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the custom is void or not. It is not void as being against law; and, if alleged to be void because inconvenient in a high degree in its enjoyment, and therefore unreasonable, they must look to the probabilities of the case, and be satisfied that the inconvenience is real, general, and extensive, before they hold a custom bad upon that ground, which a jury have found to exist, and to have been acted upon from beyond the time of legal memory.
As to the objection, that this is a bad custom as against the owner of the soil ; that all the authorities confine a claim under a custom to matters of easement only, whereas this is a matter of profit in alieno solo, inasmuch as the soil must be disturbed by the erection of the stall: admitting this to be the case, which is left extremely doubtful on the pleadings in this case, yet the distinction between this custom and others to which reference was made is, that it gives a certain profit to the owner of the soil for the use of the same; and whether that is a full compensation or not, is not the question. At the early time at which this custom originated, it may have been a profit to the lord, and at all events it may have been an object to bim with respect to the profits of his fair to give encouragement to those who would erect booths and stalls for the entertainment of strangers coming to the fair. It is clear that a prescription for a certain toll by way of stallage is good, notwithstanding toll and stallage are different things; as was held in the case of Bennington v. Taylor, 2 Lutw. 1517, above referred to; and, if the lord of the fair can justify distraining for such toll under a prescription, there seems no reason why the person who uses the stall on payment of the toll, and who cannot prescribe either in a que estate or in himself and his ancestors, being a stranger, should not justify under such a custom as the present.
The custom, in fact, comes at last to an agreement, wbich has been evidenced by such repeated acts of assent on both sides from the earliest times, beginning before time of memory and continuing down to our own times, that it has become the law of the particular place.
We therefore think the custom set out on the pleadings is a good custom, and affirm the judgment of Queen's Bench.
ACKERMAN v. SHELP.
(Reported 3 Halst. 125.) This was an action of trespass brought by Ackerman against Shelp for entering his close and pulling down and removing his fence.
The defendant pleaded the general issue, and gave notice with it of
1 See Gray, Perp. SS 577, 580.
the special matter which he intended to offer in evidence. The notices were in substance as follows: 1
4. That there is, and from time whereof the memory of man runneth not to the contrary hath been, a laudable custom used and approved of by all the inhabitants of the town of Aquackanunck to pass and repass into and over the said close to the said Passaic River to water.
6. That there was, and from time iinmemorial had been, a custom for all persons taking lumber to Aquackanunck for market, to store it on the locus in quo until it should be carried aboard of vessels for trans portation to market.
7. That John Van Wagoner is seised in his demesne as of fee of and in a certain messuage with the appurtenances adjoining the said close, and that the said John and all those whose estate he hath, from the time whereof the memory of man runneth not to the contrary, have been used and accustomed to have a right of way over and upon the said close, for himself and his tenants and cattle, &c., and that the det fendant is tenant of the said messuage with the appurtenances, &c.
There was also another action between the same parties for a trespass upon the same premises to which the defendant had pleaded the general issue and given notices. The second and fifth notices in this second action were the same in substance as the sixth and seventh notices above stated.
Van Arsdale, for the plaintiff, now moved to strike out the notices. Frelinghuysen and Hornblower, contra.
FORD, J. The fourth notice alleges a custom in Aquackanunck for the inhabitants of the town to take their cattle over the locus in quo to water; the sixth alleges a custom for all persons taking lumber to Aquackanunck for market, to store it on the locus in quo till it shall be carried on board of vessels for transportation to market; and the seventh alleges a prescription in the que estate for a right of way to water over the locus in quo.
