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8 Q. B. D. 403 ; Tulk v. Moxhay, 2 Phillips, 774. But, as the deed was recorded, it does not matter whether the plaintiff's case is discussed on this footing, or on that of easement, if there is any difference so far as the present point is concerned.

The question remains, whether, even if we make the further assumption that the covenant was valid as a contract between the parties, it is of a kind which the law permits to be attached to land in such a sense as to restrict the use of one parcel in all hands for the benefit of whoever may hold the other, whatever the principle invoked. For equity will no more enforce every restriction that can be devised, than the 'common law will recognize as creating an easement every grant purporting to limit the use of land in favor of other land. The principle of policy applied to affirmative covenants applies also to negative ones. They must “touch or concern,” or “ extend to the support of the thing" conveyed. 5 Rep. 16 a, 24 b. They must be “ for the benefit of the estate.” Cockson v. Cock, ubi supra. Or, as it is said more broadly, new and unusual incidents cannot be attached to land, by way either of benefit or of burden. Keppell v. Bailey, 2 Myl. & K. 517, 535; Ackroyd v. Smith, 10 C. B. 164; Hill v. Tupper, 2 H. & C. 121.

The covenant under consideration, as it stands on the report, falls outside the limits of this rule, even in the narrower form. In what way does it extend to the support of the plaintiff's quarry? It does not make the use or occupation of it more convenient. It does not in any way affect the use or occupation; it simply tends indirectly to increase its value, by excluding a competitor from the market for its products. If it be asked what is the difference in principle between an easement to have land unbuilt upon, such as was recognized in Brooks v. Reynolds, 106 Mass. 31, and an easement to have a quarry left unopened, the answer is, that, whether a difference of degree or of kind, the aistinction is plain between a grant or covenant that looks to direct pbysical advantage in the occupation of the dominant estate, such as light and air, and one which only concerns it in the indirect way which we have mentioned. The scope of the covenant and the circumstances show that it is not directed to the quiet enjoyment of the dominant land.

Again, this covenant illustrates the further meaning of the rule against unusual incidents. If it is of a nature to be attached to land, as the plaintiff contends, it creates an easement of monopoly, - an easement not to be competed with, — and in that interest alone a right to prohibit an owner from exercising the usual incidents of property. It is true that a man could accomplish the same results by buying the whole land, and regulating production. But it does not follow, because you can do a thing in one way, that you can do it in all; and we think that, if this covenant were regarded as one which bound all subsequent owners of the land to keep its products out of commerce, there would be much greater difficulty in sustaining its validity than if it should be treated as merely personal in its burden. Whether the latter is its true construction, as well as its only legal operation, and whether, so construed, it is or is not valid, are matters on which we express no opinion. See further Brewer v. Marshall, 4 C. E: Green, 537; Taylor v. Owen, 2 Blackf. 301 ; Thomas v. Hayward, L. R. 4 Ex. 311.

Bill dismissed. 1 J. G. Dunning, for the plaintiff. C. L. Long, for the defendant.

1 Hodge v. Sloan, 107 N. Y. 244, is contra.

CHAPTER V.

PUBLIC RIGHTS.

SECTION 1.

ON PUBLIC WATERS.

A. Sea.

BAGOTT v. ORR.
Common PLEAS. 1801.

[Reported 2 B. & P. 472.] TRESPASS. The 1st count was for breaking and entering the plain. tiff's closes, called the Foot-Muscle-Skear, the Great-Out-Muscle-Skear, and the Sea-Shore, in the parish of Keysham, and plaintiff's shell-fish and shells there finding, catching, taking, and carrying away and converting and disposing thereof to defendant's own use. The 2d count was for breaking and entering the same closes, and with defendant's feet and the feet of his servants in walking, treading up, trampling upon, subverting and spoiling plaintiff's soil, earth and sand, and with the feet of cattle and with the wheels of carriages and the keels of boats treading up, trampling, &c., and plaintiff's shell-fish and shells, breaking, crushing and destroying, and with spades, shovels, mattocks, pickaxes and other instruments, digging and making holes and pits, and turning up, &c. plaintiff's earth, soil, and sand, and digging up, raising up, and getting up divers large quantities of plaintiff's shell-fish and shells, and carrying away the same and converting and disposing thereof to defendant's own use. There were several other counts for breaking and entering plaintiff's several fishery and his free fishery, on which issues in fact were joined.

