twenty years was practically conclusive of a right from the reign of Richard I., or, in other words, of a right by prescription, except proof was given of an impossibility of a right from that period; and a very common mode of defeating such a right was proof of a unity of possession since the time of legal memory. To meet this, the grant by lost deed was invented, but in progress of time a difficulty arose in requiring a jury to find, upon their oaths, that a deed had been executed which every one knew never existed; hence the Prescription Act."

Gale on Easements, p. 159, says: "Although the courts refused, in form, to shorten the time of legal memory by analogy to the later Statutes of Limitations, they obviated the inconvenience which must have arisen, from allowing long enjoyment to be defeated by shewing that it had not had a uniform existence during the whole period required, by introducing a new kind of title by presumption of a grant made and lost in modern times." (a)

And on this ground, although it appeared that a right of way had been extinguished by unity of possession (b), or even by an Act of Parliament (c), it has been held that a title might be obtained by an enjoyment for twenty years. These doctrines are only matters of history, as the present Statute and the Prescription Act has settled the tune. The Prescription Act did away, at least in part, with the practice of requiring juries on their oaths to be mere passive instruments in finding facts, in the existence of which the Court itself did not believe." Mr. Starkie, in his Treatise on

(a) The introduction of this doctrine was attempted by a modern civilian. "Landensis," says Martin, p. 82, "alleges that though a prescription is not admissible in support of a discontinuous servitude, usage will raise an inference of an actual grant, the existence of which is to be deduced from the patience of the adversary."

(b) Heymer v. Summers, cited in Read v. Brookman, 3 T. R. 157, Rule N. P. 74.

(c) Campbell v. Wilson, 3 East. 294; Mayor of Hull v. Horner, Cowp. 102; Eldridge v. Knott, Cowp. 214.

Evidence, 2nd Edition, says: "The effect is indirectly to establish an artificial presumption, which, for want either of inclination or authority, could not be established and applied directly. It seems very difficult to say why such presumptions should not at once have been established as mere presumptions of law, to be applied to the facts by the Courts, without the aid of a jury."

"It must be borne in mind that the first section of this Act includes different subjects from those in the second, which distinguishes between easements and common, or profit à prendre, and that a different limitation is established for the first and latter cases. Bailey v. Appleyard, 8 Ad. & Ell. 167; Lawson v. Langley, 4 Ad. & Ell. 890; Jones v. Richard, 5 Ad. & Ell. 413. The right to receive air, light or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains. common; but the right to take something out of the soil' is a profit à prendre, and not an easement. Manning v. Wasdale, 5 Ad. & Ell. 764; 1 Nev. & P. 172; Blewitt v. Tregonning, 3 Ad. & Ell. 554; 5 Nev. & M. 308; Bailey v. Appleyard, 3 Nev. & P. 257; 8 Ad. & Ell. 161. Prescriptive rights in gross are not within the scope of the Statute. Shuttleworth v. Le Fleming, 19 C. B., N. S. 687; 14 W. R. 13. This section applies only to profits à prendre in the land of another, and has no application to a copyholder's acts on his copyhold tenement. Hanmer v. Chance, 34 L. J., Chy. 413; 13 W. R. 556.

"The liberty of fowling has been decided to be a profit à prendre. Davies' Case, 3 Mod. 246. The liberty to hunt is one species of aucupium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit; it is common of fishing. Anon., Hardr. 407. The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a license

given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal license of pleasure, to be exercised by the individual licensee. But in the case of a grant by deed—' of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish and fowl'-to persons, their heirs and assigns,' where it is apparent that not merely the particular individual named, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest, or profit à prendre, was intended to be granted. Per Parke, B., Wickham v. Hawker, 7 Mees. & W. 78, 79. The property in animals feræ naturæ, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a license of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a re-grant of the right by the alienee of the fee simple to the alienor. Ewart v. Graham, 7 H. L. 344, 345, per Lord Campbell. A right to cut down and carry away trees growing in a close (Bailey v. Stevens, 12 C. B., N. S. 91), and a right to take stones and sand from the seashore (Constable v. Nicholson, 14 C. B., N. S. 230), have been held to be profit à prendre.

