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gives the reason: “For water is a movable, wandering thing, and must of necessity continue common by the law of nature." Ib. p. 18. It is not disputed that this would be so with respect to the water of a river or any open running stream. We think it is equally true as to the water of a spring, when it first issues from the ground. This is no part of the soil, like sand, or clay, or stones ; nor the produce of the soil, like grass, or turves, or trees. A right to take these by custom, claimed by all the inhabitants of a district, would clearly be bad ; for they all come under the category of profit à prendre, being part of the soil or the produce of the soil; and such a claim, which might leave nothing for the owner of the soil, is wholly inconsistent with the right of property in the soil. But the spring of water is supplied and renewed by nature; it must have flowed from a distance by an underground channel ; and, when it issues from the ground, till appropriated for use, it flows onward by the law of gravitation. While it remains in the field where it issues forth, in the absence of any servitude or custom giving a right to others, the owner of the field, and he only, has a right to appropriate it; for no one else can do so without committing a trespass upon the field ; but when it has left his field, he has no more power over it, or interest in it, than any other stranger.
For these reasons it has been considered that the inhabitants of a district may, by custom, have a right to go upon the soil of another to take or to use water. On examining the Year. Book, Trin. 15 Ed. 4, fol. 29 A, pl. 7, cited at the bar, it would appear that Genney, as counsel, says it would be a good prescription that all the inhabitants in such a vill have used from time immemorial to have the water in such a pond to drink, &c. Catesby, then a judge, assents to this, and he likens it to a custom for all the fishermen,inhabitants in a particular vill, to have a right to dry their nets on a particular close. There the word “ prescription" is used; but there is no prescription stated in a que estate ; and a customary right by reason of inbabitancy in a particular district is evidently described and intended.
In Weekly v. Wildman, 1 Ld. Raym. 407, we find certain obiter dicta upon this subject which are entitled to some weight. « Blencowe, J. Inhabitants may have a custom to have pot water, which is an interest, and not barely an easement. But Powell, J., denied that, and said that it is only an easement.” Both these learned judges agree that inhabitants may have a right to enter the soil of another to take pot water; and only differ as to the name to be given to it.
1 According to Haydn's Book of Dignities, Catesby did not become a judge till 1482 (21, 22 Ed. 4). In 15 Ed. 4 (1475–6) the judges of the Common Pleas, in which court the case in the text occurred, appear, on comparing the Year-Book with the same authority, to have been Brian, C. J., Littleton, Choke, and Neele, JJ. — REP.
? “Ceo ad este admitte adire que touts les piscars en un tiel ewe,” &c., “sans mie le quel les piscars sont inhabitants en ascun ville, per que a pluis fort le prescriptið serra bon en le case al barre," which was that of a right laid in all the citizens and in. habitants of Coventry. - REP,
Manning v. Wusdule, 5 A. & E. 758, appears to be an express adjudication in favor of such a custom. The first count of the declaration claimed a right in the plaintiff, as occupier of an ancient messuage within the parish of St. Ives, to wash and water his cattle in a certain pond, and also to take and use the water of the said pond for domestic purposes, for the more convenient use and enjoyment of the said messuage, at all times, at his free will and pleasure. But, in the second count, the plaintiff claimed the same right merely as an inhabitant householder of the parish. After a very learned and powerful argument from my brother Wightman, then at the bar, and counsel for the defendant, to the effect that the plaintiff claimed -a profit à prendre in alieno solo, and that both counts were bad, Lord Denman said : “ It is not consistent with ordinary language to call the taking of water a profit à prendre.” He then (without adverting to the second count) said that at all events the declaration was good, the claim being made in respect of the plaintiff's house. Patteson, J., was proceeding to give judgment on the same ground, when, his attention being directed by the defendant's counsel to the second count, he says: “It is then necessary to decide the other question ; and I am of opinion that this is not a profit à prendre, which must be something taken out of the soil.” And now he goes on to lay down the position that “ inhabitants of a parish might have a right to an easement of this sort.” Williams, J., agreed that this did not appear to be a profit à prendre, and my brother Coleridge, who, from the questions he puts during the argument, shows that he had very deliberately considered the subject, says: “ My judgment rests upon a ground which makes the difference between the two counts immaterial. I think the right claimed in each is a mere eusement."
