easement over his own land. Lord Hatherley says, "I take the principle laid down in Harbidge v. Warwick, 3 Ex. 552, to be, that in order to obtain an easement over land, you must not be the possessor of it, for you cannot have the land itself and also an easement over it." (a)

The latest case decided in the Ontario Courts is that of Kerr v. Coghill, decided by Chancellor Spragge, in June, 1877, and not yet reported. (b)

The plaintiff was solicitor for defendant, and bought the land with metes and bounds; the plaintiff claimed the use of a water closet that was not on the piece of land sold, but on another piece of land adjoining, belonging also to the defendant. The description of the land in the deed did not embrace the water closet. The plaintiff had been tenant of the defendant, and during the time of his tenancy used the water closet. A man named Lyon had also been tenant, and also used the water closet during the time of his tenancy. There was evidence that defendant intended to convey the premises that Lyon occupied, and the learned Chancellor seemed to think that the deed the defendant signed conveyed the use of the water closet, and created an easement in favour of the plaintiff. Decree for plaintiff.

In the judgment the learned Chancellor alluded to the case of Corley v. Lord Stafford, 1 De G. & J. 238, as to the duty of solicitors buying property from their clients.

This decision appears to me to be contrary to the authorities, as Coghill owned both lots, and during the time that Lyon occupied it there was no easement properly so called. A landlord may allow his tenant to walk over his land without being willing or intending to grant the land or that privilege to a stranger who buys an adjoining lot. No easement can exist when a person owns the land, so that as

(a) Ladyman v. Grave, 6 Chy. Appeals, L. R. 767.

(b) Subsequently reported 25 Grant, 179; in which it appears doubtful whether plaintiff had been tenant. Decision based on the effect of the Statute in Short Forms of Conveyances.

long as Coghill was owner there was no easement. Was an easement created by the deed Coghill signed to Kerr, and did defendant, acting under his own unassisted judgment, understand that he was thus creating an easement?

We think benefit will accrue from the insertion of Mr. Shelford's remarks:

"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 9 C. B., N. S. 682), but an easement, as a right of way in alieno solo, may be claimed by custom. Grimstead v. Marlow, 4 T. R. 717. 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. It was observed by Lord Denman, C. J., "That it might be collected from the case, Day v. Savadge, Hob. 85, 86, that that which is matter of interest, as the taking a profit from the soil, must for its existence have some person in whom it is; and a flux body, which has no entirety or permanence, cannot take that interest, which by the supposition is immemorial and permanent, because, from its nature, it cannot prescribe for anything. Necessity, however, will control this; the case of common of pasture exemplifies both the rule and the exception; in itself it is an interest; it is the taking a profit from the soil; it is properly matter of prescription. If the copyholders of one manor will claim it in the wastes of another, they must, because they can, do so by prescribing in the name of their lord, who in the eye of the law, by reason of his estate, has such a permanence as enables him to prescribe; but if they claim it in his wastes, they cannot prescribe in their own names and rights 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, from necessity, allowed

to claim it by custom. But what is the necessity? that growing out of the original contract, when they received permission to cultivate for their own benefit, and on condition of certain services, certain portion of their lord's land. That compact included the right of common on the lord's waste; and the law will not suffer that right to want a legal character, and so be without the means of its legal enforcement, though at the expense of strict legal reasoning. In the same way, the right now in question must have originated in each instance in a virtual contract; the owner has permitted the tinner to enter and work, when he did not work himself or devote his waste exclusively to other purposes by inclosure, on the condition that the tinner shall render to him a certain portion, fixed by custom, of the produce of the mine. Here, as in the instance of a common, the thing is in its nature to be claimed by prescription only; but they who have it, and ought to have it in justice, cannot prescribe for it from necessity; therefore, that the undoubted right may not be defeated, they shall be allowed to claim it by custom.' Rogers v. Brenton, 10 Q. B. 60, 62.

"In that case the plaintiff claimed under the following custom which the jury found to exist in fact: any person may enter upon the waste land of another in Cornwall, and mark out by four corner boundaries a certain area; a written description of the plot of land so marked with metes and bounds, and the name of the person for whose use the proceeding is taken, is recorded in an immemorial local court, called the Stannary Court, and proclaimed at three successive courts held at stated intervals; if no objection is successfully made by any other person, the Court awards a writ to the bailiff of the court to deliver possession of the said 'bounds or tin work' to the bounder, who thereupon has the exclusive right to search for, dig and take for his own use all tin and tin ore within the described limits, paying to the landowner a certain customary proportion of the ore raised, under the name of toll tin. The right descends to executors, and may be

preserved for an indefinite time, either by actually working and paying toll, or by annually renewing the four boundary marks on a day certain. It was held, that the custom to preserve the right by the mere ceremony of an annual renewal, without working, is unreasonable and bad in law, and that the plaintiff (who had ceased to work or pay toll for eighteen years) could not recover in the above action even as against a stranger, and that although the alleged custom involved a claim of profit in alieno solo, it would have been a good one, if bona fide working had been found to be obligatory under it. Rogers v. Brenton, 10 Q. B. 26.

6

This is a right claimed by a You cannot claim a profit à land, though you may claim.

"It was said by Willes, J., custom which is clearly bad. prendre out of another man's an easement. All the cases, if any, in which such a custom is held to be good must be taken to have been overruled.' Constable v. Nicholson, 11 W. R. 698; 14 C. B., N. S. 230. And see the remarks of Byles, J., Att.-Gen. v. Mathias, 4 K. & J. 591. 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 could not claim such right by prescription. Constable v. Nicholson, 11 W. R. 698; 14 C. B., N. S. 230; and see Pitts v. Kingsbridge Highway Board, 19 W. R. 884. As to a grant by the Crown to a body which could not claim either by prescription or custom, see Willingale v. Maitland, L. R., 3 Eq. 103.

"It is an acknowledged principle that, to give validity to a custom-which has been well described to be a 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. IV. c. 71. 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. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law, for 'consuetudo ex certa causa 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