PERLEY ET UX. V. LANGLEY.

(7 New Hamp., 233. B. & W. L. C. 95. Superior Court of Judicature, 1834.) Custom and prescription distinguished-Profit a prendre. A custom gives a right local to a district or community; prescription is a right attaching to the person or to a particular estate.

Whether rights are held as a custom or as a prescription depends upon whether they are held as a local usage, or, contra, as a personal claim, or as dependent on a particular estate.

All rights which may be held under a custom may be held by prescription, but the reverse of this is not true.

A profit in another's land must be established as a prescription by the individual through his ancestors, or a corporation and its predecessors, or as appurtenant to some estate held by the claimant.

1No precedent for custom to take the soil. There are no authorities that sustain the removal of the soil, or the taking of profits from th soil of another, as a custom.

This was an action of trespass, for breaking and entering the plaintiff's close, and digging up and carrying away one thousand bushels of the plaintiff's soil and earth.

The defendant plead: ist. That the locus in quo was a public, navigable water, called Sandbornton Bay, from which the adjoining inhabitants have ever had, and ought to have, the right to take and carry away sand and earth; on which plea issue was taken to the country.

The defendant further plead that the locus in quo, from the time whereof the memory of man runneth not to the contrary, has been a place from which the inhabitants of Meredith Bridge village have had, and ought still to have, the right, liberty, and privilege to take and carry away sand at all times, for the purpose of mixing with clay and mortar, and that the defendant, as an inhabitant of said village, has such right, which he is ready to verify; which plea the plaintiffs demurred to.

The case was transferred to this court, for the determination of the matters in law raised in the second plea.

G. Y. SAWYER, for plaintiffs, argued in support of demurrer:

1. That the plea sets forth substantially either a "custom" or a "prescription."

'See cases cited in Mining Digest: Title "Custom."

2. If the former, it is a custom to take a "profit" in alieno solo, which all the authorities pronounce a bad custom.

3. If the latter, it should have been pleaded with a que estate. These positions are sustained by the following authorities: Co. Lit. 113, B; Bacon's Abridg. 669, Custom, A; Gateward's Case, 6 Co. Rep. 60; Selby v. Robinson, 2 Term Rep. 758; Grimstead v. Marlowe, 4 Term Rep. 717; Waters v. Lilley, 4 Pick. 145.

The rule laid down in the authorities is that a mere easement—as a way, a landing-place (Coolidge v. Learned, 8 Pick. 505), a right to dry nets (5 Co. Rep. S4)-may be claimed by custom, but a profit a prendre, which is an "interest" in the soil, and may be a right to take the products of the soil as a right of common (Gateward's Case, supra); or a right to take decayed wood (Selby v. Robinson, supra); or fish (Waters v. Lilley, supra); or to take a part of the soil itself, as a mine, etc., must be claimed by prescription, and pleaded with a que

estate.

The right claimed by the plea is to take a part of the soil, and is clearly a profit a prendre.

HAZELTON, for the defendant.

UPHAM, J.

The terms custom and prescription are often used as synonymous. They are alike in this respect-that no custom. or prescription can be legal but such as has been used time out of mind (Co. Lit. 110, 113), and they both have their obligation originally from the consent, either express or implied, of the parties who are bound by them. The ordinary forms of pleading a custom and prescription are the same, and the difference betwixt them does not generally depend on the nature of the claim set up. The same rights and privileges which may be claimed as a custom may also be claimed as a prescription. An easement upon another man's landsuch as a right of way-a right to turn a plow upon another man's land, or for a fisherman to mend his nets there-a right to have a gateway, or to pass quit of toll-may be sustained as a custom, or as a prescription.

If these rights are common to any manor, district, hundred, parish, or county, as a local right, they are holden as a custom; if the same rights are limited to an individual and his descendants, to a body politic and its successors, or are attached * to a particular estate, and are only exercised by those who have the ownership of such estate, they are holden as a prescription, which prescription is either personal in its character, or is a prescription in a que estate.

In order, therefore, to determine whether rights are holden as a custom or as a prescription, it is necessary to advert merely to the manner in which they are holden, whether as a local usage, or as a personal claim, or dependent on a particular estate. At the same time, there are certain rights that can be holden but in one way, and as a prescription.

All the rights that can be holden as a custom can be holden as a prescription, but not vice versa; and all rights holden as a custom, or as a prescription, are holden by prescription; that is, in the sense of the term here used, by usage; but this does not confound the distinction as to the tenure of those rights.