I will not consume much time in remarking that a right to store lumber, is a profit in another's soil that must be prescribed for in a que estate and cannot be claimed by custom (6 Co. 59 b; 4 T. Rep. 718); because I. place my objection to these three notices on another ground, which is that “ so much of the common law” as respects rights accruing by custom and prescription has not been “heretofore practised " in New Jersey (Cons. of N. J. § 22), and these doctrines could not now be introduced without doubtful if not dangerous consequences. The country could not have progressed till this time without a single instance of a right being established on either of these grounds in our courts of justice, if these doctrines had been received here with the common law._ "Time of memory ’hath been long ago ascertained by law to commence from the beginning of the reign of Richard the First. and any custom may be destroyed by evidence of its non-existence in any part of the long period from that time to the present” (2 Bl. Com. 31). This is sufficient to destroy all common law customs in New Jersey, for the country was not discovered by civilized inhabitants, and civil rights could not consequently have been in use, till more than three hundred years after the beginning of the reign of Richard the First. In most towns standing on navigable water are many uninclosed water lots not applicable to agriculture nor wanted for commercial purposes as yet, over which the inhabitants have been never restrained from passing or driving their cattle to water; and if custom (which is a local law founded on universal usage, and can no more be released than any other law) is to prevail according to the common law notion of it, these lots must lie open forever to the surprise of unsuspecting owners, and to the curtailing commerce, in its more advanced state, of the accommodation of docks and wharves, when perhaps a tenth part of the lots now open would be all sufficient as watering places : a principle of such extensive operation ought not to be strained beyond the limits assigned to it in law. If public convenience requires highways to church, school, mill, market or water, they are obtainable in a much more direct and rational manner under the Statute than by way of immemorial usage and custom. I must not be understood to mean that the uninterrupted enjoyment of an easement in another person's soil for twenty or thirty years, or perhaps a less period of time, will not be evidence for a jury to presume a grant or dedication of such easement, after duly considering such explanations, reasons, and opposing circumstances as the case may afford. Usage beyond time of legal memory and usage within memory depend on principles and evidence totally distinct from each other. If the defendant relies on usage for a definite period of time, he ought to amend his notice so as to correspond with the evidence he means to offer ; it can answer no purpose of justice or candor to give notice of one thing and prove another. I am of opinion, therefore as to these three notices, that the rights therein set up cannot be maintained in the form nor on the principle therein stated, and that they ought to he stricken out.
i The first, second, third, and fifth notices are omitted.
2 Only that part of the opinion is printed which deals with the fourth, sixth, and seventh notices in the first action, and the second and fifth notices in the second action.
In a second action between the parties, wherein the defendant sets up in his second notice a custom by immemorial usage, and in the fifth a prescription in the que estute, I need only observe that they ought to be stricken out for the reasons before mentioned.?
i Contra, Nudd v. Hobbs, 17 N. H. 524 ; Knowles v. Dow, 22 N. H. 387. See Gray, Perp. 88 585, 586.
EASEMENTS IN GROSS.
ACKROYD v. SMITH.
(Reported 10 C. B. 164.] CRESSWELL, J.,' delivered the judgment of the court.?
This was an action of trespass, for breaking and entering a close of the plaintiff, in the parish of Bradford, in the county on York, describ: ing it by abuttals, and with feet in walking, and with horses, carts, and carriages, dainaging and spoiling the grass, &c.
The defendant pleaded — amongst other pleas — that, long before and at the time of committing the alleged trespasses in the declaration mentioned, and at the time of making the release and grant thereinafter mentioned, there was, and thenceforth continually had been, and still was, and at the several times, &c., was, in and upon the said close in which, &c., a certain road, running between a certain other road called " The Bradford and Thornton turnpike-road,” and a certain lane called 6 Legram's Lane ;” that, long before and at the time of making the indenture of release and grant thereinafter mentioned to wit, on, &c., one Ellis Cunliffe Lister was seised in his demesne as of fee, as well of the soil of the road in that plea first mentioned, as of and in the close in which, &c. ; that, before the time of committing the trespasses, the said Ellis Cunliffe Lister was also seised in his demesne as of fee of and in the lands, tenements, hereditaments, and premises in the thereinafter next mentioned indenture of release and grant mentioned, and therein and thereby released and conveyed to John Smith ; that, afterwards, and before any of the several times of committing the several trespasses in the declaration mentioned, he, the said Ellis Cunliffe Lister, being so seised, on, &c., by lease and release conveyed to John Smith and his heirs, to the use of him, his heirs and assigns forever, a certain close and plots or parcels of land ; that the said Ellis Cunliffe Lister did, in and by the said last-mentioned indenture, grant to the said John Smith and his heirs and assigns, that he and they respectively, being owners and occupiers for the time being of the said close, &c., so released as aforesaid, and all other persons having occasion to
