence negativing the continuance is admissible. Every time that the occupiers asked for leave, they admitted that the former licence had expired, and that the continuance of the enjoyment was broken. (Monmouthshire Canal Company v. Harford, 1 Cr., M. & R. 615; ante, p. 23.)

9. This act shall not extend to Scotland or Ireland (p). (p) This act has been extended to Ireland by 21 & 22 Vict. c. 42, see ante, p. 2, n. (a).

2 & 3 Will. 4,

c. 71, s. 8.

Not to extend to
Scotland or
Ireland.

10. This act shall commence and take effect on the first day Commencement of Michaelmas Term now next ensuing.

of act.

OF SUBJECTS INCLUDED IN THE PRESCRIPTION ACT.

1. Of the Nature of Prescription.

2. Of Rights of Common.

3. Of the Presumption of Grants of Easements.

4. Of Rights of Way.

5. Of Watercourses.

6. Of the Right to Pews.

7. Of the Right to Light and Air.

1. OF THE NATURE OF PRESCRIPTION.

Every species of prescription by which property is acquired or lost is Nature of prefounded on this presumption, that he who has a quiet and uninterrupted scription. 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 afterwards 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. 1 (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,

Difference be

tween custom and prescription.

Prescribing in que estate.

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. 1. 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 inhabitants to have common to their houses was held not to extend to a new house. (Owen, 4.) 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 custom or 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).) But a custom to pay two years' improved value for a copyhold fine is good. 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 copyholders of a manor have common of pasture upon a particular waste; whereas prescription is always annexed to a particular 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.)

Before the passing of the statute 2 & 3 Will. 4, c. 71, a prescription in a que estate must always have been laid in the person who was seised of the fee simple. A tenant for life, for years, or at will, or a copyholder, could not prescribe in this manner, by reason of the imbecility of their estates; for as prescription was deemed to be always beyond time of memory, it would have been absurd that those whose estates commenced within the memory of man should have prescribed for any thing. Therefore, a tenant for life must have prescribed under cover of the tenant in fee simple, and a copyholder under cover of his lord. (6 Rep. 60 a; Fortesc. 340.) The uniform practice, in a plea justifying under a right of common, was to set out the title to the common specially, by showing a seisin in fee of the land to which the defendant claimed a right of common, either in himself or in some other person under whom he derived title, and then to prescribe in the que estate for the right of common, by showing the right to have been in the party seised in fee, and all those whose estate he had in the land from time immemorial. (Grimstead v. Ma low, 4 T. R. 718; 1 Wms. Saund.

346, n. (1).) And if the defendant was lessee for years, he must have shown the seisin in his lessor, and prescribed in him; for if he laid the prescription in himself it was bad. (Cro. Car. 599; 4 Rep. 38.) As where a defendant justified under a right of common of pasture, showing a demise from a freeholder for life of the land in respect of which he claimed, and averred that he the defendant, and all those whose estate he then had, and his landlord, from time, &c., had common of pasture in respect of the demised premises, it was held upon demurrer to be a bad plea. (Attorney-General v. Gauntlett, 3 Y. & Jer. 93.) But by the fifth section of the act, (ante, p. 21,) in actions on the case, the claimant may allege his right generally; and in pleading to actions of trespass, where previously it would have been necessary to have alleged the right to have existed from time immemorial, it will be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed during the period provided by the act, and without claiming in the name of the owner of the fee.

A profit claimed out of another man's soil must be alleged by way of Profit out of soil prescription, and not by way of custom, for a custom to take a profit in alieno must be claimed solo is bad (Blewitt v. Tregonning, 3 Ad. & Ell. 575. See 9 C. B., N. S. 682), by prescription. but an easement, as a right of way in alieno solo, may be claimed by custom. (Grimstead v. Marlow, 4 T. R. 717.) The same rights may be claimed either by custom or prescription. One is local, the other 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.) 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. Savadge, 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.) 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, this being a mere easement. (Abbot v. Weekly, 1 Lev. 176, cited 4 Ell. & Bl. 713.) 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.)

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.)

In order to make out a prescriptive right, it must be claimed as annexed to land, or as having been created by a grant and enjoyed by a body corporate 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. 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

What customs are valid,

could not claim such right by prescription. (Constable v. Nicholson, 11 W. R. 698.)

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.)

It is an acknowledged principle that, to give validity to a custom,-which 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--27). 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. (See Broadbent v. Wilks, Willes, 363; Wilkes v. Broadbent, 1 Wils. 63.) 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., 8 Jur., N. S. 626.) 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; post.)

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.) 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 till 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.) A custom is good for the freemen of a town to hold horse races, over certain land, every Ascension day. (Mounsey v. Ismy, 9 Jur. 306.) 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. See Broom's Maxims, pp. 824-829, 3rd ed.)

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.); Id. 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 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.)

What may be claimed by piescription.

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 may include stallage. And if the crown grant to H. and his heirs that they may have and hold a market in the town of E., with all tolls and profits thence arising, but neither the crown nor H. has any right of soil in the town, if H. afterwards acquires the soil on which the market is held, he may claim stallage by virtue of the grant. A modern grant by H., a subject, holding under the crown as before mentioned, to which certain persons, styled inhabitants of E., are parties, granting that the said inhabitants of E., "their heirs and assigns for ever," shall enjoy the market as freely as H. held it of the crown, and containing a covenant by H. that they shall do so, does not exempt from stallage an inhabitant not privy to the parties to such grant. Such an exemption 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. Ib. 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 Law J., N. S., Exch. 32.) Such a right can exist only by immemorial custom. (Ib.)

The stat. 10 & 11 Vict. c. 14, consolidates in one act the provisions

S.

D