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)." (Per Tindal, C. J., Tyson v. Smith, 9 Ad. & Ell. 421.) Thus an alleged custom to make grips at sides of roads for drainage was bad as unreasonable (Nicol v. Beaumont, 50 L. T. 112). So also an alleged custom that an outgoing tenant should look to the incoming tenant for payment for seeds, &c., to the exclusion of the landlord's liability (Bradburn v. Foley, 3 C. P. D. 129). But a manorial custom of leasing was held reasonable (R. v. Venn, L. R. 10 Q. B. 310), and a custom for commoners to take rabbits on the waste (Coote v. Ford, 83 L. T. 482); secus, a custom for any person to do so (lb.).

Custom.

Again, the custom must have commenced from time immemorial. -immemoAccordingly a custom to erect stalls for hiring servants at statute sessions rial; was held bad, statute sessions having been introduced by the Statutes of Labourers, the first of which was in the reign of Edward 3 (Simpson v. Wells, L. R. 7 Q. B. 214). A custom is usually proved by evidence extending over at least half a century (Hammerton v. Honey, 24 W. R. 604). But a regular usage for twenty years unexplained and uncontradicted may suffice to support an immemorial custom (R. v. Jolliffe, 2 B. & C. 54).

Lastly, a custom must be continuous (see Hammerton v. Honey, 24 -continuous. W. R. 603).

Customs derogatory from the general right of property must be con- Instances of strued strictly, and, above all things, they must be reasonable (Rogers v. customs. 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; see Chilton v. London, 7 Ch. D. 735). A custom binding tenants of a manor to repair their tenements was good (Blackmore v. White, 1899, 1 Q. B. 293). 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 (R. v. Dalby, 3 Q. B. 602). A custom exempting occupiers of a hamlet from contributing to repair of highways beyond its limits was held not proved (R. v. Rollett, L. R. 10 Q. B. 469). A custom to go on a close and take water from a spring was held good when claimed for the inhabitants of a township (Race v. Ward, 4 Ell. & Bl. 702; see Harrop v. Hirst, L. R. 4 Exch. 43; Smith v. Archibald, 5 A. C. 512), but not when claimed for the public generally (Dungarvan v. Mansfield, 1897, 1 I. R. 420). A custom for victuallers during a fair to enter upon a certain close within a borough, and to erect booths there leaving sufficient part of such close open for use as a public highway, and paying to the owner of the soil a reasonable compensation, was held good (Elwood v. Bullock, 6 Q. B. 383). So a custom for victuallers during a fair to erect booths on a common part of the waste of a manor (Tyson v. Smith, 9 Ad. & Ell. 406). A custom to deposit oysters on the foreshore was good (Truro v. Rowe, 1901, 2 K. B. 870); and for fishermen to dry nets (5 Co. 84 (a)). A custom is good for the inhabitants of a vill to dance on a particular close for their recreation (Abbot v. Weekly, 1 Lev. 176; cited 4 El. & Bl. 713; Hall v. Nottingham, 1 Ex. D. 1; see Warrick v. Queen's College, 10 Eq. 105; Abercromby v. Fermoy, 1900, 1 Ir. R. 302), The right of recreation by custom cannot be claimed for the public, but must be confined to the inhabitants of a particular district (Bourke v. Davis, 44 Ch. D. 120; Coventry v. Willes, 12 W. R. 127; Forbes v. Eccl. Commrs., 15 Eq. 51; see Tyne Commrs. v. Imrie, 81 L. T. 174; Paterson v. Bain, 6 App. Cas. 833). And such a right for the inhabitants of

Custom.

Customs as to mines and quarries.

Usages.

Profit à prendre in

another's soil.

several adjoining parishes claimed over land in one of such parishes was bad (Edwards v. Jenkins, 1896, 1 Ch. 308). A custom for the freemen of a town to hold horse races was held good (Mounsey v. Ismay, 3 H. & C. 486; 34 L. J. Ex. 52). A custom for the inhabitants of a parish to exercise horses in a place beyond the parish is bad (Sowerby v. Coleman, L. R. 2 Ex. 96). As to a way to the parish church, see Batten v. Gedye, 41 Ch. D. 507. A custom was good which bound the parson as owner of the great tithes to keep a bull and boar for the use of the parishioners (Lanckbury v. Bode, 1898, 2 Ch. 120). As to custom in the election of churchwardens, see R. v. Green, 30 L. T. 255; Bremner v. Hull, L. R. 1 C. P. 748. There may be a custom obliging landowners to maintain sea frontages (L. & N. W. R. v. Fobbing Levels, 66 L. J. Q. B. 127). As to claiming profits à prendre by custom, see generally the note below.

