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them a perpetual servitude, for the purpose of drainage, for the benefit of upper proprietors. We do not intend to say that there may not be cases which, owing to special conditions circumstances, should be exceptions to the general rule declared. But this case is within it, and we think the judgment below should be affirmed. All concur.
i On the distinction between a watercourse and surface water, see Earl v. De Hart, 1 Beasl. 280 ; Bowlsby v. Speer, 2 Vroom, 351 ; Gibbs v. Williams, 25 Kans. 214 ; Eulrich v. Richter, 37 Wis. 226 ; s. C. 41 Wis. 318. Cf. Hebron Road Co. v. Harvey, 90 Ind. 192.
On the rights and duties of one who fronts on the sea to guard against its encroachments, see The King v. Pagham Commissioners, 8 B. & C. 355 ; Hudson v. Tabor, 2 Q. B. Div. 290 ; A. G. v. Tomline, 14 Ch. Div. 58.
ABBOT v. WEEKLY.
KING's Bench. 1665.
(Reported 1 Lev. 176.] TRESPASS for breaking his close; the defendant prescribes, That all the inhabitants of the vill, time out of memory, &c., had used to dance there at all times of the year at their free will, for their recreation, and so justifies to dance there : issue was on the prescription, and a verdict for the defendant, and to save his costs the plaintiff moved in arrest of judgment, that this prescription to dance in the freehold of another, and spoil his grass, was void, especially as it is laid, viz. at all times of the year, and not at seasonable times; and that 't was also ill laid in the inhabitants, who although they may prescribe in easements, as 6 Co. Gateward's' Case, and some other books are, yet they ought to be easements of necessity, as ways to a church, &c., and not for pleasure only, as this case is. Secondly, If it be good, it ought to have been laid by way of custom in the town, and not by prescription in the persons; and a case was cited, where 't was so adjudged but by the court this is a good custom, and it is necessary for inhabitants to have their recreation. And as to the second, that though perhaps it had been ill on a demurrer, yet issue being taken thereon, and found for the defendant, 't is good; and judgment was given for the defendant.1
1 See Fitch v. Rawling, 2 H. Bl. 393 ; Mounsey v. Ismay, 1 H. & C. 729 ; 3 H. & C. 486 ; Hall v. Nottingham, 1 Ex. D. 1; Gray, Perp. 98 572–576.
on a demurrer;
TYSON v. SMITH.
(Reported 9 A. & E. 406.) ERROR to the Court of Queen's Bench in an action of trespass quare clausum, in which judgment bad been entered for the defendant. The case was argued before TINDAL, C. J., BOSANQUET, COLTMAN, and VAUGHAN, JJ., PARKE, ALDERSON, and GURNEY, BB.1
W. H. Watson, for the plaintiff.
In this case, the issues raised on the third and fifth pleas, which go to the whole action, have been found for the defendant below, and judgment has been given thereon accordingly in his favor; and this writ of error is brought to reverse such judgment, on the ground that the custom set forth in those pleas, and upon which the whole of the defendant's justification rests, is unreasonable, and therefore bad in law.
The third plea (and it will be unnecessary to give a separate consideration to the fifth, as the same objections apply equally to both) begins by stating the existence of a fair by prescription to be held on some part of the commons and waste grounds of the manor of Westward, in the county of Cumberland, to be appointed for that purpose by the lord of the manor, on Monday after the feast of Pentecost in every year, and afterwards on each alternate Monday until the feast of All Souls ; and then alleges a custom within the said manor, that every liege subject of the realm exercising the trade or calling of a victualler, at a reasonable time before the first day of the fair, has been used and accustomed, and of right ought, to enter upon that part of the commons or waste ground which had been set out for holding of the fair, and, for the more conveniently carrying on his trade, to erect a booth and stall, and to put and place posts and tables there, and to continue the same so erected, put, and placed until a reasonable time after the last of the said fairs so holden, yielding and paying therefor to the lord of the manor for the time being the sum of 2d. when lawfully demanded. The plea then proceeds to justify the trespasses alleged to have been committed, under this custom. The existence of the prescriptive right to the fair is admitted upon the pleadings; and nothing is traversed but the existence of the custom, which custom is found by the jury. And the question before us is, whether the custom is a good custom, or unreasonable, and therefore void in law.
It is an acknowledged principle that, to give validity to a custom,
1 The statement of the case is omitted; the pleadings and facts sufficiently appear in the opinion.
which has been well described to be an usage, which obtains the force of law, and is, in truth, the binding law, within a particular district or at a particular place, of the persons and things which it concerns (see Davies's Reports, 31, 32), – it must be certain, reasonable in itself, commencing from time immemorial, and continued without interruption. Now, of these several requisites to the validity of a custom, the only one which is brought in question on the present occasion is, whether the custom is reasonable or not; and this is a question which it belongs to the judges of the land to determine.