The defendant pleaded, 1st, the general issue. 2dly, As to the trespasses mentioned in the two first counts that the closes therein severally mentioned were the same, “ and that the said closes in which, &c. at the said several times when, &c. were and still are and from time immemorial have been part and parcel of a certain arm of the sea, in which every subject of this realm at the said several times when, &c. of right had, and of right ought to have had and now hath, and of right ought to have the liberty and privilege of fishing and catching, digging for, raising, getting, taking and carrying away shell-fish and shells there, therefore defendant being a subject of this realm at the said several times when, &c. entered into the said closes in which, &c. so being part and parcel of the said arm of the sea to fish therein and to catch, dig for, raise, get, take, and carry away the shell-fish and shells there, and did then and there fish, and caught, took, and carried away the said shell-fish and shells in the first count mentioned, and also dug up, raised up, and got up, took and carried away the said other shell-fish and shells in the second count lastly mentioned, as it was lawful for him to do, and for the digging up and carrying away of the said shell-fish, he entered the said closes in which, &c. by himself and with other persons, and with the said cattle, carts, wagons, and other carriages, and the said boats, lighters, and other vessels, the same being reasonable, proper, and necessary in that behalf, and in so doing he necessarily and unavoidably with his feet and the feet of those other persons in walking a little trod up, trampled upon, subverted and spoiled the soil, earth, and sand in the second count mentioned, and with the feet of the said cattle, and with the wheels of the said carts, wagons, and other carriages, and with the keels of the said boats, lighters, and other vessels a little trod up, trampled upon, tore up, and subverted and spoiled other the soil of plaintiff's last-mentioned closes, and the said shell-fish and shells in the second count first mentioned necessarily and unavoidably a little broke, crushed, and destroyed, and with the said spades, shovels, mattocks, pickaxes, and other instruments, the same being useful, proper, and necessary in that behalf, and in digging up, raising, and getting the said shell-fish and shells in the second count lastly mentioned, necessarily and unavoidably dug and made the said holes and pits in plaintiff's said closes, and necessarily and unavoidably with the spades, shovels, mattocks, pickaxes, and other instruments dug up, turned up, subverted, and spoiled a little of the earth, soil, and sand in the said closes, doing as little damage on that occasion as he could, which are the same, &c. whereof, &c. And this, &c. wherefore, &c."

Upon this the plaintiff new assigned, alleging that defendant on the days in the first count mentioned broke and entered plaintiff's Closes in the first count mentioned, “ being certain closes lying within the flux and reflux of the tides of the sea in plaintiff's manor of Kersham, and the said shell-fish and shells there then found, caught, took, and carried away and converted and disposed thereof to his own use, when the same closes in which, &c. were left dry and were not covered with water." And also that defendant on the days and in the manner in the second count mentioned broke and entered plaintiff's closes, “ being certain closes lying within the flux and reflux of the tides of the sea within plaintiff's said manor of Keysham, and with his feet, &c. trod up, &c. the said earth, soil, and sand, in the second count mentioned, and with the feet of the said cattle in that count mentioned, and with the wheels of the said carts, &c. and with the keels of the said boats, &c. trod up the said other soil in plaintiff's last-mentioned closes in the said second count mentioned, and plaintiff's said other shell-fish and shells

in the second count mentioned, broke, crushed, &c. and with spades, &c. dug and made holes, &c. and raised up and got up the said shellfish and shells, &c. and took and carried away the same, and converted and disposed thereof, &c. when the last-mentioned closes in which, &c. were left dry and were not covered with water, as plaintiff hath in the first and second counts of the said declaration complained against him, which several trespasses so above new assigned are other and different trespasses, &c. Wherefore, &c.”

To the new assignment the defendant pleaded, 1st, the general issue; 2dly, “ that the said closes first above newly assigned, and the several closes secondly above newly assigned are, and at the said several times, &c. were the same closes and not other or different closes, and are and at those times when, &c. were certain rocks and sands of the sea, lying within the flux and reflux of the tides of the sea ; and that the said shellfish and shells in the said closes in which, &c. were certain shell-fish and fish-shells, which at the said several times when, &c. were in and upon the said rocks and sands of the sea, and which but a little before the said times when, &c. were by the ebbing of the tides of the sea left there in and upon the said closes in which, &c.; and that in the said closes in the said declaration mentioned, every subject of this realm at the said several times when, &c. of right had and of right ought to have had, and now hath and of right ought to have the liberty and privilege of getting, taking, and carrying away the shell-fish and fish-shells left by the said ebbing of the tides of the sea in and upon the said closes, in which, &c. wherefore the defendant being a subject of this realm at the said several times when, &c. entered into the said closes in which, &c. to get, take, and carry away the shell-fish and fish-shells left by the ebbing of the tides of the sea in and upon the said closes in which, &c. and then and there got, took, and carried away the said shell-fish and shells in the said first count mentioned, and also got, and for that purpose with spades, shovels, mattocks, pickaxes, and other instruments necessarily dug up and raised up, and took and carried away the other shell-fish and shells in the second count lastly mentioned ; and for the getting, taking, and carrying away of the said shell-fish and shells, the defendant at the said times when, &c. entered the said closes in which, &c. as it was lawful for him to do by himself and with other persons, and with the said cattle, carts, wagons, and other carriages, and the said boats, lighters, and other vessels, the same being reasonable and proper and necessary in that behalf, and in so doing he necessarily and unavoidably with his feet and the feet of those other persons in walking a little trod up, trampled, subverted, and spoiled the soil, earth, and sand in the said second count mentioned, and with the feet of the cattle and with the wheels of the said carts, wagons, and other carriages, and with the keels of the said boats, lighters, and other vessels, a little trod up, trampled upon, tore up, subverted, and spoiled other the said soil of the said last-mentioned closes of the plaintiff, and the shell-fish and shells in the second count first mentioned, necessarily and unavoidably a little

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