In this case the claim set up is not made as attaching to a person by inheritance, to a corporation, or an estate, but is claimed as a local right in the inhabitants of Meredith Bridge village. The claim is therefore made as a custom; and it becomes material to determine whether such a claim can be by

custom.

A distinction has been taken, in all the authorities, betwixt a profit taken from the soil of another, and a mere easement upon the soil. Rights a prendre-as the right to taking the herbage of the soil by cattle, a right to take away turf, peat, coal, sand or gravel-can not be alleged as in the inhabitants. of a town, and as a local custom. Such a claim must be sustained as a prescription by the individual through his ancestors, or in the name of a corporation and its predecessors, or as appurtenant to some estate holden by the claimant. mere residence is insufficient. It is not essential that such rights be prescribed for in a que estate, as holden in the language of 4 Term Rep. 717; for all rights that can be sustained. by prescription can be prescribed for in a man and his ancestors; and rights in gross can be prescribed for only in this manner, and can not be claimed in a que estate: 1 Lit. sec.

183; 1 Saund. 346. The inhabitants of a town, as such, or the inhabitants of the ancient houses of a town, can not claim a right of common, or other profit in alieno solo, as a custom, for the inhabitants may not have the inheritance: Co. Lit. 113 B; Gateward's Case, 6 Co. 60; 2 Cro. 152; 2 Id. 446; Com. Dig. Prescription, H.; Co. Lit. sec. 183, 120 B.; Mellor v. Spateman, 1 Saund. 346; Grimstead v. Marlowe, 4 D. & E. 717; Waters v. Lilley, 4 Pick. 145.

Inhabitants may prescribe for an easement in alieno solo, as for a way; for liberty to play at rural sports; to draw nets on another's land; to pass free of toll; for a public landingplace, etc.: Bacon's Abridg. Custom, C; Cro. Eliz. 180; Cro. Car. 419; 13 Petersdorff's Abr. Note, 502; Fetch v. Rawling, 2 Hen. Bl. 393; Millechamp v. Johnson, Willes, 205; Coolidge v. Learned, 8 Pick. 505; Sargeant v. Ballard, 9 Pick. 251. But there are no authorities that sustain the removal of the soil, or the taking of profits from the soil of another, as a custom. There is, therefore, no justification for the breaking and entering in this case upon such a plea.

Plea adjudged bad.

1. Forms of interrogatory in proving custom: Ecker v. Moore, 2 Pinn. 423; Post REPLEVIN.

2. Recitals in ancient deed held evidence of custom. In proof of custom evidence is not confined to things between the parties: Anglesey v. Hatherton, 10 M. & W. 218.

3. Custom can not control special contract: Randolph v. Halden, 44 Iowa, 327; Post LEASE.

4. To what extent local usage can affect mercantile law, see New York Mine v. Bank, 1 M. R. 453.

5. General customs enter into a lease-not the usage of lessor unless known to both parties: Beatty v. Gregory, 17 Iowa, 109; Post LICENSE. 6.

Ancient customs of British mining districts: Arkwright v. Cantrell, 7 A. & E. 565; Atty. Gen. v. Jackson, 5 Hare, 355.

7. Custom to work without leaving support to surface, held bad: Blackett v. Bradley, 1 B. & S. 940; Hilton v. Granville, 5 Q. B. 701.

8. Custom to use surface to sink pits, and land and store coals, without restriction either as to time or place, held bad and unreasonable: Broadbent v. Wilks, 1 Willes, 360.

9. Custom to wash for tin and pollute the water with tailings, held valid: Carlyon v. Lovering, 1 H. & N. 784; Post TIN STREAMING.

10. Custom to pollute streams with water from coal mines: Pennsylvania Co. v. Sanderson, 94 Pa. St. 302; Post NUISANCE.

11. Custom to take sand, held bad, as there can be no custom to take a

profit in alieno solo: Blewett v. Tregonning, 3 A. & E. 554. The same as to gravel: Constable v. Nicholson, 14 C. B. (N. S.) 230.

12. Custom of smelters to retain royalty for lessors: Alderson v. Ennor, 45 Ill. 123; Post LEASE.

13. Usage does not require all the evidence essential to prove custom: Carter v. Phi adelphia Coal Co., 2 M. R. 293.

14. Customs of miners on Pacific slope considered: Jennison v. Kirk, 98 U. S. 453; Post DITCH; see DISTRICT RULES.