"It is an elementary rule of law that a profit à prendre in another's soil cannot be claimed by custom, for this among other reasons, that a man's soil might thus be subject to the most grievous burdens in favour of successive multitudes of persons, like the inhabitants of a parish or other district, who could not release the right. The claim of free miners to subvert the soil and carry away the substratum of stone without stint or limit of any kind cannot be supported either on the ground of custom, prescription or lost grant. A claim which is vicious and bad in itself cannot be substantiated by a user, however long. Per Byles, J., Atty.

Gen. v. Matthias, 4 Kay & J. 591; Constable v. Nicholson, 14 C. B., N. S. 230; Johnson v. Barnes, 37 L. T., N. S. 152. To a declaration for breaking and entering the plaintiff's close and taking his fish, a custom pleaded for all the inhabitants of a parish to angle and catch fish in the locus in quo was held to be bad, as this was a profit à prendre, and might lead to the destruction of the subject-matter to which the alleged custom applied. Bland v. Lipscombe, 4 Ell. & Bl. 713, n. (c). A right, claimed by the inhabitants of a township, to enter upon the land of a private person and take water from a well therein for domestic purposes, is an easement and not a profit à prendre, and may therefore properly be claimed by custom. Race v. Ward, 4 Ell. & Bl. 702; 24 L. J., Q. B. 153; 1 Jur., N. S. 704. The Court held an alleged custom to be bad for all the inhabitants occupying lands in a district to enter a close and take therefrom reasonable quantities of sand, which had drifted thereupon, for the purpose of manuring their lands. The reason was, that the drifted sand had become part of the soil, so that the claim was to take a profit in alieno solo. Blewitt v. Tregonning, 3 Ad. & Ell. 554, cited in Race v. Ward, 4 Ell. & Bl. 712.

"Before the passing of this Act, a prescriptive claim was a claim of immemorial right; the evidence in support of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now the burden of establishing an immemorial right is withdrawn, and the proof is limited to thirty years. But the party prescribing must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period. See 8 Ad. & Ell. 167. The plaintiff prescribed under this Statute, first, for a right of pasture thirty years next before the commencement of the action; and secondly, for a right of simply turning on cattle for twenty years. No evidence was given of acts of depasturing at a period commencing

more than thirty years before the commencement of the suit; but that more than twenty-eight years before the suit (in 1809) a rail was erected, so as to prevent the enjoyment of pasture, and that afterwards, the rail having been removed, the plaintiff depastured for twenty-eight years; it was held, that the defendant was not bound to prove that the rail was erected adversely to the plaintiff's right, but that the onus lay on the plaintiff to prove affirmatively his actual enjoyment of pasture for thirty years, and that no presumption could be admitted in his favour on proof of enjoyment for a less period. Bailey v. Appleyard, 8 Ad. & Ell. 161, and note explanatory of case; 3 Nev. & Per. 257, note on case; 2 P. & Dav. 1; 2 Jurist, 872. It was also held, that proof of his enjoyment of pasture for twentyeight years did not include proof of the right of turning on for twenty years, the latter right being an easement only, a right of a quite different nature, and of which no evidence was given. Ibid.

"The plaintiff claimed a right of common by prescription in respect of a que estate in land, and also by thirty and sixty years' enjoyment by the occupier of the land. The defendant offered evidence that a tenant then deceased, while tenant of the land for years, had declared that he had no such right in respect of the land: it was held, that the declaration was not admissible, inasmuch as it was in derogation of the title of the reversioner. Papendick v. Bridgwater, 5 El. & Bl. 166; 1 Jur., N. S. 657; 24 L. J., Q. B. 289. Lord Campbell, C. J., observed: 'It would be very mischievous if it were in the power of a tenant to destroy a profit à prendre belonging to the land which he occupies, or to impose a servitude upon it. There is no difference in this respect between destroying an easement and creating one. If the tenant might say that the land enjoyed no right of way, he might also say that it was liable to an easement for taking water, profit à prendre by turbary or other common. It would come to this: that by