A custom for the lord of a manor to enter on the waste and to dig through the same for the purpose of working the quarries below was held good (Rogers v. Taylor, 1 H. & N. 706; 26 L. J. Ex. 203). So, also, the custom for the lord to enter on copyhold tenements for purpose of mining proved to exist in the Isle of Man (Ballacorkish Co. v. Harrison, L. R. 5 P. C. 49). An alleged custom for the lord of a manor to work mines under any parcel of the manor so as to let down the surface, without making compensation, was held bad (Hilton v. Granville, 5 Q. B. 701; Cr. & Ph. 283; a decision criticised unfavourably in Blackett v. Bradley, 1 B. & S. 140; and in Buccleuch v. Wakefield, L. R. 4 H. L. 410; but approved in Bell v. Love, 10 Q. B. Div. 561; 9 App. Cas. 286; see Consett Co. v. Ritson, 22 Q. B. D. 321; in the C. A., 43 W. R. 122; Hayles v. Pease, 1899, 1 Ch. 567). A similar custom requiring the lord to pay compensation would be good (Aspden v. Seddon, 1 Ex. Div. 510). As to customs and rights in respect of the waste of a manor, see post, p. 45.

As to mining customs in the High Peak District, see Wake v. Redfearn, 43 L. T. 123; Wake v. Hall, 8 App. Cas. 195. 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). 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). This claim was discussed, and it was held that a 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, 1 Ch. 396).

The customs referred to above must be distinguished from usages which are imported into commercial contracts, or into contracts between landlord and tenant (Dashwood v. Magniac, 1891, 3 Ch. 370). As to these usages, see Wigglesworth v. Dallison, 1 Smith, L. C. 528, and the notes thereto. Such usages need not be immemorial (Crouch v. Crédit Foncier, L. R. 8 Q. B. 386; Tucker v. Singer, 8 App. Cas. 508, where a modern usage for a tenant whose lease reserved minerals to take away flints turned up in the ordinary course of good husbandry was upheld). A modern usage as to cutting timber was considered in construing a will; and as between persons claiming under it rendered that not waste which would have been waste between others (Dashwood v. Magniac, 1891, 3 Ch. 352). Mercantile usage, however, cannot prevail against positive law (Goodwin v. Robarts, L. R. 10 Exch. 357).

F. Modes of Claiming Profits à Prendre.

Rights of common in the waste of a manor can be claimed by freeholders by prescription (Warrick v. Queen's College, 6 Ch. 716), and by copyholders by custom (post, p. 37). But except in the case of common claimed by copyholders by custom, 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 ante, p. 3). 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). In trespass for taking stones, &c., from the sea-shore, 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 highways to take such stones. 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 graut, and therefore could not claim such right by prescription (Constable v. Nicholson, 14 C. B. N. S. 230; Pitts v. Kingsbridge Board, 19 W. R. 884; see A.-G. v. Mathias, 4 K. & J. 591). "Owners and occupiers" cannot claim a profit à prendre by prescription (Tilbury v. Silva, 43 Ch. D. 98). A claim, however, by "inhabitants" of tenements in a borough to the privilege of oyster dredging within a fishery which had been acquired by prescription by the borough corporation was supported by presuming a grant to the corporation subject to a trust (in the nature of a charitable trust) in favour of the inhabitants (Goodman v. Saltash, 7 App. Cas. 633; see the charitable trusts held to exist in A.-G. v. Meyrick, 1893, A. C. 1; Wilson v. Barnes, 38 Ch. Div. 507). Compare the right of fishing vested in a corporation in trust for its members (Re Free Fishermen of Faversham, 36 Ch. Div. 329); and the case where a vestry had during a long period let the grazing on a highway, and a lawful origin was found by presuming a grant to a trustee for the parish (Haigh v. West, 1893, 2 Q. B. 19). A Crown grant to the inhabitants of a parish to take profits à prendre out of a royal manor is valid, the effect of the grant being to incorporate the inhabitants for the purpose of enabling them to exercise the right (Willingule v. Maitland, 3 Eq. 103). But such a grant will not be presumed from proof of user by the inhabitants, if the presumption is inconsistent with the past and existing state of things and there is no trace of such a corporation having existed at any time (Rivers v. Adams, 3 Ex. D. 361). In the case of such a grant an action is maintainable only by the inhabitants as a corporation (Chilton v. London, 7 Ch. D. 735).