1 The opinion only is given.
? The argument took place on the first of June last, before MAULE, J., CRESSWELL, J., and TALFOURD, J. – REP.
resort thereto, should have the right and privilege of passing and repassing, with or without horses, cattle, carts, and carriages, for all purposes, in, over, along, and through a certain road running between the Bradford and Thornton turnpike-road and Legram's Lane, or in, over, and through some other road in the same direction, to be formed by, and at the expense of, the plaintiff, his heirs or assigns, such other road nevertheless passing the southeast corner of the warehouse of the plaintiff, — be the said John Smith, his breirs and assigns, paying to the plaintiff, his heirs and assigns, a proportionate part of the expense of repairing the said road, according to the use thereof by him or them, not exceeding the actual damage done to the road by the wear and tear thereof by the said John Smith, his heirs and assigns. The plea then deduced a title in Samuel Smith to a life-estate in one moiety of the said lands, tenements, hereditaments, and appurtenances, and in Thomas Smith to an estate in fee in the other moiety thereof, and alleged possession before and at the times when, &c. and proceeded, " and the defendants, being so seised and owners as aforesaid, and being in and having such possession and occupation as aforesaid, and having occasion, for their own purposes, to use the right and privilege in that behalf granted and conveyed in and by the indenture of release and grant in this plea first mentioned did, on foot, and with their horses, &c., at the said several times, &c., pass and re-pass, for the purposes of them, the defendants, in, over, and along, and through the road in that plea first mentioned, so being as aforesaid in and upon the said close in which, &c., as they lawfully might.”
The plaintiff craved oyer of the deed, — which was between the plaintiff of the first part, Richard Tolson of the second part, Ellis Cunliffe Lister (to whom the plaintiff had mortgaged the premises of the third part, Samuel Smith and Thomas Smith of the fourth part, and John Smith of the fifth part, — the plaintiff, as well as Lister, being made a conveying and granting party: [His Lordship read the material parts of the deed.'] The plaintiff then demurred, assigning for causes,
i The substance of this indenture, so far as material to the case, was as follows: It recited that the land conveyed had been settled on Robert Stables Ackroyd, the plaintiff, for life, remainder to Richard Tolson, during the life of the plaintiff, in trust for the plain. tiff, remainder to the plaintiff in fee ; that the land had been subsequently mortgaged to Ellis Cunliffe Lister ; that the plaintiff and Lister had entered into a contract to convey the land to Samuel and Thomas Smith, and that these latter had assigned to John Smith their right to a conveyance. Then the indenture witnessed that the plaintiff, Tolson, and Lister, at the request of Samuel and Thomas Smith, conveyed to John Smith and his heirs certain described parcels of land. “Together with all ways, paths, passages, particularly the right and privilege to and for the owners and occupiers, for the time being, of the said close, pieces, or parcels of land, or any of them, and all persons hav. ing occasion to resort thereto, of passing and re-passing, with or without horses, cattle, carts, and carriages, for all purposes, in, over, along, and through a certain road run. ning between the Bradford and Thornton turnpike-road and Legram's Lane, or in, over, and through some other road in the same direction, to be formed by and at the expense of the said Robert Stables Ackroyd, his heirs or assigns, — such other road, nevertheless, passing the southeast corner of the said warehouse of the said Robert