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 prima 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. 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 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 Chy. App. 396.

"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. Constable v. Nicholson, 14 C. 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. Haye, 1 Macq. H. L. 305.

"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); Ibid. 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 twentythree 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 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. Ibid. 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. Ibid. 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 Vic. cap. 14, consolidates in one Act the provisions usually contained in Acts for constructing and regulating markets and fairs.

"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. IV. cap. 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 shewed 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. IV. cap. 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 shewing 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 9 & 10 Vic. cap. 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 tenements, 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 sea-shore between high and low water-mark, 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