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and 3d of September, 1841, the said John Proud bargained and sold the said coal, mines of coal, veins of coal, and premises to one William Richardson, and the defendants then justified the trespasses as the servants of Richardson.

The third plea was framed upon the Stat. 2 & 3 Will. 4, c. 71, § 2, and alleged, that for the full period of thirty years next before the commencement of this suit, the said John Proud, deceased, and his ancestors, whose heir he was, and the said William Richardson, that is to say, the said John Proud and his ancestors, whose heir he was, before and up to the time of making the indenture first hereinafter mentioned, and the said William Richardson from the time of making the same indenture, have actually taken and enjoyed, as of right and without interruption, all the coals and veins of coal, and mines of coal, in and under the said closes and parcels of land, and have during all that time, as of right and without interruption, at all times of the year, entered into and upon the said closes and parcels of land in which, &c, and then cut, dug into, and excavated the same for the purpose of searching for, mining, and winning the coals in and under the same, and made adits, shafts, and entrances into the said mines of coal and veins of coal in and under the same closes and parcels of land, and done all necessary acts therein and thereon for the purpose aforesaid,

&c.

Special demurrer to each of these pleas, and joinder in demurrer. The points marked for argument in the margin were as follows: As to the second plea : that all the coals, veins of coal, and mines of coal in and under the said closes in which, &c., and full and free liberty to enter upon the said closes in which, &c., to dig, &c., the same, as claimed by the defendants, are corporeal hereditaments, a title to which cannot be made by prescription. As to the third plea: that the defendants claim a corporeal hereditament, and that to such a claim the Stat. 2 & 3 Will. 4, c. 71, does not apply.

W. H. Watson, in support of the demurrer.
Martin, contra.

LORD ABINGER, C. B. I think this is clearly a prescription to land. A vein of coal is land, unless distinguished from the land by the deed of conveyance. I have little doubt that if Mr. Martin were to search the Year-Books, he would find cases to show that such a claim is contrary to law. The defendants may amend on payment of costs.

Parke, B. This is not a claim of a prescriptive right to take coal in the plaintiff's close, but a prescription for all the strata and seams of coal lying under it, that is, for a part of the soil itself, and not for the right to get the coal

, which would be the subject of a grant. Possibly the defendants may be able to amend, by pleading a seisin in fee in the strata of coal, or by prescribing for the right to take coals in the plaintits close. With respect to the last argument urged on behalf of the defendants, according to that a man might set up a prescriptive right

to a farm and lands, together with a right of way over an adjoining close.

ALDERSON, B., and GURNEY, B., concurred.
Leave to the defendants to amend on payment of costs, otherwise,

Judgment for the plaintiff.

RACE V. WARD.

QUEEN's. Bench. 1855.

(Reported 4 E. & B. 702.) LORD CAMPBELL, C. J.,now delivered the judgment of the court.

The first count of the declaration is for breaking and entering the plaintiff's close in the township of Horbury, and committing various trespasses therein. The defendants justify under an immemorial custom in the said township for all the inhabitants for the time being in the said township to have the liberty and privilege to have and take water from a certain well or spring of water in the said close in which, &c., and to carry the same to their respective dwelling-houses in the said township, to be used and consumed therein for domestic purposes.

The plaintiff demurs: and it has been argued before us that the plea is bad, because it claims a right for all the inhabitants of the township to take a profit à prendre in alieno solo.

But we are of opinion that no such right is claimed by the alleged custom. The action is not for taking water, the property of the plaintiff; and no such action could be supported unless the water were contained in a cistern or some vessel in which he had placed it for his private use. The defendants have to answer the charge of having unlawfully broken and entered the plaintiff's close, and trampled and injured his grass growing there, &c. In doing so they certainly claim a right by immemorial custom, in all the inhabitants of the township, to take water from a spring issuing from the close, and to carry it to their dwelling-houses for domestic purposes; but this claim is made with the view of excusing the alleged trespasses in entering the close and injuring the grass, &c.

The water which they claim a right to take is not the produce of the plaintiff's close; it is not his property ; it is not the subject of property. Blackstone, following other elementary writers, classes water with the elements of light and air (vol. 2, p. 14). Afterwards, having stated that a man cannot bring an action to recover possession of a pool or other piece of water, either calculating its capacity, as for so many cubical yards, or by superficial measure for twenty acres of water, he

i So Caldwell v. Fulton, 31 Pa. 475 ; Massot v. Moses, 3 So. Car. 168, accord. ? The opinion only is here printed; it states the pleadings sufficiently.

gives the reason: "For water is a movable, wandering thing, and must of necessity continue common by the law of nature." Ib. p. 18.

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 bothing 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 be 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 dis

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 inhabitancy in a particular district is evidently described and intended.

v. Wildman, 1 Ld. Raym. 407, we find certain obiter this subject which are entitled to some weight.

6. 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.

trict

In Weekly dicta

upon

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.

? "Ceo ad este admitte adire que touts les piscars en un tiel ewe,” &c., “sans ni e le quel les piscars sont inhabitants en ascun ville

, per que a pluis fort le preseriptið ferra bon en le case al barre," which was that of a right laid in all the citizens and in

REP.

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 inessuage 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, bis 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. Harker, 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. & F. 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 plaintiff'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.

? 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 Browon, for the defendant. Lord Campbell, C. J. We must act upon that salutary law which distinguishes

a mere easernent 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 injurious 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 plaintif. – REP.

lietween

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