of the tenant's family; common of turbary and fire-bote for his fuel; *and house-bote, plough-bote, carte-bote, and hedge-bote, for [*97 repairing his house, his instruments of tillage, and the necessary fences of his grounds,'-that is, for a certain and definite purpose." Here, the plea is altogether deficient in this requisite. In the Attor ney-General v. Mathias, 27 Law J., Ch. 761, it was held that a profit à prendre in another man's soil cannot be claimed by custom, however ancient, uniform, and clear the exercise of that custom may be; and that a right to carry away the soil of another, without stint, cannot be claimed by prescription. Byles, J., in delivering the opinion of the Court, there says; "A prescription, to be good, must be both reasonable and certain; Com. Dig. Præscription (E. 3), (E. 4); and this alleged prescription seems to me to be neither. Thus, a claim of a common without stint annexed to a messuage without land is bad: Benson v. Chester, 8 T. R. 396. Lord Coke says,-Co. Litt. 122 a,-that you must not exclude the owner of the soil. And in Clayton v. Corby, 5 Q. B. 415 (E. C. L. R. vol. 48), 2 Gale & D. 174, although a jury had found a thirty years' exercise without interruption, as of right, of a claim by prescription to dig clay in the plaintiff's land for the defendant's brick-kiln, and though the verdict could not be assailed, yet the Court of Queen's Bench gave judgment for the plaintiff non obstante veredicto, on the ground that such a prescription was radically vicious, and incapable of being sustained, for that it was an indefinite claim to take all the clay; in other words to take the whole close. That case rests on the soundest rules of law, and it is an authority expressly in point, showing that the strongest evidence of user could not support this as a prescriptive claim." In Ackroyd v. Smith, 10 C. B. 164 (E. C. L. R. vol. 70), in trespass quare clausum fregit, the defendants justified under a supposed right of way conveyed to them by A. The plea, after stating the conveyance to A. of "a certain close, *and certain plots, pieces, or parcels of land, &c., together [*98 with all ways, &c., particularly the right and privilege to and for the owners and occupiers of the premises conveyed, and all persons having occasion to resort thereto, of passing and repassing, for all purposes, in, over, along, and through a certain road," &c., alleged an assignment by A. to. the defendants of the said lands, tenements, hereditaments, premises, and appurtenances granted by the former deed; and then averred that the trespasses complained of were committed by the defendants, being owners of the said lands, &c., and in the possession and occupation thereof, in using the right of way for their own purposes. The plaintiffs, after setting out the deed upon oyer, demurred specially to the plea, on the grounds that the defendants claimed a more extensive right than that granted by the deed, and that, if the right as claimed was granted by the deed, was not assignable. In delivering the judgment of the Court, Cresswell, J. (p. 187), says: "If the right conferred by the deed set out, was only to use the road in question for purposes connected with the occupation and enjoyment of the land conveyed, it does not justify the acts confessed by the plea. But, if the grant was more ample, and extended to using the road for purposes unconnected with the enjoyment of the land, and this, we think, is the true construction of it,-it becomes necessary to decide whether the assignee of the land and appurte

nances would be entitled to it. In the case of Keppell v. Bailey, 2 Mylne & K. 517, the subject of covenants running with the land was fully considered by Lord Chancellor Brougham; and the leading cases on it are collected in his judgment. He there says (p. 537), 'The covenant (that is, such as will run with the land) must be of such a nature as 'to inhere in the land,' to use the language of some cases; *99] or, 'it must concern *the demised premises, and the mode of occupying them,' as it is laid down in others: 'it must be quodam-modo annexed and appurtenant to them,' as one authority has it; or, as another says, 'it must both concern the thing demised, and tend to support it, and support the reversioner's estate. Now, the privilege or right in question does not inhere in the land, does not concern the premises conveyed or the mode of occupying them: it is not appurte nant to them. A covenant, therefore, that such a right should be enjoyed, would not run with the land. Upon the same principle, it appears to us that such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it: nor can a way appended to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant: Bro. Abr. Graunt, pl. 130.(a) If a way be granted in gross, it is personal only, and cannot be assigned. So, common in gross sans nombre may be granted, but cannot be granted over: per Treby, C. J., in Weekly v. Wildman, 1 Lord Raym. 407. It is not in the power of a vendor to create any rights not connected with the use or enjoyment of the land, and annex them to it: nor can the owner of land render it subject to a new species of burthen, so as to bind it in the hands of an assignee." That goes even further than is necessary for the present purpose. In Co. Litt. 4 b, it is said: "A man seised of divers acres of wood grants to another omnes boscos suos, all his woods; not only the woods growing upon the land passe, but the land itselfe, and by the same name shall be recovered in a præcipe; for, boscus does not onely include the trees, but the land also whereupon they grow. The same law if a man in that case grant *100] omnes boscos suos crescentes, &c., yet *the land itself shall passe, as it hath been adjudged." And see Doe d. Kinglake v. Beviss, 7 C. B. 456, 485 (E. C. L. R. vol. 62).