As to claims to profit à prendre, see further the note to sect. 1 of the Prescription Act, 1832, ante, p. 2; and the note on commons, post, p. 37.

Profits

a prendre.

III.-RIGHTS OF COMMON.

(1) The different kinds of Common, and what Common Rights

may be prescribed for...35.

(2) Common of Pasture...37.

(3) Common of Turbary...40.

(4) Common of Estovers...41.

(5) Common of Piscary, and herein of Rights of Fishing

Generally...42.

(6) Customs to take sand, gravel, &c....44.

(7) Rights of Lord in the waste...44.

(8) Inclosure of Commons...46.

(9) Rights of the Commoners...47.

(10) Conveyance of Common Rights...47.

(11) Extinguishment of Common Rights...47.

(12) Remedies for Disturbance of Common Rights...48.

(1) Several species

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, of common. woods, &c., naturally produce, without having an absolute property in

Rights of
Common.

What commonable

rights may be prescribed for.

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). When the Crown dedicated land as "permanent common," but designated no commoner, common of pasturage was not created (Sydney v. A. G. for N. S. Wales, 1894, A. C. 444). 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; Wilson v. Willes, 7 East, 121; 3 Lev. 165). 3rdly, Common of estorers, 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 right and liberty of taking fish in another's pond, pool, or river. And 5thly, a liberty which in some manors the tenants have, of digging and taking sand, gravel, stone, &c. in the lord's soil (Bac. Abr. Common, (A.)). All claims of this kind, in order to be valid, must be made with some limitation and restriction (Clayton v. Corby, 5 Q. B. 419).

A party may prescribe to take the sole and several herbage which may be granted (Co. Litt. 122; Hoskins v. Robins, Pollexf. 13; Potter v. North, 1 Vent. 385; Welcome v. Upton, 6 M. & W. 543; see North v. Cox, 1 Lev. 253; Johnson v. Barnes, L. R. 8 C. P. 527). Instances of sole pasturage are to be found in the South Downs, in Sussex, and they are frequently transferred in gross; it is the same with the cattle-gates in the North of England, although some have thought the owners of them are tenants in common of the soil (Welcome v. Upton, 6 M. & W. 541, 542; R. v. Whixley, 1 T. R. 137). The grant of vesturam terræ or herbagium terræ does not pass the land or soil itself (Co. Litt. 4 b). A cattle-gate is not a more extensive right than the above, and does not include the right to the soil (Rigg v. Lonsdale, 1 H. & N. 923, 936; see Robinson v. Wray, L. R. 1 C. P. 490). A person may prescribe to have the sole and several pasture, vesture or herbage, in exclusion of the owner of the soil, for a limited time in every year (Fitz. Prescription, 51; Co. Litt. 122 a; 2 Roll. Abr. 267 (L.) pl. 6; Winch's Rep. 5; Hutt. 45; Johnson v. Barnes, L. R. 8 C. P. 527); or for the whole year (Hoskins v. Robins, 2 Saund. 324; S. C., 2 Lev. 2; Pollexf. 13; 1 Mod. 74). So a tenant may prescribe to have all the thorns growing upon such a place in exclusion of the owner of the soil (Douglass v. Kendal, Cro. Jac. 256). But a man cannot prescribe to have common eo nomine for the whole year, in exclusion of the lord, for this is held to be repugnant to the nature of the thing (Co. Litt. 122 a; 1 Roll. Abr. 396 (A.), pl. 1, 2; 2 Roll. Abr. 267, pl. 3; 2 Lev. 268; 1 Ventr. 395). However, it is said that the lord may by custom be restrained to a qualified right of common during a part of the year (Yelv. 129; 1 Brownl. 187; Cro. Jac. 208, 257). So it is said the lord may be restrained, together with the commoners, from using a common at all during a part of the year (1 Roll. Abr. 405, 406); and that the commoners may prescribe to have common in exclusion of the lord for part of a year (2 Roll. Abr. 267 (L.), pl. 1; 1 Wms. Saund. 353, n. (2)). The claim in right of a freehold estate and the lands which formerly belonged to the manor farm, of a separate right of feeding and folding an unlimited number of sheep, is not a claim of a right of common, but of something in the nature of a separate right of feeding and folding (Kielway, 198 a; Punsany and Leader's case, 1 Leon. 11), which may have arisen out of an exception made by the lord upon granting the lands, or it may have been created by an act of parliament (Ivatt v. Mann, 3 M. & G. 699). A right of pannage, i.e., the consumption by pigs of fallen acorns, may be prescribed for (Chilton v. London, 7 Ch. D. 562); as also a right to cut and carry away litter from a forest (De la Warr v. Miles, 17 Ch. Div. 535).

