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Again, a custom must be reasonable. Thus an alleged custom to make Prescription. 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 —reasonable ; 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 custom for a tenant (whose lease reserved minerals to the landlord) to take away flints turned up in ordinary course of good husbandry was held reasonable (Tucker v. Linger, 8 App. Cas. 508); also a manorial custom of leasing (R. v. Venn, L. R. 10 Q. B. 310).
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 mako 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 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 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). A custom for victuallers during à 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). 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 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). So a custom for the freemen of a town to hold horse races (Mounsey v. İsmay, 3 H. & C. 486; 34 L. J. Ex. 52). 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). 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 custom in the election of churchwardens, see R. v. Green, 30 L. T. 255; Bremner v. Hull, L. R. 1 C. P. 748.
A custom for the lord of a manor to enter on the waste and to dig through Customs as to the same for the purpose of working the quarries below was held good mines and (Rogers v. Taylor, i H. & N. 706; 26 L. J. Ex. 203). So, also, the custom quarries. 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; à decision criticised unfavourably in Blackett v. Bradley, 1 B. & S. 140; and in Buccleuch y. Wakefield, L. R. 4 H. L. 410; but approved in Bell
Prescription. v. Love, 10 Q. B. Div. 561 ; 9 App. Cas. 286; see Consett Co. v. Ritson, 22
Q. B. D. 321). A similar custom requiring the lord to pay compensation would be good (Aspden v. Seddon, 1 Ex. Div. 510). 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).
PRESCRIP- A prescription by immemorial usage can in general only be for incor
TION poreal hereditaments, which may be created by grant, such as commons, PROPER. ways, waifs, estrays, wreck, warren, park, treasure trove, royal fishes, fairs, What may be markets, and the like (Co. Litt. 114 a; 5 Rep. 109 b; 1 Ventr. 387; Bac. claimed by Abr. Customs (B); Com. Dig. Prescription (C.); 16. Franchises (A. 1)). prescription. A prescription to have a free warren in a manor and in the demesnes
thereof is good (R. 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
be good if by possibility it might have had a legal commencement (1 T. R. 667). Profits à prendre (See ante, p. 2), and easements (See ante, p. 5), can be claimed by prescription. The owner of one close may be bound by prescription to maintain a fence between his close and an adjoining close (Lawre
rence v. Jenkins, L. R. 8 Q. B. 274). And the owner of land fronting the sea may be similarly bound to maintain a sea-wall for the protection of an adjoining owner (Hudson v. Tabor, 2 Q. B. Div. 292; R. v. Essex, 14 Q. B. Div. 561; 11 App. Cas. 449). As to the duty of a riparian proprietor on a tidal river in this respect, see Nitro-Phosphate Co. v. London and S. Katharine's Dock Co., 9 Ch. Div. 503; Burt v. Victoria Co., 47 L. T. 378. A claim to visitation fees may be supported by prescription (Shepherd v. Payne, 16 C. B. N. S. 132; 33 L. J. C. P. 158);
and also to marriage fees (Bryant v. Foot, L. R. 3 Q. B. 497). Markets. The right to hold a fair or market may be acquired by grant and by
prescription (2 Inst. 220). Where a market has been held immemorially in certain places within a manor, it may be presumed the market was granted to be holden in any convenient place within the manor (De Rutzen V. Lloyd, 5 Ad. & Ell. 456). Where a royal charter granted the right to hold a market on two days of the week, and a usage to hold the market also on additional days was proved, the court refused, under the circumstances, to presume a lost grant of the market in respect of the additional days (A. G. v. Horner, 14 Q. B. Div. 245). The grant of a market does not imply a right in the grantee to prevent persons selling marketable articles on market days in their own houses within the limits of the franchise (Macclesfield v. Chapman, 12 M. & W. 18; Penryn v. Best, 3 Ex. Div. 292). But such a right may be acquired by prescription (Ib.; Fearon v. Mitchell, L. R. 7 Q. B. 696; Moseley v. Walker, 7 B. & C. 40; Macclesfield v. Pedley, 4 B. & Ad. 404). A right to market tolls was held to have been acquired by prescription in Lawrence v. Hitch, L. R. 3 Q. B. 521. Where an old market franchise has been increased in strength and character by statute, the old franchise is gone, and the statute is alone to be looked to (Abergavenny v. Straker, 42 Ch. D. 89). The lord of the manor, to whom the grant of a market is made, has a right to remove the market-place from one situation to another within the precincts of his grant (Curwen v. Salkeld, 3 East, 538; see De Rutzen v. Lloyd, 5 Ad. & Ell. 456 ; London v. Lowe, 42 L. T. 16). As to the enlargement of a market, see A. G. v. Cambridge, L. R. 6'H. L. 303; A. G. v. Horner, 14 Q. B. Diy. 245.