Prideaux, contrà.(b)--The pleas are based upon a special agreement between the former owners of the respective closes, in derogation of the rights of the owner of the servient tenement. The policy of the law is, to uphold such special agreements, unless there is something in them which is contrary to public policy: and the onus probandi is cast upon the party who relies on an invalidity arising upon that ground. In Cruise's Digest, Vol. III., Title xxxi., Prescription, Ch. 1, § 11, it is said: "A prescription by immemorial usage can in general only be for things which may be created by grant: for, the law allows prescriptions only to supply the loss of a grant. Antient (a) Citing M. 5 H. 7, fo. 7, pl. 15.

(b) The points marked for argument on the part of the defendant were as follows :— "That the pleas demurred to show a good defence respectively; that the rights claimed are not too large, that they may have had a legal origin, that they may lawfully have been the subject of special grant and agreement, may lawfully be claimed by prescription, and are rights of profit or benefit to be taken and enjoyed from land, within the true meaning of the statute 2 & 3 W. 4, c. 71.

grants must often be lost; and it would be hard that no title could be made to things lying in grant, but by showing the grant.(a) Upon immemorial usage, therefore, the law will presume a grant, and a lawful beginning, and allows such usage for a good title: but still it is only to supply the loss of a grant.(b) Therefore, for such things as can have no lawful beginning, nor be created at this day by any manner of grant, or reservation, or deed, that can be supposed, a prescription is not good." In Dowglas v. *Kendal, Cro. Jac. 256, to trespass for taking and carrying away [*101 the plaintiff's thorns, the defendant justified, "because the place where, &c., is an acre, and that he is seised in fee of a messuage and three acres of land in Chippingwarden aforesaid, and that he and all whose estate it was, &c., have used from time to time to cut down and take omnes spinas crescentes upon the said place;" and the justification was sustained. [ERLE, C. J.-The claim was "to expend in the said house, or about the said lands, as pertaining to the said house and lands."] That, though a necessary allegation where the claim is of a right of common, is not so where the party claims the entire right. If a man may prescribe for all the thorns growing upon a particular close, it is difficult to see why he should not also prescribe for timber. In Stanley v. White, 14 East 332, to an action of trespass for cutting down and converting trees, which the defendant justified as growing upon his land and freehold, the plaintiff replied that the trees were his freehold, and not the freehold of the defendant: and this was held to be proved by showing that they grew on a certain woody belt fifteen feet wide, which surrounded the plaintiff's land, but was undivided by any fences from the several closes adjoining, of which it formed part, belonging to different owners; and that from time to time the plaintiff and his ancestors, at their pleasure, cut down for their own use the trees growing within the belt, and that the several owners of the different closes enclosing the belt never felled trees there, though they felled them in other parts of the same closes, and that, when they made sale of their estates, the trees in the belt were never valued by their agents, because they were reputed and considered to belong to the plaintiff and his ancestors, in which the several owners acquiesced. Lord Ellenborough, in giving judgment, said: *"The presumption from the evidence is, that all the land of the belt belonged originally to the same person, and that, when [*102 he granted it out to others, he reserved the right to the trees then growing or thereafter to grow in the soil: and he and those claiming under him prove their right by exercising acts of ownership in cutting and taking away the trees from time to time, as occasion requires, in different parts of the belt. It is evidence of one reserved right in the original grantor, and not of different rights created by different conveyances. The soil of the whole was probably granted out entire in the first instance, reserving the trees; and the original grantee may may have afterwards granted it out in divided portions to different persons. Whatever title is consistent with the established course of enjoyment may be proved by such enjoyment: and here was evidence of a right such as I have stated, and there is no evidence of any ad

(a) Potter". Sir Henry North, 1 Ventr. 387.

(b) Gibson v. Clark, 1 Jac. & W. 159.