Rights of
Common.

And common by prescription.

A person cannot prescribe for a right of common as occupier of a messuage (English v. Burnell, 2 Wils. 258; Davies v. Williams, 16 Q. B. 543). Where rights of common have been exercised for many years by the freehold tenants of a manor, and also by the inhabitants, the court will Claims to presume that the inhabitants claimed through the freehold tenants. where such rights have been exercised for many years, the court will try to find a legal origin for those rights, and presume a grant, if necessary (Warrick v. Queen's College, 6 Ch. 716). Such rights may be claimed in the case of copyhold tenants of the manor by custom, and in the case of the freehold tenants by prescription (Ib.).

custom.

Rights of common in the wastes of the lord may be claimed by custom Claims to by copyholders (Gateward's case, 6 Rep. 59; Bean v. Bloom, 2 Bl. R. 926; common by S. C., 3 Wils. 456). They cannot prescribe in their own names 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 allowed to claim it by custom (per Lord Denman, Rogers v. Brenton, 10 Q. B. 61; see Warrick v. Queen's College, 10 Eq. 122). But common cannot be claimed by "dwellers" in a manor (Allgood v. Gibson, 25 W. R. 60; 31 L. T. 883); or by "occupiers" of copyhold lands under the copyholders (Austin v. Amhurst, 7 Ch. D. 689; Knight v. King, 20 L. T. 494). For cases where trusts of commonable rights for the benefit of occupiers were held to have been created, see 4.-G. v. Meyrick, 1893, A. Ĉ. 1; Simcoe v. Pethick, 1898, 2 Q. B. 555.

Common of pasture is, where one person has, in common with other Common of persons, the right of taking by the mouths of his cattle the herbage pasture. growing on the land of which some other person is the owner. This

species of common is either appendant, appurtenant, or in gross (Selw. N. P. Common, s. 2).

Common appendant is a right belonging to the owners and occupiers of Common arable lands to put commonable beasts upon the lord's waste, and upon appendant. the lands of other persons within the same manor. Commonable beasts are horses and oxen to plough the land, and cows and sheep to manure it (Co. Litt. 122 a). This as matter of universal right was originally permitted not only for the encouragement of agriculture but for the necessity of the thing. For when lords of manors granted out parcels of land to tenants for services either done or to be done, these tenants could not plough or manure the land without beasts. These beasts could not be sustained without pasture, and pasture could not be had but in the lord's wastes, and in the uninclosed fallow grounds of themselves and the other tenants. The law therefore annexed this right of common as inseparably incident to the grant of the lands (2 Bl. Com. 33; Tyrringham's case, 4 Rep. 36 a; 2 Inst. 85). There is no general common law right of tenants of a manor to common appendant in the waste. Parke, B., said, although there are some books which state that common appendant is of common right, and that common appendant is the common law right of every free tenant in the lord's wastes (see Mellor v. Spateman, 1 Wms. Saund. 346 d, 6th ed.; Bennett v. Reeve, Willes, 227; Com. Dig. Comm. B.), it is not to be understood that every tenant of a manor has by common law such a right, but only that certain tenants have such a right, not by prescription, but as a right at common law, incident to the grant. The right therefore is not a common right of all tenants, but belongs only to each grantee, before the stat. Quia emptores, of arable land by virtue of his individual grant and as incident thereto; and it is as much a peculiar right of the grantee as one derived by express grant, or by prescription, though it differs in its extent, being limited to such cattle as are kept for ploughing and manuring the arable land granted, and as are of a description fit for that purpose; whereas the right by grant or prescription has no such limits and depends on the will of the grantor (Dunraven v. Llewellyn, 15 Q. B. 810, 811). As to this decision see Williams' Real Prop., App. C., 605, 15th ed., and Warrick v. Queen's College, 10 Eq. 123.