The authorities relied upon by Mr. Unthank are not inconsistent with this doctrine. His quotation from Bracton does not prove that the right to take water when flowing in its natural course is a profit à prendre; and the learned author of that treatise, by the words he uses immediately after, shows that he was well aware of the distinction between such water and water in a cistern, which is the subject of private property.
In Wickham v. Hawker, 7 M. & W. 63, the Court of Exchequer held that a “liberty, with servants or otherwise, to come into and upon” lands, “and there to hawk, hunt, fish, and fowl,” is a profit à prendre within the Prescription Act, 2 & 3 W. 4, c. 71 ; but that liberty and a liberty to take water are so different that they furnish no safe analogy to guide us in this case.
In Blewett v. Tregonning, 3 A. & E. 554, this 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 close, so that the claim was to take a profit in alieno solo ; but the water to be taken never had become part of the close ; nor was it the produce of the close.
The plaintiff's counsel lastly referred to the recent decision of the House of Lords in Dyce v. Lady James Hay, 1 Macqueen, 305, in which the Lord Chancellor said that neither by the law of Scotland or of England can there be a 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. But no such consequence will follow from the customary easement claimed in the present case; and it does not interfere with the ordinary uses of the plaintiff's close so much as the custom would which was held to be valid in Tyson v. Smith, 6 A. & E. 745 ; 9 A. & E. 406, that, at fairs holden on the waste of a manor, every liege subject exercising the trade of a victualler might enter, at the time of the fairs, and erect a booth, and continue the same a reasonable time after the fairs, for the more convenient carrying on his calling.
As to customary rights claimed by reason of inhabitancy, the distinction has always been between a mere easement and a profit à prendre. A custom for all the inhabitants of a vill to dance on a particular close at all times of the year, at their free will, for their recreation, has been held good, this being a mere easement, Abbot v. Weekly, 1 Lev. 176; and we held, last term, that, to a declaration for breaking and entering the plaintif's close and taking his fish, a custom pleaded for all the inhabitants of the parish to angle and catch fish in the locus in quo was bad, as this was a profit à prendre, and might lead to the destruction of the subject-matter to which the alleged custom applied.?
For these reasons we think that in the present case the plea to the first count is sufficient.
There is a second count in the declaration, very informally drawn, which, when examined, appears to be likewise a count in trespass quare clausum fregit; and the plea to it is substantially the same as that pleaded to the first count. We are therefore of opinion that upon the whole record there must be judgment for the defendants.
Judgment for the defendants. Unthank, for the plaintiff. Hugh Hill, contra.
i Bland v. Lipscombe, November 14, 1854. On demurrer to the plea justifying a trespass under the right, claimed by custom. Honyman, for the plaintiff ; Joseph Brown, for the defendant.
LORD CAMPBELL, C. J. We must act upon that salutary law which distinguishes between a mere easement and the right to take a profit. It is a good custom for all the inhabitants of a parish to dance in a particular spot, or the like ; but a custom to take as a profit what is valuable would be very ininrious to the owner, and of but little benefit to the inhabitants, and is bad. Such being the settled law, we are to apply it to this case. It is clear to me that the custom claimed on this plea is to angle for, catch, and carry away the fish ; but, supposing it were limited, as Mr. Brown argues, to a claim to angle for and catch the fish, without claiming a right to carry them away, I think it would be equally destructive of the subject-matter and bad.
COLERIDGE and WIGHTMAN, JJ., concurred. Judgment for plaintiff. — REP.
boutheast by lands in in the county and destrored
BAILEY v. STEPHENS.
COMMON PLEAS. 1862.