C. B. N. S., VOL. XII.—6

verse right." It was then suggested, that, though this might be evidence for the plaintiff of his having an interest in the trees, it was no evidence of a freehold in them, as claimed by him in his replication; that one might have a right to trees as a profit à prendre in another's soil, without having a freehold in the trees; and that it was difficult to say how one could have a freehold in the trees growing in another's soil, and that here the plaintiff did not claim the soil itself. But Lord Ellenborough observed "that the plaintiff may not have claimed the whole that he was entitled to; and that perhaps the right to the land itself might be put in hazard, if the defendant could succeed in showing that the plaintiff could have no freehold interest in the trees apart from the soil. But, even if that were so, perhaps a reservation of the trees then growing or thereafter to grow in the soil might be taken to reserve so much of the soil as was necessary for the growth *103] and sustentation of the trees." *[ERLE, C. J.-The claim there was not like this, a claim by the occupier of adjoining land to go upon another man's freehold to take trees.] In Sir Francis Barrington's Case (Chalke v. Peter), 8 Co. Rep. 136 b, the facts were these-Sir Robert Rich, Lord Rich, was seised of the forest or chace of Hatfield (whereof the place where, &c., was parcel) in fee, and by his deed indented, bearing date the 30th of January, 19 Eliz., for good consideration, granted to Sir Thomas Barrington, Knt., and his heirs, omnes boscos arbores tam manem' subboscos et spinas quam alia genera quorum, cunque ad tunc crescent' stant' et existent,' simul cum omnibus arboribus vocat' timber-trees, boscis, subboscis, et spinis quibuscunque, quæ ad adiquod tempus extunc imposterum forent' crescent', stant', renovant', sive existent' in et super illis partibus forestæ præd', communiter vocat' Bushend quarter, et quarterium vocat' Takely quarter (except the land and soil of the same wood), with liberty to enclose them, and to hold them enclosed for the preservation of the spring of wood, which should be for such time as by the laws and statutes of the realm is appointed and enacted, and not otherwise, absque molestatione seu interruptione of the said Lord Rich, his heirs or assigns, and to exclude the deer and all other cattle out of the wood so enclosed, and to have the herbage and feeding thereof, as any owner of the wood might do by the laws and statutes of this realm, without interruption of the said Lord Rich, his heirs or assigns. It was resolved "that Sir Francis Barrington has an inheritance as profit apprendre in alieno solo, and that the soil remains to the Lord Rich." [BYLES, J.-That was a grant to Sir Francis Barrington and his heirs in gross. ERLE, C. J.-It certainly is an odd sort of estate,-a fee-simple in a profit à prendre!] If a right to cut trees in another man's soil can be granted, these pleas are sustained. *Liford's Case, 11 Co. Rep. 46 b, recognizes this, that, *104] according to the terms of the grant, you may or may not give a fee. Lord Coke says: "This difference may be collected out of Ive's Case, in the fifth part of my Reports, fo. 11. Vide 14 Hen. 8, fo. 1, a, b. If I by deed grant all my trees within my manor of G. to one and his heirs, the grantee shall have an inheritance in them, without any livery and seisin. Vide Sir Francis Barrington's Case, in the 8th part of my Reports, fo. 137. And in a præcipe brought against lessee for life, where the trees are excepted, you need not in

such case except the trees, because no præcipe lies of them, but they shall be recovered by him who has right paramount by the recovery of the land." A grant of all saleable woods growing was held not to pass the soil: Pincomb v. Thomas, Cro. Jac. 524. As to the other point,-in Hoskins v. Robins, 2 Wms. Saund. 323, in replevin, the defendants made cognisance as bailiffs of the lords of the manor of Blisland, as damage feasant: the plaintiff pleaded in bar, that, within the said manor of Blisland, there are, and from time whereof, &c., were, divers customary tenements parcel of the said manor, and demised and demisable by copy of Court roll of the said manor, at the will of the lord, according to the custom of the said manor; and that, within the said manor, there is, and from time whereof, &c., there was, a custom that all the customary tenants of the customary tenements of the said manor "have had, and have used and been accustomed to have, the sole and several pasture in the said places in which, &c., yearly and every year, for the whole year, at their will and pleasure, as belonging to their said customary tenements." After verdict for the plaintiff, it was moved in arrest of judgment,-First, that it is not shown what estate the copyholders mentioned in the plea had in their customary tenements to which they claimed the sole and several pasture. [*105 Secondly, the custom is not good to exclude the lord for the whole year, and cannot have a good commencement; for, though the lord may grant it by deed to one or more freeholders, and therefore they may prescribe if the grant was before time of memory, yet he cannot grant it to his own customary tenants, on account of the debility of their estate, especially if they are only estates for life or years, as, for anything that appears to the contrary, they are. And, although it be true that by custom copyholders may have common in their lord's soil, because it is to be intended that it was with the permission of the lord at first for the better improvement of their copyhold estates, and the lord might very well spare such common, because he had enough besides for his own cattle, and by such constant usage it has at last arisen into a custom; yet there was not the same reason here, because no usage with the permission of the lord at first can wholly exclude the lord himself nolens volens, and vest all the interest in the copyholders, who at first were bare tenants at will to the lord. Thirdly, that it is not alleged that the copyholders have the sole pasture for their cattle levant and couchant on their tenements, for otherwise they cannot appropriate it to their tenements: and he cited Noy's Rep. 145, Jefferys and Boyd's case, where one prescribed for common appurtenant to land, and did not say for cattle levant and couchant, and therefore it was held ill. Saunders, for the plaintiff, as to the first exception, answered that it was not material to show what estate the copyholders have in their several customary tenements; because, be their several estates either in fee, or for life, or years, yet the custom hath annexed this sole pasture as a profit a prendre or perquisite to their estates for the time being; and they claim it by the custom of the manor, and [*106 not by prescription, for, they cannot prescribe at all against their own lord, nor against any other but only in the name of their lord: but it is otherwise with respect to any tenants of freehold estates at the common law, for, if they claim any such benefit, they must show their estates, and prescribe in the name of the tenant in fee by a que estate :