The question, what customs are reasonable and what are not, is one upon which the books are not altogether silent. A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law, for Consuetudo ex certa causa rationabili usitata privat communem legem (Co. Litt. 113 a), as the custom of gavelkind and borough English, which are directly contrary to the law of descent, or, again, the custom of Kent, which is contrary to the law of escheats. Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the Commonwealth, as the custom to turn the plough upon the headland of another, in favor of husbandry, or to dry nets on the land of another, in favor of fishing and for the benefit of navigation.
But, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and beneficial only to some particular person, is repugnant to the law of reason; for it could not have had a reasonable commencement: as a custom set up in a manor, on the part of the lord, that the commoner cannot turn in his cattle until the lord has put in his own, is clearly bad; for it is injurious to the multitude, and beneficial only to the lord. (Yearb. Trin. 2 H. 4, fol. 24 B. pl. 20.) So a custom that the lord of the manor shall have £3 for every pound breach of any stranger (21 H. 4); or that the lord of the manor may detain a distress taken upon his demesnes, until fine be made for the damage, at the lord's will (Litt. § 212). In all these, and many other instances of similar customs which are to be found in the books, the customs themselves are held to be void, on the ground of their having had no reasonable commencement, but as being founded in wrong and usurpation, and not on the voluntary consent of the people to whom they relate.
But the reasonableness of the custom in the present case is not impeached on any ground of this nature. The present custom is, in fact, in favor of the many; and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor. The grounds upon which this custom is contended to be void on the present occasion appear to be reducible to three.
First, that it is so general that it ceases to be a custom, or pleadable
1 This reference is given in Le Case de Tanistry, Dav. 33 a. The placitum meant is probably Mich. 21 H. 7, fol. 40 A., pl. 61. See 7 Vin. Abr. 183, Customs, (F) 7, and the references there given. Yearb. Pasch. 21 H. 7, fol. 20 A., pl. 2. — Rep.
as such, but is part of the common law; secondly, that, by reason of its generality and extent, it cannot be carried into execution, and cannot therefore be considered as a reasonable custom; and, lastly, that the right claimed amounts to a profit à prendre out of land, and cannot therefore be claimed as a customary right.
As to the first objection, admitting, for the purpose of argument, that a custom which would comprehend within it all the liege subjects of the Crown would be bad, on the ground of its amounting to the common law, we think the custom before us is not of that description. For in the present custom there are three restrictions which necessarily limit its generality. The parties who claim the benefit of it must be victuallers; they must be victuallers coming to keep the fair; and they must come at the precise period of the year at which the fair is fixed.
Now, under the description of victuallers mentioned in the custom, we cannot consider that very large body of persons to be comprehended who, in ancient times, appear to have been classed under that designation by the Statutes referred to in the argument. But we think the plea must be taken to speak in the language of the time at which it is pleaded ; and, as the only term used is that of a victualler, it must be understood those only are comprehended who are now so termed, that is, persons authorized by law to keep houses of entertainment for the public. This removes the case at once from the application of the case of Fitch v. Rawling, 2 H. Bl. 393, where the custom comprehended all the liege subjects of the Crown being in the parish at any time.
But it is said the number of these victuallers may be so large, and the space occupied by each so great, as that the whole portion of the common set out for the fair may be taken by them in exclusion of the rest. If this argument were to prevail, it is manifest that it would be equally applicable with respect to every particular branch of traders who frequent the fair. The sellers of corn, or of cattle, the persons who deposit their cloth, the dealers in earthen ware, and the like, might with equal show of reason be stated by possibility to become occupiers of the whole ground to the exclusion of the rest. But it is obvious that this is not an argument against the custom being reasonable in its original commencement, or against the prescription for the fair being a reasonable prescription ; it is an objection only as to the mode of exercising the rights so claimed, whether under the custom or the prescription. An inconvenience of this description will provide its own remedy: if it occurs once, it will not be likely to occur again. It is in the bighest degree improbable that it should ever occur at all. A little previous inquiry will at all times prevent its recurrence. And in Bennington v. Taylor, 2 Lutw. 1517, where it was contended that a prescription was uncertain, and therefore void, which claimed toll for a stall, and the land prope et circa stallam, &c., the objection was not allowed; for this, it was said, “shall be ascertained by the common usage of the fair.”
And these are precisely the points of consideration to which the judges must advert, when called upon to determine whether