[Reported 12 C. B. N. S. 91.) The first count of the declaration stated that the defendant, on the 1st of November, 1861, and on divers other days and times between that day and the commencement of the suit, broke and entered a certain close of land of the plaintiff called Short Cliffe Wood, enclosed by a hedge-fence, and bounded on the northwest by other lands of the plaintiff, and on the southeast by lands in the occupation of one James Emery, situate in the parish of Blagdon, in the county of Somerset ; and that the defendant then felled, cut down, prostrated, and destroyed two trees of the plaintiff in the said close called Short Cliffe Wood, there then standing and growing, and took and carried away the same and converted and disposed thereof to his own use.
There was also a count for money lent, money paid, money had and received, and money found due upon accounts stated.
The defendants pleaded, — first (to the first count) not guilty ; secondly, that the said close and trees were not respectively the close and trees of the plaintiff.
Third plea, — that at the time of the alleged trespass, William York was seised in his demesne as of fee of and in a certain close called Bloody Field, immediately adjoining the said close of the plaintiff, and that the said William York and all those whose estate he had, 8 d his and their tenants, had from time whereof the memory of man wunneth not to the contrary enjoyed the right, at their free will and pleasure, to enter by themselves and their servants upon a part or strip, to wità lugfall of the said close of the plaintiff, adjoining the said close of the said William York, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to his and their own use the trees and wood growing and being on the said strip or lugfall, as to the said close of the said William York appertaining; and that the said William York before the alleged trespass demised the said Bloody Field, with its appurtenances, to James Emery, for a term of years not yet expired, who entered into possession of the same, and was hefore and at the time of the alleged trespass in possession thereof under the said demise as tenant thereof to the said William York; and that the said trees in the declaration mentioned were growing and being on the said strip or lugfall, and that the alleged trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, on the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said right, and was a user by the said James Emery of the said right.
1 A perch.
Fourth plea, — that the said James Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field, immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for sixty years before this suit enjoyed, as of right, and without interruption, the right to enter at their free will and pleasure, br themselves and their servants, into a part or strip, to wit, a lug: fall, of the said close of the plaintiff, next adjoining the said land of the said James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said land of the said James Emery appertaining ; that the said trees in the declaration mentioned were growing and being on the said strip or lugfall; and that the said trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the said last-named right, and was a user by the said James Emery of the said right.
Fifth plea, – that the said James Emery, at the time of the alleged trespass, was possessed of the said land called Bloody Field immediately adjoining the said close of the plaintiff as aforesaid, and that the occupiers thereof for thirty years before this suit enjoyed as of right and without interruption the right to enter at their free will and pleasure, by themselves and their servants, into a part or strip, to wit, a lugfall, of the said close of the plaintiff, next adjoining the said land of the said James Emery, for the purpose of cutting down and carrying away, and to cut down and carry away and convert to their own use, the trees and wood growing and being in the said strip or lugfall, as to the said land called Bloody Field appertaining; that the said trees in the declaration mentioned were growing and being in the said strip or lugfall ; and that the said alleged trespass was committed by the defendant as the servant and by the authority of the said James Emery, and on his behalf, in the said strip or lugfall, and not elsewhere in the said close of the plaintiff, in the exercise of the last-named right, and as a 'user by the said James Emery of the said right.
Sixth plea, — that, at the time of the alleged trespass, the said William York was seised in his demesne as of fee of and in the said close of land called Bloody Field, immediately adjoining the said close of the plaintiff as aforesaid, and long before the time of the alleged trespass. by a deed made between the then owner of the said close now of the plaintiff, and which said owner was then seised thereof in fee, and the then owner of the said land called Bloody Field, who was then seised in fee of the said last-named land, and whose estate therein the said William York at the time of the said alleged trespass had (but which deed had been lost or destrored by accident), the said then owner of the close now of the plaintiff granted to the said then owner of the said land called Bloody Field, his heirs and assigns, the right for himself and themselves, and his and their tenants, occupiers of the