A market may be disturbed by establishing a new market, either within Prescription. or without the limits of the franchise (Dorchester v. Entsor, L. R. 4 Ex. 341). If a new market is held on the same day as an old market, it is presumed to be a disturbance of the old market, but if on a different day actual damage must be shown (Ib.; Elwes v. Payne, 12 Ch. D. 472; Yard V. Ford, 2 Wms. Saund. 500). A market may also be disturbed by establishing a rival place of sale, though not technically a market (London v. Lowe, 42 L. T. 16; Goldsmid v. G. E. Ry. Co., 25 Ch. D. 541; 9 App. Cas. 927; Abergavenny v. Straker, 42 Ch. D. 83); and the rival place of sale may be outside the limits of the franchise (S. CC.) But as an ordinary rule, the sale of a man's own goods in the ordinary course of business, in his own shop, outside the limits of the franchise, is not a disturbance (Manchester v. Lyons, 22 Ch. Div. 307). Where the grantee of a market from the Crown suffered another to erect a market in his neighbourhood, and to use it for twenty-three years without interruption, such user was a bar to an action on the case for disturbance (Holfcroft v. Hole, 1 Bos. & P. 400; see 2 Wms. Saund. 502, n.; and Campbell v. Wilson, 3 East, 294). See, however, London v. Lowe (42 L. T. 16), where acts of disturbance were held not justified, although they had continued for more than half a century. The act 10 & 11 Vict. c. 14 consolidates the provisions usually contained in acts for regulating markets.
There is a distinction between market tolls which are paid for the use Stallage. of a market, and stallage which is paid for the occupation of lands within the market (London v. St. Sepulchre, L. R. 7 Q. B. 313; R. v. Casswell, id. 382; Yarmouth v. Groom, 1 H. & C. 102). The test is, has a man any occupation beyond what the general public has ? (R. v. Bedford, 45 L. T. 616, 621). Stallage tolls are rateable, but market tolls are not (S. CC.; and see Percy v. Ashford Union, 34 L. T. 579). As to occupiers of stands within a market being entitled to franchise, see Hall v. Metcalfe, 1892, 1 Q. B. 208. 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 by 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 in Lockwood v. Wood, 6 Q. B. 30.
Toll traverse, which is defined to be a sum demanded for passing over Tolls. 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; see Brecon Co. v. Neath Co., L. R. 7 C. P. 555; 8 C. P. 157). 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 (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 toli (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
Prescription. without showing any contract between the owner of the market and the
occupier of the stall (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 Hİ. Bl. 206; 4 T. R. 130; 1 Bos. & P. 512; 7 Br. P. C. 126; Truro v. Reynolds, 8 Bing. 275; 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. Whitstable, L. R. 4 H. L. 266). See further as to the distinction between toll thorough and toll traverse, Brecon Co. v. Neuth Co., L. R. 7 C. P. 555;
8 C. P. 157. What cannot No prescriptive right can be acquired to justify a public nuisance be claimed by (A. G. v. Barnsley, 1874, W. N. 37; see Brown v. Russell, L. R. 3 Q. B. prescription. 251; Mumford v. Oxford, dc. R. Co., 1 H. & N. 34). Nor can a claim be
made by prescription to anything which could not have had a legal beginning (Goodman v. Saltash, 7 App. Cas. 648). But it seems that it is not necessary that the thing should be legal through all the time of prescription (Millington v. Griffiths, 30 L. T. 65, 68).
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 (Tilkinson v. Proud, 11 M. & W. 33; see Stoughton v. Leigh, 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).
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 (Harg. 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 f'aylors' Co. v. Truscott, 11 Exch. 855; Salters'
Jay, 3 Q. B. 109). But where a statute making an act illegal comes into force while a prescription is running, the prescription, after the proper period has elapsed, may be an answer to an individual suing as an
individual (Millington v. Griffiths, 30 L. T. 65). How prescrip- By the common law a man might have prescribed for a right which had tive rights been enjoyed by his ancestors or predecessors at any distance of time, may be lost.
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 posses- Prescription.
1 sion 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 further abridged by the abolition of real actions after 31st December, 1834, by the statute 3 & 4 Will. 4, c. 27, s. 36 (see post). It was said by Lord Redesdale that 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 (Norbury v. Meade, 3 Bligh, 245). But in Neill v. Devonshire (8 App. Cas. 135), it was said that an incorporeal hereditament such as a several fishery, which can only pass by deed, cannot be abandoned.
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 nd 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 the express words of a statute, e.g., the General Inclosure Acts, 41 Geo. 3, c. 109; 8 & 9 Vict. c. 118 (See Turner v. Crush, 4 App. Cas. 221); or by necessary implication from a statute (Yarmouth v. Simmons, 10 Ch. D. 518). They are extinguished when the purpose for which they were created no longer exists (National Manure Co. 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. Bath, 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. & C. 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 the intention in him which either the one or the other indicates, which are material” (R. v. Chorley, 12 Q. B. 519; see Crossley v. Lightowler, 2 Ch. 482; Eccl. Commrs. v. Kino, 14 Ch. Div. 213). 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 non-user of fifty years (R. v. Havering, 5 B. & Ald. 691; R. v. Hustings, Id. 692, n.) À prescriptive right may be defeated by showing the origin of the user, and that it is not in accordance with the right claimed (Commissioners of Sewers v. Glasse, 19 Eq. 155 ; see Neill v. Devonshire, 8 App. Cas. 135).
An ancient grant without date did not necessarily destroy a prescriptive Effect of right; for it might be either before time of memory, or in confirmation of ancient grant. such prescriptive right, which is matter to be left to a jury (Addington v. Clode, 2 Bl. Rep. 989); but if the ancient grant is clearly not antecedent to the time of legal memory it will disprove immemorial prescription (Welcome v. Upton, 5 M. & W. 398; see R. v. Westmark, 2 M. & Rob. 305). The grant by the Crown of a franchise to hold a market on Thursdays and
a Saturdays precludes the presumption of a lost grant from the Crown giving a right to exercise the franchise on other days (A. G. v. Horner, 14